The Pennsylvania Superior Court has decided the case of Commonwealth v. Parrish, reversing the defendant’s conviction for Possession with the Intent to Deliver (“PWID”), Conspiracy, Possession of a Controlled Substance, Paraphernalia, and gun charges such as Violation of the Uniform Firearms Act Section 6106. In Parrish, the Superior Court found that the evidence was insufficient to convict Parrish of the gun and drug charges because Parrish was merely the back seat passenger in a car which had guns and drugs in the front of the car.
The Facts of Commonwealth v. Parrish
Parrish involved a motor vehicle stop. Police pulled a car over in Luzerne County for having illegally tinted windows. The vehicle pulled over on command, but as police approached the car, they noticed that it was rocking back and forth as if people were moving around inside of it. They could not see what caused the rocking because of the tinted windows. When the police got up to the car, the driver of the car rolled down the window. The officers immediately smelled marijuana and saw a plastic bag containing marijuana in plain view. They also saw the driver straddling the center console between the two front seats and the grip of a silver handgun protruding from under the front passenger seat. Obviously, that is a strange place for the driver of the car to sit. They saw the defendant, Parrish, seated behind the driver’s seat with his hands on the headrest of the driver’s seat.
Because they saw drugs and a gun in plain view, the officers immediately arrested the driver and Parrish. They searched the entire car. They found a black bag on the passenger side in the front of the car. That bag contained a loaded gun, 250 packets of heroin, 12 packets of methamphetamine, a baggie of loose heroin, two scales, and other drug paraphernalia and ammunition. They found marijuana on the passenger-side door and a .40 caliber handgun protruding from underneath the front passenger-side seat. The glove compartment contained an extra magazine of bullets, and in the trunk, they found a bulletproof vest. They found $1,335 in cash on the defendant and $2,168 on the driver. Parrish cooperated with the police during his arrest. He gave his real name, and he did not attempt to run.
Gun and Drug Charges Based on Constructive Possession
Police charged Parrish with various drug and gun charges, as well as Receiving Stolen Property. Before trial, the court separated the felon in possession of a firearm charge from the remaining charges so that the jury would not be prejudiced by knowing that the defendant had a prior criminal record. The defendant then proceeded by way of jury trial, and the jury convicted him of all charges.
At trial, police testified to the above facts. They also confirmed that Parrish was not the registered owner of the car, and he did not have a key to the glove compartment or trunk. Police also believed that based on the positions of the men in the car, the defendant was probably not the driver. They did not test any of the items for fingerprints or DNA. The Commonwealth also presented an expert witness to testify that based on the totality of the circumstances, the drugs in the bag were likely for sale and possessed with the intent to deliver.
In this case, the defense presented evidence, as well. The defendant called a friend to testify that he had been at a party at the friend’s house all afternoon on the day of the arrest. Parrish stayed at the party until approximately 2 am. The friend then asked the driver of the car to drive the defendant home. When the defendant left the party, he was not carrying a satchel or any kind of bag. The friend also saw defendant lay down in the back seat when the defendant got into the car. The jury convicted the defendant of all charges, and the trial court sentenced him to 88 to 176 months of incarceration in state prison.
The Appeal of the Criminal Case
The defendant filed post-sentence motions for reconsideration of the sentence, for a new trial, and for discovery which the prosecution had apparently not provided prior to trial. The trial court denied those motions, and the defendant appealed to the Superior Court. On appeal, the defendant raised four issues:
- whether the evidence was sufficient to sustain the convictions,
- whether the trial court should have awarded a new trial based on the weight of the evidence,
- whether the court abused its discretion in allowing one of the police officers to testify as an expert witness that the fact that there were two guns in the car meant that one probably belonged to the defendant, and
- that the sentence was illegal because the court ordered a restitution payment in a case with no victim.
The Superior Court’s Decision
The Superior Court only addressed the first issue because it resolved the case in the defendant's favor. The court noted that sufficiency of the evidence claims involve viewing all of the evidence admitted at trial in the light most favorable to the verdict winner and determining whether there is sufficient evidence to enable the fact-finder to find every element of the crime beyond a reasonable doubt. Additionally, a conviction may be sustained entirely based on circumstantial evidence, but a jury is not permitted to simply guess.
Here, the jury convicted Parrish of both gun charges and drug charges. Both types of charges required the prosecution to prove beyond a reasonable doubt that Parrish possessed the illegal items. Because the items were not physically on him, the prosecution’s case depended on a constructive possession theory. Possession can be found by proving actual possession, constructive possession, or joint constructive possession. Constructive possession exists when the defendant has the power to control the contraband and the intent to exercise that control. It may be proven by circumstantial evidence. At the same time, the defendant’s mere presence at the place where contraband is found or secreted is insufficient, standing alone, to prove that he exercised dominion or control over the items. Location and proximity to contraband alone are thus not conclusive of guilt. Instead, the Commonwealth must be able to prove at least that a defendant knew of the existence and location of the contraband.
Here, the court reversed the conviction because the defendant was sitting in the back of the car and all of the guns and drugs were in the front. Further, the evidence established that Parrish was not carrying any type of bag when he entered the car, he did not have the keys to the car, and he was not the owner or operator of it. There was no evidence that he had ever been seated in either of the car’s front seats. Neither of the recovered firearms was registered to him, and the police had failed to test any of the items for fingerprints or DNA. The Commonwealth also failed to present any evidence whatsoever that the defendant knew of the contents of the black bag in the front because the bag was opaque. The court also rejected the idea that the defendant could have moved from the front of the vehicle to the back due to his height and weight and the size of the vehicle. The court also ignored the testimony of the Commonwealth’s expert witness, which was likely improper, and it ultimately reversed the defendant’s conviction.
Facing criminal charges? We can help.
Constructive possession is an issue that often comes up in gun cases and drug cases. In many cases involving traffic stops, the contraband in the vehicle is not actually physically on the defendant. In these types of cases, there are often defenses based on constructive possession because the prosecution may not be able to prove who in the car, if anyone, possessed the prohibited items. Even where the drugs or guns are in the actual possession of the defendant, there may be constitutional defenses to the search and seizure of the vehicle and its occupants. If you are facing criminal charges or under investigation for contraband recovered during a car stop, we can help. We offer a free criminal defense strategy session to each potential client. Call 267-225-2545 to speak with an experienced and understanding Philadelphia criminal defense lawyer today.
The Pennsylvania Superior Court has decided the case of Commonwealth v. Bond, affirming the defendant’s conviction but limiting the circumstances under which the prosecution may use a “forensic interview” in a criminal child molestation case. Although the court affirmed Bond’s conviction on a harmless error theory due to his incriminating statements, the court also found that the trial court erred in permitting the Commonwealth to play the entire videotaped forensic interview of the minor complainant in an case involving Involuntary Deviate Sexual Intercourse (“IDSI”), unlawful contact with a minor, aggravated indecent assault, and indecent assault charges.
The Facts of Commonwealth v. Bond
In Bond, the defendant was charged with Involuntary Deviate Sexual Intercourse and related charges for allegedly molesting his girlfriend’s daughter. Shortly after the one incident of alleged sexual contact, the complainant reported the incident to her aunt. The aunt immediately told the child’s mother, and the mother called the police. The child was subsequently interviewed by a “forensic interview specialist” with the Philadelphia Children’s Alliance (“PCA”). The prosecution played a video of the interview for the jury during the trial.
At the end of the trial, the jury found the defendant guilty of all charges. The sentencing judge imposed a sentence of 27.5 – 55 years in state prison. The defendant filed a motion to reconsider the sentence and for a new trial, and the trial judge denied those motions. The defendant then appealed to the Superior Court.
The Superior Court Appeal
In the appeal, Bond challenged the trial court’s decision to allow the Commonwealth to play the video of the PCA Interview. By way of background, PCA is an organization in Philadelphia which contracts with the police to help investigate child abuse cases. In almost all Philadelphia child abuse and child molestation cases, the investigating Special Victims Unit detective refers the case to PCA in order to have a PCA employee conduct a videotaped, recorded video of the complainant. The PCA interview is supposed to be conducted in an environment in which the child will feel more comfortable and in which the investigator will ask non-leading questions so as to avoid suggesting incriminating answers to the complainant. In practice, PCA procedures produce mixed results. In some interviews, the interviewers are relatively neutral, but in others, they appear to act more like an arm of law enforcement and not as a neutral, unbiased interviewer. PCA handles these interviews in Philadelphia, but most law enforcement agencies in counties throughout Pennsylvania rely on similar organizations to conduct these “forensic interviews.”
The Issues on Appeal
Bond’s appeal focused on the issue of whether the PCA interview video should have been played for the jury. In general, when a witness makes an out-of-court statement, the statement will not be admissible in court because it will be hearsay. The criminal justice system in the United States is based on the principles of in-court testimony and cross-examination, meaning that in most cases, a live witness will have to testify to what happened in court. The prosecution may not simply call witnesses to testify as to what other alleged witnesses said previously or to play videotaped statements. However, there are a number of exceptions to the rule against hearsay which could allow for an out-of-court, videotaped statement like a PCA interview to be played at trial.
Prior Consistent Statements in Criminal Cases
In this case, the trial court permitted the Commonwealth to play the videotaped interview under Pennsylvania Rule of Evidence 613(c). The rule provides that under some circumstances, a witness’s prior consistent statement may be used to rehabilitate a witness who has been impeached and had his or her credibility attacked by the defense on cross-examination.
Rule 613(c) provides:
(c) Witness’s Prior Consistent Statement to Rehabilitate. Evidence of a witness’s prior consistent statement is admissible to rehabilitate the witness’s credibility if the opposing party is given an opportunity to cross-examine the witness about the statement and the statement is offered to rebut an express or implied charge of:
(1) fabrication, bias, improper influence or motive, or faulty memory and the statement was made before that which has been charged existed or arose; or
(2) having made a prior inconsistent statement, which the witness has denied or explained, and the consistent statement supports the witness’s denial or explanation.
However, as the court eventually ruled, more is required for a prior consistent statement to become admissible than just that the complainant or witness has been impeached or accused of lying. Instead, the court recognized that “[T]o be admissible to rebut a charge of improper motive, as is the case here, the prior consistent statement must have been made before the motive to lie existed.” Further, a prior consistent statement, if admissible at all, is admissible only as rebuttal or rehabilitation evidence. It is not admissible as substantive evidence. The difference here is that substantive evidence may be considered by the jury as evidence of a defendant's guilt, whereas rebuttal or rehabilitation evidence may be considered by the jury only in assessing the credibility of the witness’s original testimony.
In this case, Bond argued that the trial court erred in admitting the video because the case did not involve any prior statements that predated the complainant’s motive to fabricate. His defense attorneys argued at trial that the complainant fabricated the allegations from the beginning because she did not like living with her mother and Bond and she was upset about the absence of her natural father, who was in jail. He argued that Rule 613 permits prior consistent statements only when the statement predates the alleged fabrication, bias, improper influence or motive, or faulty memory. Therefore, because the defense lawyers suggested that the fabrication existed from the start, the video which was taken after the allegations were made, was not actually a prior consistent statement because it did not predate the false allegations.
The Superior Court ultimately agreed. It found that the statement was not a prior consistent statement because it was not prior to anything – the videotaped interview was not recorded prior to the date on which the defense claimed that the child began fabricating the allegations. Therefore, the statement should not have been admitted as a prior consistent statement pursuant to Rule 613.
Unfortunately for Bond, the Superior Court nonetheless affirmed the conviction for two reasons. First, the Court found that the admission of the video was harmless error. The defense had extensively cross-examined the complainant on what she said at the interview, so the jury had already heard a great deal about it. Additionally, the defendant had made a number of incriminating statements, including texting the complainant’s mother that he was sorry and very scared about what had done. He also took steps to try to avoid having the complainant testify. Second, the Court held that because defense counsel had asked so many questions about the testimony on the video, the trial court also properly admitted it into evidence under Pennsylvania Rule of Evidence 106.
Rule 106 is basically the rule of completeness. It provides that:
If a party introduces all or part of a writing or recorded statement, an adverse party may require the introduction, at that time, of any other part--or any other writing or recorded statement--that in fairness ought to be considered at the same time.
Thus, because the defendant’s attorneys asked so many questions about the videotaped statement, it was only fair for the Commonwealth to actually play the video and let the jury see the whole thing.
Although things did not work out for Bond in this case, the case is actually incredibly important for anyone facing child abuse allegations. In general, these PCA videos and forensic interviews can be very damaging for the defense as they allow the Commonwealth to play a video of the child often being led into saying incriminating things by the interviewer where the child does not have to testify in public or face cross-examination. The story that comes out on the witness stand is often different from the testimony in the PCA video, and so allowing the Commonwealth to supplement its live testimony with pre-recorded, coached videos in any case in which the defense attacks the complainant’s credibility is incredibly unfair. This decision strongly protects the rights of a criminal defendant to face his or her accusers in court and for the defense to cross-examine witnesses before the judge or jury. The prosecution may not rely on out of court hearsay simply because it is easier or better for them.
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If you are facing criminal charges, we can help. Our award-winning Philadelphia criminal defense lawyers have successfully defended thousands of clients. We are experienced and understanding defense attorneys with the skill and expertise to fight even the most serious cases at trial, on appeal, and in Post-Conviction Relief Act litigation. We offer a complimentary 15-minute criminal defense strategy session to each potential client. Call 267-225-2545 to speak with a defense lawyer today.