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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
DARREN BURCH
Appellee No. 1219 EDA 2014
Appeal from the Order March 18, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0000329-2014
BEFORE: MUNDY, J., OLSON, J., and MUSMANNO, J.
MEMORANDUM BY MUNDY, J.: FILED JULY 21, 2015
The Commonwealth appeals1 from the March 18, 2014 order, denying
its motion to refile certain charges stemming from a robbery in Philadelphia,
after the municipal court dismissed the same against Appellee, Darren
Burch.2 After careful review, we reverse and remand for further
proceedings.
The trial court summarized the relevant factual history of this case as
follows.
At the preliminary hearing in this case, Elliott
Weiss testified that he was with a friend on the 2100
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1
The Commonwealth has certified in its notice of appeal that the trial court’s
order terminates or substantially handicaps its prosecution pursuant to
Pennsylvania Rule of Appellate Procedure 311(d).
2
We note that Appellee has elected not to file a brief in this matter.
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block of Catherine Street in Philadelphia at
approximately 10:15 p.m. on December 1, 2013[,]
when two males came up from behind. One man put
his arm around Mr. Weiss’ neck, placed a gun to his
head and demanded that he give them his cell
phone. Mr. Weiss complied by reaching into his coat
pocket and handing over the phone. The assailants
then turned around and took a couple steps before
demanding to see Mr. Weiss’ wallet. Mr. Weiss
immediately opened his wallet, took out the cash and
handed it to one of the men.
When the robbers left, Mr. Weiss called “911”
from his friend’s cell phone. In that call he described
both of his assailants as clean shaven. He estimated
one man’s height as 5’10” and the other as 5’7”.
Philadelphia Police Officer Carmen Palmiero testified
that the only description he received in the radio call
about the robbery was two black males in their mid-
twenties wearing dark clothing. Although Mr. Weiss
identified [Appellee] in a one-on-one identification
procedure shortly after the incident, when asked by
the prosecutor if he saw any of his assailants in the
courtroom, he hesitated for approximately 10 to 15
seconds and then said he was not sure. On cross-
examination, Mr. Weiss reiterated that he did not
know if [Appellee] was one of the men who robbed
him. Further, when counsel pointed to [Appellee]’s
full mustache, beard and side burns, facial hair that
he had at the time of his arrest, Mr. Weiss agreed
that had [Appellee] been the robber he would not
have described him as clean shaven.
Officer Palmiero was responding to the radio
call of the robbery when he observed two black
males walking in the area of the 1900 block of
League Street. The men faced in the officer’s
direction and then made a quick left onto another
block where Officer Palmiero observed [Appellee]
crouched down between two parked cars stuffing an
item into a backpack. Officer Palmiero drew his
weapon and apprehended [Appellee] after a quick
foot pursuit. A search of the bag revealed a loaded
semiautomatic Tec-9. The officer admitted that he
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had no information that either perpetrator had a
backpack or used a Tec-9 in the robbery. No phone,
cash or any other proceeds from the robbery were
found in [Appellee]’s possession.
Philadelphia Police Officer Mark Palazzi pursued
the other male (Hickman) eastbound on the 1900
block of League Street. During the chase, the officer
observed that male discard a black handgun in front
of 1905 League Street. As Officer Palazzi continued
to chase this male around the corner he saw him
discard an iPhone in a red case. Mr. Weiss was
brought to the location where this male was finally
apprehended and identified him as one of the
robbers.
Trial Court Opinion, 1/16/15, at 1-3.
The Commonwealth sought to charge Appellee with one count each of
robbery, criminal conspiracy, possession of a firearm, firearms not to be
carried without a license, theft by unlawful taking, receiving stolen property,
carrying firearms in public in Philadelphia, possession of an instrument of a
crime (PIC), simple assault, and recklessly endangering another person.3
The municipal court conducted a preliminary hearing on January 9, 2014. At
the conclusion of said hearing, the municipal court dismissed all charges
against Appellee for lack of evidence, except for the charges of firearms not
to be carried without a license and PIC. On January 16, 2014, the
Commonwealth filed a notice of its intent to refile the entire original criminal
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3
18 Pa.C.S.A. §§ 3701(a)(1)(i), 903, 6110.2(a), 6106(a)(1), 3921(a),
3925(a), 6108, 907(a), 2701(a) and 2705, respectively.
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complaint, including the dismissed charges, in the trial court. 4 The trial
court treated the Commonwealth’s notice of its intent, as a motion to refile
the dismissed charges, and denied the same on March 18, 2014. On April
17, 2014, the Commonwealth filed a timely notice of appeal.5
On appeal, the Commonwealth raises one issue for our review.
Properly viewed in the light most favorable to the
Commonwealth, did the evidence showing that two
witnesses identified [Appellee] minutes after the
robbery near the crime scene establish a prima facie
case of robbery, conspiracy, and related offenses?
Commonwealth’s Brief at 4.
We begin by noting our well-settled standard of review. A preliminary
hearing is similar to a pre-trial habeas corpus hearing. Commonwealth v.
Black, 108 A.3d 70, 77 (Pa. Super. 2015) (citation omitted). The purpose
of such a hearing is to determine whether the Commonwealth had made out
a prima facie case for the offenses charged. Commonwealth v. Jackson,
849 A.2d 1254, 1257 (Pa. Super. 2004) (citation omitted). “A prima facie
case consists of evidence, read in the light most favorable to the
Commonwealth, that sufficiently establishes both the commission of a crime
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4
We note that the municipal court’s decision was non-appealable as this
Court has held an attempt at reinstituting the dismissed charges is the
Commonwealth’s only recourse. Commonwealth v. Carbo, 822 A.2d 60,
64 (Pa. Super. 2003) (en banc) (citation omitted).
5
The Commonwealth and the trial court have complied with Pennsylvania
Rule of Appellate Procedure 1925.
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and that the accused is probably the perpetrator of that crime.” Black,
supra. Proof beyond a reasonable doubt is not required. Id.
We have held that in determining the presence or
absence of a prima facie case, inferences reasonably
drawn from the evidence of record that would
support a verdict of guilty are to be given effect, but
suspicion and conjecture are not evidence and are
unacceptable as such. Further, since a trial court
must view the evidence in the light most favorable to
the Commonwealth when ruling upon a petition for
writ of habeas corpus, it is inappropriate for the trial
court to make credibility determinations in deciding
whether the Commonwealth established a prima
facie case.
Id. Similar to an order granting a habeas petition, we will reverse such an
order only if the trial court committed a manifest abuse of discretion.
Carbo, supra at 63.
In this case, the trial court denied the Commonwealth’s motion to
refile the previously dismissed charges based on the fact that there was
insufficient evidence to establish identity. Trial Court Opinion, 3/26/15, at 4.
The Commonwealth counters in its brief that it did present sufficient
evidence of Appellee’s identity to establish its prima facie case. Specifically,
the Commonwealth avers that it met its burden primarily because when “the
victim was brought to [Appellee]’s location, he immediately identified
[Appellee] as one of his assailants.” Commonwealth’s Brief at 15. The
Commonwealth further points out that an eyewitness also identified Appellee
as one of the perpetrators. Id. at 15-16.
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At the preliminary hearing, Weiss testified that at the time he made
his initial identification of Appellee on the night of the offenses, he identified
Appellee as one of his assailants, and that he was entirely sure of said
identification at the time. N.T., 1/9/14, at 9. In addition, Officer Palmiero
testified and corroborated that Weiss “immediately” identified Appellee as
one of his assailants. Id. at 26. Officer Palmiero also stated that Weiss’
female friend, who was with him at the time of the robbery, upon seeing
Appellee, “started hysterically crying saying, yes, that’s him[.]” Id. at 27.
The trial court acknowledged the above testimony. Trial Court
Opinion, 1/16/15, at 4. However, the trial court denied the Commonwealth’s
motion to refile the charges based on the following rationale.
Here, the victim of the robbery testified that he
was sure his assailants were clean shaven. This
testimony was at odds with the fact that [Appellee]
had a full mustache, beard and side burns when he
was arrested shortly after the incident. The incident
took place at night and happened very quickly.
Although Mr. Weiss identified [Appellee] in an on the
street one-on-one identification procedure
approximately fifteen minutes after the robbery, he
was unable to identify him at the preliminary hearing
and repeatedly stated that he was not at all sure if
[Appellee] was one of the men who robbed him.
Further, [Appellee] was not in possession of any of
the proceeds of the robbery when arrested, and the
firearm in his possession was not the weapon used in
the incident. The fact that he was in unlawful
possession of a firearm at the time [the] police
approached him provides an independent reason for
his flight from the officers.
Id.
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After careful review of the certified record, we conclude the trial court
erred in denying the Commonwealth’s motion. The trial court’s cardinal
reason for denying the Commonwealth’s motion was that Weiss’ in-person
identification on the night of the robbery contradicted the fact that “he was
unable to identify him at the preliminary hearing.” Id. The trial court
further stated that Weiss believed his assailants to be clean shaven, but
Appellee was not. Id. Respectfully, in our view, the only way the trial court
could reach this conclusion was by weighing the evidence, i.e. the two
identifications against one another. Stated another way, the trial court
essentially credited Weiss’ lack of identification at the preliminary hearing
and rejected his identification on the night of the incident. It is axiomatic
that “it is inappropriate for the trial court to make credibility determinations
in deciding whether the Commonwealth established a prima facie case.”
Black, supra; see also Commonwealth v. Marti, 779 A.2d 1177, 1180
(Pa. Super. 2001) (stating, “the weight and credibility of the evidence are
not factors at [the pre-trial] stage, and the Commonwealth need only
demonstrate sufficient probable cause to believe the person charged has
committed the offense[]”). The trial court essentially made a credibility
determination, which is exclusively the role of the fact-finder at a trial. As a
result, we conclude the trial court abused its discretion when it denied the
Commonwealth’s motion to refile the charges. Carbo, supra.
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Based on the foregoing, we conclude the trial court erred when it
denied the Commonwealth’s motion to refile the charges that were
dismissed by the municipal court. Accordingly, the trial court’s March 18,
2014 order is reversed, and the case is remanded for further proceedings,
consistent with this memorandum.
Order reversed. Case remanded. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/21/2015
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