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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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. : No. 1915 MDA 2019
:
JOSE E. CRUZ :
Appeal from the Order Entered October 21, 2019,
in the Court of Common Pleas of Schuylkill County
Criminal Division at No. CP-54-CR-0000748-2019
BEFORE: PANELLA, P.J., BENDER, P.J.E. AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED OCTOBER 22, 2020
The Commonwealth appeals the October 21, 2019 order, entered in the
Court of Common Pleas of Schuylkill County, granting, in part, and denying,
in part, Jose E. Cruz’ petition for writ of habeas corpus.1 After careful review,
we affirm the order.
The facts, as summarized by the trial court, are as follows:
On March 18, 2019, at 12:40 a.m., a dispatch went
out reporting that a male was attempting to force his
way into the residence at 507 Mahantongo Street in
the City of Pottsville and that a shot had been fired.
Corporal [Charles] Webber and Officers [Michael]
Messner and [Cory] Rainis responded to the scene.
Troopers [Christopher] Rooney and [Michael] Pahira
1 The Commonwealth’s appeal is proper because it has complied with
Pa.R.A.P. 311(d) (permitting the Commonwealth to appeal “from an order that
does not end the entire case where the Commonwealth certifies in the notice
of appeal that the order will terminate or substantially handicap the
prosecution”).
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also heard the dispatch and went to the scene to
assist, arriving shortly after the Pottsville officers.
When the officers approached the residence, they saw
Cruz standing on the front porch. He was told to raise
his hands and not to try entering the residence.
Instead, he walked down from the porch and crossed
the street, entering the side yard of the residence
which was bordered by a low wrought iron fence. As
he crossed the street, the officers were directing him
to get his hands up where they could see them, but
he kept his hands down by his side.
As he entered the yard, Cruz pulled out a handgun,
pointed at his own head, and pulled the trigger. It
failed to fire. As Cpl. Webber was yelling to Cruz not
to do it, Cruz pulled the gun down and manipulated
the slide, trying to rack a round. As he tried to
manipulate the slide on the gun, he was hit by a Taser
fired by Officer Rainis, and he dropped to the ground.
Cruz was lying on the ground, on his side, with his feet
pointing toward the officers, who were spread out on
the pavement but outside the fence. Officer Rainis
was activating the current from his Taser, which
appeared to have immobilized Cruz’s legs, but Cruz
was still moving his arms and trying to rack the slide
of his gun to chamber a round. He again began to
raise the gun to his head, and Troopers Rooney and
Pahira shot their Tasers at Cruz.
The Tasers were not blocking out the movement of
Cruz’s upper body. Cruz continued trying to
manipulate the slide on his gun. The slide was locked
to the rear, and the gun could not be fired with the
slide in that position. Cruz then moved his left hand
on top of the gun, extended the firearm and began
sweeping it toward Tpr. Rooney. The trooper only had
his Taser out. The fence in front of him offered no real
cover, and he was defenseless.
As Tpr. Rooney described it, Cruz was at the 12 o’clock
position, and Tpr. Rooney at 6 o’clock. Cruz was
sweeping the muzzle of his gun from twelve toward
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six. When it reached the 4 o’clock position,
Tpr. Rooney dropped to the ground and yelled to the
other officers to fire because Cruz was pointing the
gun at him. Cpl. Webber and Officer Messner both
fired their weapons.
Cruz was struck twice. The officers called for an
ambulance and treated his wounds until medical
personnel arrived.
Trial court opinion, 10/21/19 at 1-3 (abbreviations in original).
After a preliminary hearing on April 24, 2019, Cruz was held for court
on numerous charges stemming from the March 18, 2019 incident. On
May 13, 2019, a criminal information was filed charging Cruz with the
following criminal offenses:
Count 1: criminal attempt to commit criminal
homicide of a law enforcement officer;
Counts 2-6: assault of a law enforcement officer;
Counts 7-11: aggravated assault of a police officer;
Counts 12-16: aggravated assault with a deadly
weapon;
Count 17: person not to possess firearm;
Count 18: firearms not to be carried without a
license;
Count 19: possession with intent to deliver a
controlled substance;
Count 20: possessing instruments of crime;
Count 21: resisting arrest;
Count 22-26: recklessly endangering another person;
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Counts 27-31: criminal attempt to commit simple
assault; and
Count 32: possession of a controlled substance.2
See criminal information,3 5/13/19.
Cruz filed a petition for writ of habeas corpus on July 25, 2019. On
October 21, 2019, the trial court granted the motion in part, and dismissed
Counts 1 through 16 and 27 through 31. The motion was denied as to
Counts 23 to 26. The remaining counts were unaffected by the trial court’s
order. The same date, the Commonwealth appealed the October 21, 2019
order. The trial court ordered the Commonwealth to file a concise statement
of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). The
Commonwealth timely complied. Thereafter, the trial court filed its
Rule 1925(a) opinion, stating that it had addressed the issues raised in the
Commonwealth’s Rule 1925(b) statement in its opinion filed October 21,
2019.
The sole issue raised by the Commonwealth on appeal is:
Whether the [trial] court’s dismissal of charges was a
manifest abuse of discretion where the
Commonwealth established a prima facie case for
the charges of criminal attempt to commit murder of
a law enforcement officer, aggravated assault of a
2 18 Pa.C.S.A. §§ 901(a) [2507(a)], 2702.1(a), 2702(a)(2), 2702(a)(4),
6105(a)(1), 6106(a)(1), 35 P.S. § 780-113(a)(30), 18 Pa.C.S.A. §§ 907(b),
5104, 2705, 901(a) [2701(a)(2)], and 35 P.S. § 780-113(a)(16), respectively.
3On July 17, 2019, the trial court granted the Commonwealth’s uncontested
motion to amend the criminal information to correct the wording of
Counts 2-6. The amended information was filed July 23, 2019.
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police officer, and aggravated assault with a deadly
weapon, and the court’s resolution was contrary to the
standards for analyzing the sufficiency of evidence to
support a prima facie case?
Commonwealth’s brief at 4 (full capitalization omitted).
Our scope of review of a trial court’s decision to grant habeas corpus
relief is as follows:
When reviewing a trial court’s decision to grant a
habeas corpus petition, we will not reverse the trial
court’s decision absent a manifest abuse of discretion.
In order to constitute an abuse of discretion, the
record must disclose that the trial court exercised
manifestly unreasonable judgment or based its
decision on ill will, bias or prejudice. Furthermore, our
scope of review is limited to determining whether the
Commonwealth has established a prima facie case.
In criminal matters, a prima facie case is that
measure of evidence which, if accepted as true, would
justify the conclusion that the defendant committed
the offense charged.
Commonwealth v. Heckman, 66 A.3d 765, 768 (Pa.Super. 2013), appeal
denied, 83 A.3d 414 (Pa. 2013). “[T]he Commonwealth’s prima facie case
for a charged crime is a question of law as to which an appellate court’s review
is plenary.” Commonwealth v. Karetny, 880 A.2d 505, 513 (Pa. 2005).
A petition for writ of habeas corpus is the correct
method for a defendant to test whether the
Commonwealth has, before trial, established a
prima facie case. To demonstrate that a
prima facie case exists, the Commonwealth must
produce evidence of every material element of the
charged offense(s) as well as the defendant’s
complicity therein. In an effort to meet its burden,
the Commonwealth may utilize the evidence
presented at the preliminary hearing and also may
submit additional proof.
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Proof beyond a reasonable doubt is not required at the
habeas stage, but the Commonwealth’s evidence
must be such that, if accepted as true, it would justify
a trial court in submitting the case to a jury.
Additionally, in the course of deciding a habeas
petition, a court must view the evidence and its
reasonable inferences in the light most favorable to
the Commonwealth. Suspicion and conjecture,
however, are unacceptable.
Commonwealth v. Predmore, 199 A.3d 925, 928-929 (Pa.Super. 2018)
(citations omitted), appeal denied, 208 A.3d 459 (Pa. 2019).
The Commonwealth claims that:
The [trial] court exercised manifestly unreasonable
judgment as demonstrated by the court’s failure to
view the evidence in the light most favorable to the
Commonwealth and to give effect to reasonable
inferences drawn from the evidence, in contravention
of the standards for reviewing and analyzing the
sufficiency of evidence to support a prima facie case.
Commonwealth’s brief at 9-10. With respect to criminal attempt to commit
criminal homicide of a law enforcement officer, the Commonwealth argues
that Cruz “took a substantial step toward the commission of first-degree
murder of a law enforcement officer when he racked the slide of his gun and
pointed it at Trooper Rooney.” (Id. at 11.) The Commonwealth contends that
although Cruz initially wished to commit suicide, his intent “shifted to a
homicidal intent when he decided to point his weapon at Trooper Rooney.”
(Id.)
A criminal attempt occurs when a person, “with intent to commit a
specific crime, does any act which constitutes a substantial step toward the
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commission of that crime.” 18 Pa.C.S.A. § 901(a). “A person commits murder
of a law enforcement officer of the first degree who intentionally kills a law
enforcement officer while in the performance of duty knowing the victim is a
law enforcement officer.” 18 Pa.C.S.A. § 2507.
In the case of attempted murder, “a person may be
convicted if he takes a substantial step toward the
commission of a killing with the specific intent in mind
to commit such an act.” Commonwealth v. Dale,
836 A.2d 150, 153 (Pa.Super. 2003) (citations
omitted). The intent to kill must be shown.
Commonwealth v. Griffin, 456 A.2d 171, 178
(Pa.Super. 1983). The firing of a bullet in the general
area of vital organs can alone be sufficient to prove
specific intent to kill. See Commonwealth v.
Manley, 985 A.2d 256, 272 (Pa.Super. 2009). As this
[c]ourt held in Commonwealth v. Mapp, 335 A.2d
779, 781 (Pa.Super. 1975), an attempted murder is
completed by the discharge of a weapon at a person
with intent to kill, even if no injury results.
Commonwealth v. Markowski, 2020 WL 3960358, *2 (Pa.Super. July 13,
2020) (unpublished memorandum).
[A]ttempted murder is composed of two primary
elements. The mens rea element of the offense is
specific intent to kill, which is identical to the
mens rea element of murder in the first degree. The
actus reus element of the offense is the commission
of one or more acts which collectively constitute a
substantial step toward the commission of a killing.
Commonwealth v. Predmore, 199 A.3d 925, 929 (Pa.Super. 2018), appeal
denied, 208 A.3d 459 (Pa. 2019).
In order to present a prima facie case that Cruz attempted to murder
Trooper Rooney, the Commonwealth had to present evidence that Cruz had
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the specific intent to kill the trooper and committed an act which constituted
a substantial step toward that end. See Commonwealth v. Blakeney, 946
A.2d 645, 652 (Pa. 2008). Here, the trial court found that the Commonwealth
did not present prima facie evidence that Cruz had the intent to kill
Trooper Rooney.
Cruz had made no statements expressing a desire to
kill or even harm any of the officers. He had already
tried to shoot himself at least once when he pointed
the gun at his [appellant’s] head and pulled the
trigger. He was raising the gun again towards his
head when he was [t]ased. Although
[Trooper] Rooney could not see the slide as Cruz
swept the gun in his direction, the slide was still back
when Officer Messner picked up the gun to clear it.
He testified that he had to clear a spent cartridge, and
Cruz had not successfully fired the gun while the
officers were present. The gun could not be fired with
the slide in the rear position, a fact which does not
support an intent to kill.
Trial court opinion, 10/21/19 at 8. We find the trial court did not abuse its
discretion in granting Cruz’ petition for writ of habeas corpus as to the charge
of criminal attempt to commit criminal homicide of a law enforcement officer.
The Commonwealth next contends that it established a prima facie
case of the aggravated assault of a police officer, 18 Pa.C.S.A. § 2702.1(a).
The Commonwealth asserts that the elements of proof for aggravated assault
of a police officer “are essentially the same as for criminal attempt to commit
murder of a law enforcement officer,” and “incorporates by reference its
argument and reasoning” set forth in support of the latter. (Commonwealth’s
brief at 13 (extraneous capitalization omitted).) The Commonwealth further
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contends that Cruz committed aggravated assault against Officers Messner
and Rainis, Corporal Webber, and Trooper Pahira, based on the doctrine of
transferred intent, because Cruz pointed the gun at Trooper Rooney. (Id.)
The Commonwealth’s arguments are without merit.
Pursuant to Section 2702.1 of the Pennsylvania Crimes Code, a person
commits “assault of [a] law enforcement officer” when he “attempts to cause
or intentionally or knowingly causes bodily injury to a law enforcement officer,
while in the performance of duty and with knowledge that the victim is a law
enforcement officer, by discharging a firearm.” 18 Pa.C.S.A. § 2702.1(a).
[I]n order for the Commonwealth to establish a
prima [facie] case for the offense of assault of law
enforcement officer . . . the Commonwealth is
required to set forth evidence that: (1) the defendant
attempted to cause, or intentionally or knowingly
caused, bodily injury, (2) the victim was a law
enforcement officer acting in the performance of his
duty, (3) the defendant had knowledge the victim was
a law enforcement officer, and (4) in attempting to
cause, or intentionally or knowingly causing such
bodily injury, the defendant discharged a firearm.
Commonwealth v. Landis, 48 A.3d 432, 445 (Pa.Super. 2012).
The Commonwealth presented no evidence that Cruz discharged his
firearm. In fact, as noted by the trial court, when Officer Messner picked up
the gun, he had to clear a spent cartridge, and the gun could not be fired with
the slide in the rear position. (See trial court opinion, 10/21/19 at 8.) As the
Commonwealth could not establish this crucial element of aggravated assault
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of a police officer, the trial court properly granted habeas corpus relief as to
these charges.
Lastly, the Commonwealth contends the trial court abused its discretion
in not finding a prima facie case of aggravated assault with a deadly weapon,
18 Pa.C.S.A. § 2702(a)(4). The Commonwealth again asserts that the
elements of proof for aggravated assault with a deadly weapon “are
substantially the same as criminal attempt to commit murder of a law
enforcement officer and aggravated assault of a police officer” and
“incorporates by reference its argument and reasoning” set forth in support of
those offenses. (Commonwealth’s brief at 15 (extraneous capitalization
omitted).) No further argument is advanced by the Commonwealth.
“A person is guilty of aggravated assault if he attempts to cause or
intentionally or knowingly causes bodily injury to another with a deadly
weapon.” 18 Pa.C.S.A. § 2702(a)(4). When, as here, the alleged victim does
not sustain serious bodily injury, the Commonwealth must prove that the
appellant acted with specific intent to cause serious bodily injury. See
Commonwealth v. Holley, 945 A.2d 241, 247 (Pa.Super. 2008), appeal
denied, 959 A.2d 928 (Pa. 2008). The trial court found that the
“Commonwealth’s evidence [was] deficient regarding the specific intent to
cause serious bodily injury for the same reasons it failed to prove intent to
kill.” (See trial court opinion, 10/21/19 at at 9.) We discern no abuse of
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discretion on the part of the trial court in dismissing the charges of aggravated
assault with a deadly weapon.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/22/2020
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