Com. v. Smith, J.

J-S16036-23

2023 PA Super 199

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JAMES SMITH :
:
Appellant : No. 1910 EDA 2022

Appeal from the Order Entered July 26, 2022
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): MC-51-CR-0006183-2021

BEFORE: DUBOW, J., MURRAY, J., and McCAFFERY, J.

OPINION BY McCAFFERY, J.: FILED OCTOBER 11, 2023

The Commonwealth appeals from the order entered in the Philadelphia

County Court of Common Pleas denying it permission to refile criminal charges

against James Smith (Appellee), an inspector in the Philadelphia Police

Department, for his participation in an alleged assault that occurred while he

was off duty. On appeal, the Commonwealth contends it presented sufficient

evidence to establish a prima facie case that Appellee and his co-defendant1

____________________________________________

1 Appellee’s co-defendant was Philadelphia Police Detective Patrick Smith, who

was also off duty at the time of the incident. Appellee states in his brief that
Detective Smith is his brother. See Appellee’s Brief at 2. The cases were
heard together, and the trial court also dismissed the same charges filed
against Detective Smith. The Commonwealth filed an identical appeal, which
is docketed at 1911 EDA 2022 before this same panel.
J-S16036-23

committed simple assault, criminal conspiracy, and recklessly endangering

another person (REAP).2 For the reasons below, we affirm.

The charges against Appellee arose from an incident that occurred

during the late evening hours of August 18, or the early morning hours of

August 19, 2020. Appellee and his co-defendant were both charged with

simple assault, criminal conspiracy and REAP. A joint preliminary hearing was

conducted on February 22, 2022, before Philadelphia Municipal Court Judge

William Austin Meehan, Jr., where the following evidence was presented by

the Commonwealth.

Complainant Paul McNally testified that, in the late evening hours of

August 18 into the early morning hours of August 19, 2020, he was “taking a

walk in the neighborhood” of Knights and Fairdale Road to “clear [his] mind”

before a job interview scheduled for the next day. N.T., 2/22/22, at 7.

McNally stated that he “was approached by a blue Mazda SUV” with two

occupants whom he did not know. Id. at 8. The two occupants ─ one of

whom he identified as Appellee3 ─ “accused [him] of breaking into cars” and

told him “they got [him] on video or something like that.” Id. at 9-10; see

also id. at 16 (McNally stated the officers asked[,] “Are you the one breaking

into cars?”). He stated the men “claimed to be part of Town Watch[.]” Id. at

____________________________________________

2 See 18 Pa.C.S. §§ 2702(a)(1), 903(a), and 2705, respectfully.

3 At the preliminary hearing, McNally could not identify co-defendant as one

of the men who purportedly assaulted him. See N.T., 2/22/22, at 14.

-2-
J-S16036-23

21. At the hearing, McNally denied that he had been “looking in any vehicles”

or lifting car door handles. See id. at 8, 15.

McNally claimed that he was nervous the men “were going to do

something[,]” or possibly “abduct” him, so he ran away. N.T., 2/22/22, at 9,

17. He stated that as the men followed him, he called “his mother in a panic.”

Id. at 11. McNally testified that before he had the opportunity to call 911, the

men “knocked [him] to the wall.” Id. He elaborated: “They manhandled me

and threw me to the wall.” Id. at 12. See also id. at 20 (“[t]hey slammed

me against the wall[;]” they “threw me against the pillar in the shopping

center.”). McNally testified that “the wall slammed the side of [his] head” and

he sustained bleeding on the back of his head, a black eye and bruises on his

legs and arms.4 Id. at 11-12. He further stated that once he was on the

ground, the two men “immobilized” him until uniformed police officers arrived.

See id. at 21.

The following exchange occurred during his cross-examination:

[Appellee’s counsel:] So it’s your testimony there were two
individuals that caught up to you, not one?

[McNally:] Yes.

[Appellee’s counsel:] And you said they threw you up against the
wall?

[McNally:] Yes.

____________________________________________

4 McNally claimed that the day after the incident he “went to Urgent Care and

got [his injuries] looked at.” N.T., 2/22/22, at 22. He did not further elaborate
on the extent of his injuries.

-3-
J-S16036-23

[Appellee’s counsel:] To stop you from running; is that right?

[McNally:] Yes.

[Appellee’s counsel:] Because they were claiming you were
looking into cars and trying car handles; is that right?

[McNally:] Yes. They – they assaulted me.

* * *

[Appellee’s counsel:] You were trying to get away from them as
they were trying to keep you there at that location; is that right?

[McNally:] Yes, that’s correct.

N.T., 2/22/22, at 20-21.

After McNally’s testimony, the Commonwealth called Internal Affairs

Sergeant Zachary Koenig to the stand to testify that an off-duty action report

was filed in response to the skirmish. See N.T., 2/22/22, at 23-27. Sergeant

Koenig also confirmed that, at the time of the incident, Appellee’s job status

was “[i]njured on duty[.]” Id. at 27. On cross-examination, Sergeant Koenig

read the summary of the incident as recounted in the off-duty action report:

On 8/19/20 at approximately 12:30 a.m. Detective Smith . . .
along with [Appellee], while off duty in the area of Knights and
Fairdale Road, heard a person screaming. They observed a male
looking into a vehicle and attempting the doors on both sides.
Officers had prior knowledge of auto thefts and theft from autos
in the immediate area.

They followed the male and attempted to identify
themselves, at which time the male ran and tripped. The male
was stopped at the rear of the store at Knights and Fairdale Road.

[Appellee and Detective Smith] called 911 and uniformed
officers arrived on location. The male was investigated for
ped[estrian] inves[tigation] at this time. The investigation
continues into the auto thefts and thefts from autos in the area.

-4-
J-S16036-23

Id. at 28. Sergeant Koenig also confirmed that McNally was not charged with

any crime and was not taken by police for medical treatment. See id. at 29-

30.

Following the Commonwealth’s case, Appellee’s counsel recalled McNally

and played a video, marked as Exhibit D-1, which purportedly showed a

person “trying car doors nine days before this incident.” See N.T., 2/22/22,

at 18-19, 35.5 Appellee’s counsel asked McNally if he “recognize[d him]self in

[the] video[,]” to which McNally replied, “That is not me. I have not been in

that neighborhood. I do not know where it is located. . . . That is not my

voice.” Id. at 35-36.

Following argument by counsel, the trial court discharged the matter for

lack of evidence. The court stated:

[E]ven if I couldn’t see that it was [McNally] in that video, what it
does show is that there is that type of criminal activity going on
in that neighborhood. So it certainly bolters the police officers’
mental state that they were knowledgeable about the fact that
there were car thefts in the area. And it was a legitimate reason
to inquire of the individual.

Now, when he fled, you know, police are going to follow
somebody when they flee. Just basic police actions. I don’t see
criminal culpability here at all. At best [what] you have is
somebody not following police directives because [Appellee and
co-defendant] were [off-duty] and they never should have reacted
to this. But I don’t find any criminal culpability whatsoever.

____________________________________________

5 Appellee’s counsel initially attempted to introduce the exhibit during cross-

examination of McNally. See N.T., 2/22/22, at 18-19. However, at that time,
the court concluded it was “irrelevant.” Id. at 19. As noted above, the court
permitted the video when counsel recalled McNally.

-5-
J-S16036-23

N.T., 2/22/22, at 45.

Less than a month later, the Commonwealth filed a Notice of Refiling of

Criminal Complaint, requesting that the charges be reinstated and a

preliminary hearing scheduled. See Commonwealth’s Notice of Refiling of

Criminal Complaint, 3/22/22. A joint refile hearing was conducted on July 26,

2022, before Philadelphia Court of Common Pleas Judge Crystal Bryant-

Powell.6

At that hearing, the Commonwealth did not present any new evidence.

Rather, it moved into evidence the notes of testimony from the February 22nd,

2022, preliminary hearing, as well as the exhibits introduced by the parties.

See N.T., 7/26/22, at 5-7. Following argument, the trial court determined

the Commonwealth did not meet its burden of proof and dismissed all charges

____________________________________________

6 Pursuant to Pa.R.Crim.P. 544, “[w]hen charges are dismissed [at] a
preliminary hearing, . . . the Commonwealth may reinstitute the charges by
approving, in writing, the re-filing of a complaint with the issuing authority
who dismissed . . . the charges.” Pa.R.Crim.P. 544(A). Subsection (B) allows
the Commonwealth to file a motion requesting “a different issuing authority
to conduct the preliminary hearing.” Pa.R.Crim.P. 544(B). Although it does
not appear the Commonwealth formally requested that a “different issuing
authority” conduct the refile hearing in the present case, that is what occurred.
See id. “Nevertheless, neither party has objected to the procedure.”
Commonwealth v. Sinkiewicz, 293 A.3d 681, 686 n.4 (Pa. Super. 2023).
Furthermore, we note that “this case retained its municipal court docket
number” despite the fact that the refile hearing was conducted in the Court of
Common Pleas. See Commonwealth v. Montgomery, 192 A.3d 1198, 1199
n.2 (Pa. Super. 2018).

-6-
J-S16036-23

against Appellee and co-defendant. See id. at 27. This timely Commonwealth

appeal follows.7

The Commonwealth presents one issue for our review:

Did the Commonwealth present a prima facie case for
charges of simple assault, conspiracy, and [REAP] when the victim
testified that [Appellee] and co[-]defendant baselessly accused
him of breaking into cars, chased after him, rammed him into a
wall, and held him down until officers arrived?

Commonwealth’s Brief at 8.

Preliminarily, we must consider whether we have jurisdiction over this

appeal. Because “jurisdiction is purely a question of law[, our] standard of

review is de novo, and the scope of review is plenary.” Commonwealth v.

Merced, 265 A.3d 786, 789 (Pa. Super. 2021) (citation omitted).

Generally, when, as here,

criminal charges are dismissed prior to trial, the Commonwealth
can simply refile the charges and, therefore, an appeal from such
an order is interlocutory. [U]nder Pennsylvania Rule of
Appellate Procedure 311(d), in criminal cases the Commonwealth
has a right to appeal an interlocutory order if the
Commonwealth certifies that the order will terminate or
substantially handicap the prosecution. . . .

Commonwealth v. Holston, 211 A.3d 1264, 1268 (Pa. Super. 2019) (en

banc) (citations omitted & emphases added). In the present case, the

Commonwealth did not certify in its notice of appeal that the order “will

____________________________________________

7 The Commonwealth complied with the trial court’s directive to file a Pa.R.A.P.

1925(b) concise statement of errors complained of on appeal.

-7-
J-S16036-23

terminate or substantially handicap the prosecution.” See Pa.R.Crim.P.

311(d); Commonwealth’s Notice of Appeal, 7/9/21.

This Court has determined, however, that an order dismissing charges

is final and appealable when “the defect which requires the dismissal of [the]

charges is uncurable[,]” such as when “the statute of limitations expired

before the trial court dismissed the charge at issue[;]” in that circumstance,

“the Commonwealth cannot refile the charges[.]” Commonwealth v. Ligon,

219 A.3d 1181, 1185 (Pa. Super. 2019) (en banc) (citation omitted). See

Pa.R.A.P. 341(a)-(b) (“[A]n appeal may be taken as of right from any final

order[,]” such as an order that “disposes of all claims and of all parties[.]”).

In the present case, the incident occurred, at the latest, on August 19, 2020,

and the two-year statute of limitations would have expired on August 19,

2022. See 42 Pa.C.S. § 5552(a) (“Except as otherwise provided . . . , a

prosecution for an offense must be commenced within two years after it is

committed.”). Therefore, the statute of limitations had not yet expired when

the common pleas court dismissed the charges on July 26, 2022.

Nevertheless, we conclude the order sub judice is a final order based on

the unique structure of the Philadelphia County court system, which includes

Philadelphia Municipal Court. The Philadelphia Municipal Court has original

jurisdiction over adult criminal offenses “for which no prison term may be

imposed or which are punishable by imprisonment for a term of not more than

five years[.]” 42 Pa.C.S. § 1123(a)(2). This includes the offenses charged in

the present matter ─ simple assault, conspiracy, and REAP ─ which are all

-8-
J-S16036-23

graded as second-degree misdemeanors. See 18 Pa.C.S. §§ 905(a), 2701(b),

2705; see also 18 Pa.C.S. § 1104(2) (maximum sentence for second-degree

misdemeanor is two years’ imprisonment). However, Pennsylvania Rule of

Criminal Procedure 1001 permits the Commonwealth to file a “written

certification to exercise [its] right to a jury trial in a Municipal Court case.”

Pa.R.Crim.P. 1001(D). When it does, the Rule requires the President Judge of

the Municipal Court to promptly “schedule a preliminary hearing.” Id.

Thereafter, “[w]hen [the] case is held for court the case shall remain in the

Common Pleas Court through final disposition.” Id. The Comment to the

Rule emphasizes that “[o]nce a case is bound over to Common Pleas Court,

the trial judge may not remand the case to the Municipal Court for any reason,

even if the right to jury trial is waived.” See Pa.R.Crim.P. 1001, Cmt.

In the present case, the Commonwealth exercised its right to a jury trial

by filing a written certification on April 5, 2021. See Commonwealth’s

Certification of [Its] Exercise of Right to a Jury Trial, 4/5/21. The Municipal

Court President Judge then directed that the matter “be promptly listed for a

preliminary hearing[.]” See Order, 5/3/21. As noted supra, Municipal Court

Judge Meehan conducted a preliminary hearing on February 22, 2022, and

discharged the matter for lack of evidence. See N.T., 2/22/22, at 45.

On March 22, 2022, the Commonwealth filed a notice of its intent to

refile the criminal complaint in the Court of Common Pleas. The matter

proceeded to a hearing before Common Pleas Court Judge Bryant-Powell, who

agreed that the Commonwealth did not establish a prima facie case for any of

-9-
J-S16036-23

the offenses and, again, dismissed the charges. See N.T., 7/26/22, at 27. At

that point, both a Municipal Court judge and a Common Pleas Court judge had

concluded the Commonwealth failed to meet its preliminary burden of proof

in order to establish a prima facie case. As the matter was removed to the

Common Pleas Court via the Commonwealth’s request for a jury trial, the

Commonwealth’s only option would have been to seek to refile the charges

before another Common Pleas Court judge. However, pursuant to the

“coordinate jurisdiction rule, . . . judges of coordinate jurisdiction should not

overrule each other’s decisions.” Commonwealth v. King, 836 A.2d 25, 29

(Pa. 2003) (citation omitted). While the courts of this Commonwealth have

permitted a departure from this rule in exceptional circumstances, none are

applicable here. See Commonwealth v. Starr, 664 A.2d 1326, 1332 (Pa.

1995) (permitting departure from coordinate jurisdiction rule in “exceptional

circumstances such as where there has been an intervening change in the

controlling law, a substantial change in the facts or evidence giving rise to the

dispute in the matter, or where the prior holding was clearly erroneous and

would create a manifest injustice if followed”).

Accordingly, we conclude that, based on the jurisdictional constraints of

the Philadelphia County court system, the order at issue was final and

appealable. Thus, the Commonwealth was not required to include a Pa.R.A.P.

311(d) certification in its notice of appeal.

- 10 -
J-S16036-23

Turning to the Commonwealth’s substantive claim, we review an order

dismissing criminal charges at a preliminary hearing for lack of evidence under

the following standards:

[A] prima facie case exists when the Commonwealth
produces evidence of each of the material elements of the crime
charged and establishes probable cause to warrant the belief that
the accused committed the offense. Furthermore, the evidence
need only be such that, if presented at trial and accepted as true,
the judge would be warranted in permitting the case to be decided
by the jury. A judge at a preliminary hearing is not required, nor
is he authorized to determine the guilt or innocence of an accused;
his sole function is to determine whether probable cause exists to
require an accused to stand trial on the charges contained in the
complaint. . . . The weight and credibility of the evidence are not
factors at the preliminary hearing stage, and the Commonwealth
need only demonstrate sufficient probable cause to believe the
person charged has committed the offense.

[I]nferences reasonably drawn from the evidence of record
which would support a verdict of guilty are to be given effect, and
the evidence must be read in the light most favorable to the
Commonwealth’s case. The use of inferences is a process of
reasoning by which a fact or proposition sought to be established
is deduced as the logical consequence from the existence of other
facts that have been established. The “more-likely-than-not” test,
must be applied to assess the reasonableness of inferences relied
upon in establishing a prima facie case of criminal culpability. The
more-likely-than-not test is the minimum standard — anything
less rises no higher than suspicion or conjecture.

Commonwealth v. Perez, 249 A.3d 1092, 1102-03 (Pa. 2021) (citations &

some quotation marks omitted).

As noted, supra, the Commonwealth seeks to prosecute Appellee on

charges of simple assault, conspiracy, and REAP. A person is guilty of simple

assault if he “attempts to cause or intentionally, knowingly or recklessly

causes bodily injury to another[.]” 18 Pa.C.S. § 2701(a)(1). Bodily injury is

- 11 -
J-S16036-23

defined as “[i]mpairment of [a] physical condition or substantial pain.” 18

Pa.C.S. § 2301. Even if the victim does not sustain bodily injury, a person

may be found guilty of simple assault if he acted with “a specific intent to

cause bodily injury[.]” Commonwealth v. Richardson, 636 A.2d 1195,

1196 (Pa. Super. 1994) (citation omitted). A person is guilty of criminal

conspiracy if he: “(1) entered into an agreement to commit . . . an unlawful

act with another person . . . , (2) with a shared criminal intent and, (3) an

overt act was done in furtherance of the conspiracy.” Commonwealth v.

Fisher, 80 A.3d 1186, 1190–91 (Pa. 2013) (citation omitted). See 18 Pa.C.S.

§ 903(a)(1). Lastly, a person is guilty of REAP “if he recklessly engages in

conduct which places or may place another person in danger of death or

serious bodily injury.” 18 Pa.C.S. § 2705. See 18 Pa.C.S. § 2301 (defining

“serious bodily injury” as “[b]odily injury which creates a substantial risk of

death or which causes serious, permanent disfigurement, or protracted loss

or impairment of the function of any bodily member or organ”).

On appeal, the Commonwealth insists that it presented sufficient

evidence to establish a prima facie case for each offense charged. See

Commonwealth’s Brief at 12. First, with regard to simple assault, the

Commonwealth claims McNally’s testimony that Appellee and his co-defendant

“manhandled [him] and threw [him] to the wall” ─ which resulted in bleeding

on the back of his head, a black eye, and bruising ─ was sufficient to establish

the offense. See id. at 13 (record citation omitted). Although the trial court

apparently determined Appellee’s actions constituted “a lawful use of force”

- 12 -
J-S16036-23

based on the fact that “he allegedly saw [McNally] looking into cars and pulling

on their doors[,]” the Commonwealth maintains this was an improper

“credibility finding” that should not have been considered at the preliminary

hearing. Id. at 14 (record citation omitted). Rather, it asserts “[t]he question

of whether or not [Appellee] is ultimately able to persuade a fact finder at trial

that he was legitimately using reasonable force must await . . . trial.” Id.

Next, with regard to the conspiracy charge, the Commonwealth argues

McNally’s testimony that Appellee and his co-defendant together confronted

him, chased him, “rammed him into a wall and held him down until uniformed

officers arrived[,]” was sufficient to establish a prima facie case of conspiracy.

Commonwealth’s Brief at 15. It claims that an agreement between the co-

defendants to assault McNally “may be inferred from the relation and conduct

of the parties,” and need not have been “expressly communicated[.]” Id.

Lastly, the Commonwealth contends it presented sufficient evidence to

support a prima facie case of REAP because “the two men chased McNally and

together used that momentum to ram his head into a wall.” Commonwealth’s

Brief at 16 (record citation omitted). It insists that this act “demonstrated a

reckless disregard for a substantial and unjustifiable risk of seriously injuring

McNally[,]” and that repeated blows to the head ─ a vital part of the body ─

provide a “common-sense inference” of an intent to inflict serious bodily

injury. Id.

Upon our review of the record, the parties’ briefs, and the relevant

statutory and case law, we conclude the trial court applied the proper standard

- 13 -
J-S16036-23

of review and did not err in finding the Commonwealth failed to present a

prima facie case to support the charges filed against Appellee.

Considering first the offense of simple assault, we conclude the

Commonwealth failed to establish Appellee acted with the requisite mens rea

to support the charge. Assuming, arguendo, that McNally suffered bodily

injury,8 the Commonwealth was still required to demonstrate that Appellee

acted intentionally, knowingly, or recklessly to cause that bodily injury. See

____________________________________________

8 This Court has held that a victim sustained bodily injury in the following
circumstances: (1) the defendant threw the victim against a wall and punched
the victim in the mouth, which cause the victim’s head to hit the wall, resulting
in a “busted lip” and pain; (2) the defendant struck the victim with a closed
fist in the jaw resulting in “slight swelling and pain[;]” and (3) the defendant
grabbed the victim’s arm in an aggressive fashion and pushed the victim
against a wall, resulting in bruises that lasted several days. See
Commonwealth v. Wroten, 257 A.3d 734, 744 (Pa. Super. 2021);
Commonwealth v. Marti, 779 A.2d 1177, 1181 (Pa. Super. 2001); In re
M.E., 758 A.2d 1249, 1252 (Pa. Super. 2000).

Here, viewing the evidence and all reasonable inferences in the light
most favorable to the Commonwealth, we conclude that McNally’s testimony
─ that “the wall slammed the side of [his] head[,]” resulting in bleeding, a
black eye and bruises ─ if credited by the fact finder, was sufficient to establish
he suffered “bodily injury,” and in particular “substantial pain,” as a result of
the incident. See Perez, 249 A.3d at 1102-03; 18 Pa.C.S. § 2301; N.T.,
2/22/22, at 11.

Moreover, we note that if we concluded the evidence was insufficient
to establish bodily injury, the Commonwealth would be required to establish
Appellee attempted to cause bodily injury. See 18 Pa.C.S. § 2701(a)(1). In
order to demonstrate an attempted simple assault, the Commonwealth must
show Appellee acted with “specific intent to cause [McNally] bodily injury[.]”
See Richardson, 636 A.2d at 1196 (citation omitted). As we discuss infra,
the evidence does not support an inference that Appellee acted with the
requisite specific intent.

- 14 -
J-S16036-23

18 Pa.C.S. § 2701(a)(1). A person acts “intentionally” when “it is his

conscious object . . . to cause such a result[.]” 18 Pa.C.S. § 302(b)(1)(i). A

person acts “knowingly” when “he is aware that it is practically certain that

his conduct will cause such a result.” Id. at § 302(b)(2)(ii). Finally,

[a] person acts recklessly . . . when he consciously disregards a
substantial and unjustifiable risk that the material element . . .
will result from his conduct. The risk must be of such a nature
and degree that, considering the nature and intent of the actor’s
conduct and the circumstances known to him, its disregard
involves a gross deviation from the standard of conduct that a
reasonable person would observe in the actor’s situation.

18 Pa.C.S. § 302(b)(3).

Here, the Commonwealth insists the fact that McNally testified Appellee

and co-defendant “manhandled [him] and threw [him] to the wall” was

sufficient to establish a prima facie case of simple assault. See

Commonwealth’s Brief at 13 (record citation omitted). However, McNally’s

testimony does not support a reasonable inference that Appellee intended to

cause him to suffer bodily injury, or that he acted knowingly or recklessly to

cause that result.

Although McNally claimed he was not looking in cars on the night in

question, he acknowledged that Appellee stopped to question him because

that is what Appellee believed he was doing. McNally admitted that after

Appellee and co-defendant approached him, they “accused [him] of breaking

into cars[,]” and “said they [had him] on video[.]” N.T., 2/22/22, at 9-10.

See also id. at 16 (“They told me, Are you the one breaking into cars? And

I was like, What are you talking about?”). He also testified that Appellee and

- 15 -
J-S16036-23

co-defendant “claimed to be part of Town Watch[.]” Id. at 21. However,

instead of engaging in further conversation, McNally ran. See id. at 10, 16.

He stated that when Appellee and co-defendant caught up to him, they “threw”

him against a wall or a pillar and held him on the ground until uniformed

officers arrived. See id. at 12, 20-21. Importantly, he conceded that they

did so “[t]o stop [him] from running” because they “claim[ed he was] looking

into cars and trying car handles.” Id. at 20.

Thus, viewing the evidence in the light most favorable to the

Commonwealth, we conclude McNally’s testimony does not support a

reasonable inference that Appellee “more likely than not” intended to cause

him bodily harm. See Perez, 249 A.3d at 1103. Rather, McNally’s own

testimony confirms Appellee’s intent was to stop him from fleeing and confront

him about the recent car break-ins, regardless of whether Appellee’s

suspicions were justified. Neither Appellee’s actions, nor his statements,

compel a different result. See Commonwealth v. Predmore, 199 A.3d 925,

932-33 (Pa. Super. 2018) (en banc) (Commonwealth did not establish prima

facie case of attempted murder when defendant shot victim in the calves

following an argument; no intent to kill could be inferred from shooting in

lower leg and Commonwealth presented no evidence that defendant “verbally

indicated, directly or indirectly, his intent to kill” victim). Furthermore, a

reasonable inference that Appellee did not intend to injure McNally is

supported by the summary of the incident recorded in the Internal Affairs’ off-

duty action report, as well as the fact that Appellee and co-defendant

- 16 -
J-S16036-23

requested dispatch to send uniformed officers to the scene. See N.T.,

2/22/22, at 28 (off-duty report indicated officers observed male looking in

vehicle, had knowledge to auto thefts in immediate area, and followed male

while attempting to identify themselves; “[o]fficers called 911” after stopping

male).9

We further conclude that the Commonwealth also failed to establish

Appellee acted knowingly or recklessly, i.e., that he took actions which he was

“practically certain” would result in McNally suffering bodily injury or that he

“consciously disregard[ed] a substantial and unjustifiable risk” that such injury

would result from his conduct. See 18 Pa.C.S. § 302(b)(2)(ii), (3). Indeed,

McNally’s testimony supports a reasonable inference that Appellee knocked

him into a wall to stop him from fleeing; there was no testimony that Appellee

or co-defendant hit, kicked, or otherwise attempted to harm McNally after he

was subdued. Nor does the Commonwealth present such an argument in its

brief.10 Rather, the Commonwealth focuses on the trial court’s purported
____________________________________________

9 We emphasize that in making this determination, we do not consider
whether Appellee’s actions would constitute a “lawful use of force” by a police
officer. See Commonwealth’s Brief at 14. We agree with the Commonwealth
that our consideration of a potential defense would require a credibility
determination, which is not permitted at the preliminary hearing stage. See
Perez, 249 A.3d at 1102.

10In its reply brief, the Commonwealth argues, for the first time, that
Appellee’s purported subjective intent to detain McNally “is irrelevant to
whether he also intended, knew, or was reckless to the fact that throwing
someone head-first into a wall would cause bodily injury.” See
Commonwealth’s Reply Brief at 9-10 n.1. However, the Commonwealth’s
(Footnote Continued Next Page)

- 17 -
J-S16036-23

determination that Appellee’s actions constituted a “lawful use of force.” See

Commonwealth’s Brief at 14. As explained supra, we need not consider this

defense to affirm the court’s ruling.

With regard to conspiracy, the Commonwealth failed to present any

evidence, direct or circumstantial, to support a reasonable inference that

Appellee and co-defendant acted with a “shared criminal intent” to assault

McNally. See Fisher, 80 A.3d at 1190. As explained above, the only

reasonable inference from the Commonwealth’s evidence was that Appellee

and co-defendant intended to stop McNally from fleeing the area and question

him about the recent car thefts.

Lastly, we conclude the Commonwealth failed to establish a prima facie

case of REAP. There was simply no evidence presented to support a

reasonable inference that Appellee engaged in conduct that placed McNally “in

danger of death or serious bodily injury.” See 18 Pa.C.S. § 2705. Although

the Commonwealth emphasizes that repeated blows to a person’s head can

support an inference that the actor “inten[ded] to inflict serious bodily

injury[,]” that was not what occurred in the present case. See

Commonwealth’s Brief at 16. Nor, as the Commonwealth suggests, did

McNally state that Appellee and co-defendant “used [their] momentum” from
____________________________________________

characterization of Appellee’s actions is belied by the record. The only
reasonable inference that may be drawn from McNally’s testimony is that
Appellee pushed him or threw him into a wall, where he hit his head. See
N.T., 2/22/22, at 11-12, 20. He never testified that they “threw him head-
first into a wall[.]” See Commonwealth’s Reply Brief at 9.

- 18 -
J-S16036-23

the chase to “ram his head into a wall.” Id. Instead, McNally testified that

the men “knocked” or “threw” him into the wall, where he “slammed the side

of [his] head.” N.T., 2/22/22, at 11-12. There is simply no testimony to

support an inference that Appellee repeatedly hit McNally in the head, or

purposely smashed McNally’s head into the wall.

Accordingly, we agree with the trial court’s determination that the

Commonwealth failed to present sufficient evidence to support a prima facie

case of simple assault, conspiracy, and/or REAP against Appellee. Therefore,

we affirm the order dismissing the charges.

Order affirmed.

Date: October 11, 2023

- 19 -