J-E01001-19

                                   2019 PA Super 293


    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                       Appellant               :
                                               :
                                               :
                v.                             :
                                               :
                                               :
    CARLOS PEREZ                               :   No. 1392 EDA 2017

                      Appeal from the Order April 5, 2017
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): MC-51-CR-0005268-2017



BEFORE: PANELLA, P.J., BENDER, P.J.E., GANTMAN, P.J.E., LAZARUS, J.,
        OLSON, J., KUNSELMAN, J., NICHOLS, J., MURRAY, J., and
        McLAUGHLIN, J.

OPINION BY LAZARUS, J.:                            FILED SEPTEMBER 30, 2019

        The Commonwealth of Pennsylvania appeals from the order, entered in

the Court of Common Pleas of Philadelphia County, dismissing charges of first-

degree murder1 and possession of an instrument of crime (“PIC”)2 against

____________________________________________


1   18 Pa.C.S.A. § 2502(a).

2 The Commonwealth, in its Pa.R.A.P. 1925(b) concise statement of errors
complained of on appeal, raised the issue, whether “the lower court erred in
holding that evidence indicating the defendant fatally stabbed the victim was
insufficient for a prima facie case of murder and related offenses.” Pa.R.A.P.
1925(b) Statement, 4/25/17, at 1. The Commonwealth, however, failed to
include any argument relevant to the dismissal of Perez’s PIC charge in its
brief to a panel of this Court or in its substituted brief before this Court en
banc. Accordingly, we consider any claim related to Perez’s PIC charge
abandoned on appeal. See Commonwealth v. Rodgers, 604 A.2d 1228,
1239 (Pa. Super. 1992) (“We must deem an issue abandoned where it has
been identified on appeal but not properly developed in the appellant’s brief.”).
J-E01001-19


Carlos Perez after a second preliminary hearing.      After careful review, we

affirm.

      At approximately 1:00 a.m. on August 21, 2016, Andrew Hazelton and

Hector Martinez went to Bleu Martini, a bar in Philadelphia.        N.T. First

Preliminary Hearing, 3/22/17, at 4–5. They made their way to “a small[,]

confined area” where the two men split from one another.          Id. at 5–8.

Martinez talked to a friend, while Hazelton danced with a woman “five to eight”

feet from Martinez.     Id. at 5–7. Perez, already at Bleu Martini, was seated

at a table approximately four feet from where Hazelton was dancing. Id. at

8. At approximately 1:50 a.m, Marquis McNair, a bouncer at Bleu Martini,

spotted Hazelton and Perez pushing one another. N.T. Second Preliminary

Hearing, 4/5/17, at 22–27. The two men were shoving one another in the

center of two groups, comprised of between five and fifteen people each, when

McNair stepped in and separated them.        Id. at 27, 54–55.   Hazelton told

McNair that he and Perez knew one another and that everything was “cool.”

Id. at 59. McNair did not see any weapons or broken bottles following this

initial altercation.   Id. at 61.   McNair and a second bouncer continued to

monitor the area, standing approximately ten to fifteen feet from Hazelton

and Perez. Id. at 32.

      A few minutes later, Hazelton and Perez began shoving one another

again. Id. at 34. McNair saw Perez and Hazelton pushing one another, and

witnessed Perez make an “arm movement” towards Hazelton’s neck, but he


                                       -2-
J-E01001-19


neither saw Perez stab Hazelton, nor observed a weapon of any kind in Perez’s

hands. Id. at 62–64, 76. However, when McNair and his colleague stepped

in to break up the second shoving match, he heard a woman exclaim, “they

cut him[.]” Id. at 35, 48. McNair then noticed Hazelton holding his neck. Id.

at 66, 77–78. When Hazelton removed his hand from his neck, blood began

“gushing out[.]”   Id. at 35.

      Martinez only noticed something amiss when the two bouncers moved

to separate Hazelton and Perez. N.T. First Preliminary Hearing, 3/22/17, at

9, 33–34. When Martinez saw Hazelton emerge from the crowd holding his

neck, he followed Hazelton outside. Id. Hazelton tried to speak, but was

unable to do so, due to the severity of his wound. Id. at 10. Martinez applied

pressure to Hazelton’s neck in an attempt to stanch the bleeding. Id. at 34–

35.   Shortly thereafter, Martinez saw Perez exit Bleu Martini.    Id. at 35.

Martinez, who assumed Perez played a role in Hazelton’s injury because of the

blood on Perez’s shirt, punched Perez in the face. Id. at 11, 35. Perez went

back into Bleu Martini. Id. at 11.

      McNair began clearing patrons out of the club shortly after separating

Perez and Hazelton because it was nearing Bleu Martini’s 2:00 a.m. closing

time. N.T. Second Preliminary Hearing, 4/5/17, at 36. He encountered Perez

walking around the club in a tank top, and asked Perez why he was not

wearing a shirt, as doing so violated Bleu Martini’s dress code. Id. at 36–37.

Perez told McNair he took his shirt off and threw it in the bathroom trashcan


                                     -3-
J-E01001-19


after it got covered with blood. Id. at 39–40. McNair then escorted Perez to

the bathroom to retrieve the shirt. Id. at 39–40. Perez stayed at the bar

under the supervision of Bleu Martini security, not in connection with the

killing, but because of the $600 he owed on his bar tab. Id. at 92, 100.

     At approximately 2:00 a.m., a pedestrian on Second Street alerted

Philadelphia Police Officer Charles Stone to the stabbing. Id. at 85. Upon

entering Bleu Martini, the staff directed Officer Stone towards Perez, who was

seated alone in a booth. Id. at 86–88. Perez initially denied any involvement

in the fight. Id. at 90–92. When Officer Stone asked why he was not wearing

a shirt, Perez retrieved his bloody shirt from under the booth. Id. When

Officer Stone asked how he got blood on his shirt, Perez said he got hit. Id.

at 92. Officer Stone consulted with detectives, who ordered Perez be brought

to the police station. Id. The police were unable to find the weapon used to

cut Hazelton’s throat. Id. at 103.

     Hazelton died at the hospital later that day.     N.T. First Preliminary

Hearing, 3/22/17, at 37. The medical examiner’s office determined Hazelton’s

death resulted from the stab wound he sustained to his neck, which severed

his jugular vein and trachea. Id. at 37. On February 23, 2017, police arrested

Perez in connection with Hazelton’s death, and on February 24, 2017, Perez

was arraigned on charges of first-degree murder and PIC.

     On March 22, 2017, the Commonwealth presented its case to

Philadelphia Municipal Court Judge Thomas Gehret. In addition to Martinez’s


                                     -4-
J-E01001-19


testimony, the Commonwealth moved the following exhibits into evidence:

Martinez’s August 21, 2016 statement to police (C-1); Martinez’s September

29, 2016 statement to police (C-2); a photo array shown to Martinez during

his second statement to police (C-3); the medical examiner’s report stating

Hazelton’s cause of death as a stab wound sustained to neck (C-4); a trace

laboratory report of Perez’s shirt (C-5); and a DNA laboratory report indicating

the blood found on Perez’s shirt belonged to Hazelton (C-6). At the conclusion

of the hearing, Judge Gehret dismissed Perez’s charges for lack of evidence.

The Commonwealth refiled charges later that day.

      Perez was subsequently brought before the Court of Common Pleas, the

Honorable Kathryn Streeter Lewis presiding, where, in addition to McNair’s

and Officer Stone’s testimony, the Commonwealth introduced the following

exhibits into evidence:   a picture of Bleu Martini’s interior (C-1); McNair’s

statement to police from February 8, 2017 (C-2); pictures of Perez’s bloody

shirt (C-3); and the statement of Officer Stone from August 22, 2017 (C-4).

Judge Lewis dismissed the charges against Perez on the grounds that “the

Commonwealth was unable to prove at a prima facie level that it was [Perez]

who stabbed and killed [Hazelton].” Pa.R.A.P. 1925(a) Opinion, 7/28/17, at

9.

      The Commonwealth timely appealed and a divided three-judge panel of

this Court quashed its appeal as interlocutory.       On June 18, 2018, the

Commonwealth filed a petition for reargument en banc. On August 8, 2018,


                                     -5-
J-E01001-19


we withdrew our previous panel decision and granted the Commonwealth’s

petition.

       The Commonwealth raises the following questions for our review:

       1) Whether the Commonwealth’s appeal is from an interlocutory
          order or a final order, after the Philadelphia trial court twice
          concluded that the Commonwealth failed to establish a prima
          facie case of the charges against [Perez] and dismissed the
          charges.

       2) Properly viewed in the light most favorable to the
          Commonwealth, did the evidence and all reasonable inferences
          therefrom establish a prima facie case of murder and related
          offenses, where [Perez] provoked two altercations with the
          victim moments before he was fatally stabbed in the neck, and
          then tried to flee the scene, conceal evidence, and lie to police
          about his involvement?

Brief of Appellant, at 4.

       In its first argument, the Commonwealth asserts that Philadelphia Local

Rule of Criminal Procedure 520(H)3 renders Judge Lewis’ order dismissing

charges against Perez final, rather than interlocutory.

       As a general rule, subject to certain exceptions not presently at issue,4

this Court’s jurisdiction is limited to appeals from final orders.            See


____________________________________________


3 Philadelphia Criminal Rule 500 was renumbered Rule 520 effective July 21,
2014. See Phil.Crim.R. 520(H).
4 The Commonwealth seeks to establish jurisdiction under Pa.R.A.P. 341,

governing final orders, not Pa.R.A.P. 311(d), which sets forth the right to an
interlocutory appeal where the Commonwealth certifies in its notice of appeal
that an order terminates or substantially handicaps the prosecution. See Brief
of Appellant, at 1; see also Commonwealth v. Malinowski, 671 A.2d 674,
678 (Pa. Super. 1996) (finding Commonwealth’s failure to certify ruling
terminated or substantially handicapped prosecution rendered Superior Court
without jurisdiction to hear otherwise valid interlocutory appeal as of right).

                                           -6-
J-E01001-19


Commonwealth v. Scarborough, 64 A.3d 602, 607 (Pa. 2013) (“As a

general rule . . . appellate courts only have jurisdiction over appeals taken

from a final order.”). Our courts have long held “[a] finding by a committing

magistrate that the Commonwealth has failed to establish a prima facie case

is not a final determination, such as an acquittal, and only entitles the accused

to his liberty for the      present, leaving him subject to re[-]arrest.”

Commonwealth v. Hetherington, 331 A.3d 205, 208 (Pa. 1975); cf.

Commonwealth v. Thorpe, 701 A.3d 488, 490 (Pa. 1997) (allowing

Commonwealth’s appeal after third preliminary hearing, as subsequent re-

arrest would be prohibited by due process).

      Ordinarily, following the failure to present a prima facie case, “if the

[C]ommonwealth deems itself aggrieved by [the magistrate’s] decision[,] it

may bring the matter again before any other officer empowered to hold

preliminary hearings.”    Hetherington, supra at 208 (emphasis added).

However, our Supreme Court found the Hetherington logic inapplicable to

the dismissal of homicide charges in Philadelphia County, owing to

Philadelphia Local Criminal Rules 520(H) and 605. See Commonwealth v.

Prado, 393 A.2d 8, 9–10 (Pa. 1978) (“As a result [of Rules 520(H) and 605]

the Hetherington approach of seeking a review by another judicial officer is

not available in Philadelphia.”) (quotation omitted).

      Rule 520(H) reads, in relevant part, as follows:

      520(H) Appeal by Way of Re-Arrest.


                                      -7-
J-E01001-19


       When a re-arrest is taken in the nature of an appeal by the
       Commonwealth from an earlier dismissal, the Judge assigned to
       the Common Pleas Court Motion Court shall hold the Preliminary
       Arraignment. The Preliminary Hearing shall likewise be scheduled
       in the Common Pleas Court Motions Court, within three to ten days
       after preliminary arraignment.

Phil.Crim.R. 520(H).

       Rule 605 provides, in relevant part, as follows:

       Rule 605 Motions Court/Criminal Calendar Program and
       Homicide Cases.

       All Pretrial Motions Applicable to cases in the Criminal Calendar
       Program or Homicide Program will be scheduled by the applicable
       Calendar Judge and heard by the Motions Court Judge assigned to
       that program.5

Phil.Crim.R. 605.

       “Under Philadelphia Criminal Rules [520](H) and 605, therefore, only

the assigned Motions Court Judge may review a request for re[-]arrest in a

homicide case.” Prado, supra at 10. Orders dismissing homicide charges

following re-arrest are, therefore, deemed final in the context of Rules 520(H)

and 605, as the “prosecution is effectively barred from re[-]arresting [an

appellant] because of the provisions of the Philadelphia Criminal Rules that

only the assigned Motions Court Judge may review such a request.” Prado,

____________________________________________


5 When evaluated in Prado, Rule 605 featured slightly different wording,
which stated, in relevant part, “the Felony Jury or Homicide Program[;]” the
current iteration states, “Criminal Calendar Program or Homicide Program.”
Prado, supra at 10; and Phil.Crim.R. 605. All other relevant text remains
the same. Id.




                                           -8-
J-E01001-19


supra at 10; see also Commonwealth v. Weigle, 997 A.2d 306, 308 n.5

(Pa. 2000) (“under Philadelphia County Local Criminal Rule [520](H),

Common Pleas Motions Court judges’ orders discharging an accused or

denying a re[-]arrest petition constitute final orders subject to appellate

review.”).6

       The instant order, issued by the Philadelphia Court of Common Pleas

Motions Court, dismissed homicide charges against Perez following his re-

arrest and a second preliminary hearing. N.T. Second Preliminary Hearing,

4/5/17, at 115. In light of our Supreme Court’s holding in Prado, establishing

the preclusive effect of Rules 520(H) and 605 on the Commonwealth’s ability

to seek review by another judge following the dismissal of homicide charges




____________________________________________


6 Though the Weigle Court’s pronouncement concerning the effect of Rule
520(H) on the finality of an order is instructive, it is also dictum. See in re
L.J. 79 A.3d 1073, 1081 (Pa. 2013) (noting where Pennsylvania Supreme
Court “simply volunteered the discussion [and] the issue was not litigated by
the parties . . . the statement was non-binding dicta and stare decisis [did]
not apply.”); see also Weigle, supra at 308 (offering footnote 5 to explain
statement that “the Commonwealth could have appealed the dismissal of the
robbery charges, but it did not do so.”) (emphasis added). Prado is,
therefore, the only binding case law concerning the relationship between Rule
520(H) and finality. Prado, supra at 10. We note, though Prado proceeded
from a distinct procedural posture, wherein the Commonwealth appealed after
the court dismissed a petition for re-arrest following a second preliminary
hearing, its holding controls the instant case; the Prado court found “the
court’s orders discharging the appellee and refusing the prosecution’s petition
for re[-]arrest are final orders subject to appellate review.” Id. (emphasis
added). Our Supreme Court’s use of the plural indicates, in the context of
Rule 520(H), both orders dismissing charges and those denying re-arrest are
final. Id.

                                           -9-
J-E01001-19


from Motions Court, we find Judge Lewis’ dismissal of charges against Perez

constitutes a final order subject to review by this Court. Prado, supra at 10.

       Finding that this Court has jurisdiction over the instant matter, we

proceed to consider whether the evidence presented at Perez’s hearing was

sufficient to establish a prima facie case of first-degree murder.      Brief of

Appellant, at 1.

       The evidentiary sufficiency of the Commonwealth’s case, or lack thereof,

is a question of law; as such, our scope of review is plenary. Commonwealth

v. Karetny, 880 A.2d 505, 528 (Pa. 2005). We have previously described

the well-settled principles governing preliminary hearings, as well as the

Commonwealth’s concomitant burden, as follows:

       The purpose of a preliminary hearing is to determine whether the
       Commonwealth has made out a prima facie case for the offenses
       charged. 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 and that the accused is
       probably the perpetrator of that crime.[7]
____________________________________________


7  Perez contends he—not the Commonwealth—is owed all reasonable
inferences. See Brief of Appellee, at 10–11 (“[T]he Commonwealth is not . .
. entitled to have the facts viewed by this Court in a light most favorable to
them [sic] . . . if any reasonable inferences are due, they should be made in
a light most favorable to Appellee and not the Commonwealth.”) (emphasis in
original). In doing so, Perez plainly misunderstands both the definition and
the purpose of a preliminary hearing—a hearing designed to prevent “a person
from being imprisoned . . . for a crime with which there is no evidence of his
connection”—which is “not a trial in any sense of the word.” Commonwealth
ex rel. Maisenhelder v. Rundle, 198 A.2d 565, 567 (Pa. 1964); see
Commonwealth v. Santos, 876 A.2d 360, 363 (Pa. 2005) (“[T]he evidence
must be considered in the light most favorable to the Commonwealth so that
inferences that would support a guilty verdict are given effect.”) (emphasis



                                          - 10 -
J-E01001-19



                                           ...

       The Commonwealth establishes a prima facie case when it
       produces evidence[] that, if accepted as true, would warrant the
       trial judge to allow the case to go to a jury. The Commonwealth
       need not prove the elements of the crime beyond a reasonable
       doubt; rather, the prima facie standard requires evidence of the
       existence of each and every element of the crime charged.
       Moreover, the weight and credibility of the evidence are not
       factors at this stage, and the Commonwealth need only
       demonstrate sufficient probable cause to believe the person
       charged has committed the offense.

Commonwealth v. Ouch, 199 A.3d 918, 923 (Pa. Super. 2018) (emphasis

added) (internal citations and quotations omitted).

       At the prima facie level, “[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.” Id. (emphasis added). Though a judge presiding

over a preliminary hearing necessarily views the evidence through a sharply

different lens than her counterpart at trial, the standard by which we assess

the permissibility of evidentiary inferences remains consistent at both stages:

“Evidentiary inferences, like criminal presumptions, are constitutionally infirm

unless the inferred fact is more likely than not to flow from the proved fact on



____________________________________________


added). It is not for this Court to revisit longstanding pillars of criminal
jurisprudence. See Commonwealth v. Montini, 712 A.2d 761, 769 (Pa.
Super. 1998) (Johnson, J. Concurring) (“The Superior Court is an error[-
]correcting court and we are obliged to apply the decisional law as determined
by the Supreme Court of Pennsylvania.”).

                                          - 11 -
J-E01001-19


which it is made to depend.” See Commonwealth v. McBride, 595 A.2d

589, 591 (Pa. 1991) (finding quantum of evidence sufficient to require

defendant stand trial for criminal trespass).

      In the instant case, it is therefore the Commonwealth’s burden to

establish support—either by direct evidence or inferences reasonably drawn

therefrom—for the existence of each element of first-degree murder, as well

as probable cause to believe Perez committed the offense. Ouch, supra at

923; McBride, supra at 591.

      Murder is defined, in relevant part, as follows:

      § 2502. Murder

      (a) Murder of the first degree.--A criminal homicide constitutes
      murder of the first degree when it is committed by an intentional
      killing.
                                   ....

      “Intentional killing.” Killing by means of poison, or by lying in
      wait, or by any other kind of willful, deliberate and premeditated
      killing.

18 Pa.C.S.A. § 2502(a), (d)

      “It is well-established that to convict a defendant of first-degree murder,

the Commonwealth must show that the defendant killed another person with

the   specific   intent   to   kill   that   person   and   malice   aforethought.”

Commonwealth v. Santos, 876 A.2d 360, 363 (Pa. 2005). “Specific intent

to kill can be established through circumstantial evidence, such as the use of

a deadly weapon on a vital part of the victim’s body.” Commonwealth v.

Mattison, 82 A.3d 386, 392 (Pa. 2013).

                                         - 12 -
J-E01001-19


      Neither the parties involved nor the court below dispute that, for

purposes of a preliminary hearing, the circumstances surrounding Hazelton’s

death make out the elements of first-degree murder. See Brief of Appellant,

at 19 (“The preliminary hearing court concluded that the Commonwealth

satisfied the [elements of first-degree murder in] its prima facie case because

the evidence showed that the victim was unlawfully killed by a stab wound to

the neck.”); see also Brief of Appellee, at 11 (“[T]he parties in the case at

bar are in agreement that a crime did occur[.]”). The sole issue before this

Court, therefore, is whether the evidence, “read in the light most favorable to

the Commonwealth,” shows “that the accused is probably the perpetrator of

[the] crime.” Ouch, supra 923.

      The Commonwealth argues the following evidence provides probable

cause showing Perez killed Hazelton: (1) Perez and Hazelton engaged in two

shoving matches before Hazelton received his fatal wound; (2) Perez moved

his arm towards Hazelton’s neck before Hazelton was stabbed; (3) Perez

attempted to leave Bleu Martini after the stabbing; (4) Perez twice tried to

discard his blood-stained shirt; and (5) Perez did not tell police he had

Hazelton’s blood on his shirt. See Brief of Appellant, at 17, 19–24.

      From this evidence, the Commonwealth posits two key inferences from

which it asks this Court to hold Perez for trial.   Id. at 19–21.      First, the

Commonwealth asks us to infer the stabbing “could only have resulted from

[Perez’s] use of a deadly weapon” because of the temporal proximity between


                                    - 13 -
J-E01001-19


Perez’s arm movement and Hazelton receiving his neck wound. Id. at 19.

Secondly, the Commonwealth claims Perez’s “subsequent guilty behavior and

efforts to conceal his role in the murder . . . supported the reasonable

inference of his culpability.” Id. at 20.

       We find neither of the Commonwealth’s proposed inferences supported

by evidence of record.        See Prado, supra at 10–11 (finding inference of

defendant’s identity as killer unavailable to Commonwealth in absence of

evidence establishing defendant’s actions at time of killing, motive to kill, or

murder weapon used); and compare Commonwealth v. Styler, 600 A.2d

1300, 1302 (Pa. Super. 1991) (affording inference of intent to kill from

statement indicating use of weapon was deliberate response to victim’s

conduct) with Commonwealth v. Austin, 575 A.2d 141, 145 (Pa. Super.

1990) (denying inference of intent to kill based on evidence of record stating

killer swung knife at victim rather than deliberately plunging it into victim).

       The Commonwealth’s first inference, that only Perez was capable of

stabbing Hazelton because of the proximity in time between the second

shoving match and the stabbing, rests entirely on McNair’s testimony.8 Brief


____________________________________________


8  The Commonwealth argues both Martinez and McNair testified to Perez
engaging in “two separate physical altercations with the victim[.]” Brief of
Appellant, at 19. We note Martinez’ testimony indicates he did not see the
first altercation or the stabbing. See N.T. First Preliminary Hearing, 3/22/17,
at 9 (mentioning only second altercation); see also id. at 27 (Q. [Y]ou didn’t
see anyone get stabbed, did you? A. No, I did not. Q. You don’t know if it
was a male or female that inflicted the wound; do you? A. Yes. Q. It could
have been a female; right? A. Yes.”).

                                          - 14 -
J-E01001-19


of Appellant, at 19. McNair—who was directly monitoring Perez and Hazelton

after the first shoving match—did not see Hazelton get stabbed. See N.T.

Second Preliminary Hearing, 4/5/17, at 63 (Q. Okay. But you didn’t see

anything happen to the victim during this pushing match? A. I didn’t see no

stabbing, basically. Q. That’s what I’m asking you. You didn’t see none of

that; right? A. No, I didn’t see that.”). McNair only realized Hazelton had

been stabbed after an unknown woman shouted “they cut him” “a couple of

seconds” after McNair separated the two. Id. at 78; see also id. at 66 (“Q.

Okay when she said [‘they cut him’], you did not see the Spanish guy [Perez],

did you? A. No, I was facing the black guy [Hazelton], basically. Q. You

don’t know where the Spanish guy was, do you? A. At that moment, no,

because I was right there facing the black guy.”).

       At some point during the second altercation, before McNair noticed

Hazelton had been stabbed, he saw Perez make an “arm movement[9]”

towards Hazelton’s “neck area.” Id. at 76. Enough time elapsed following

the arm movement for McNair to separate Hazelton and Perez. Id. at 77.

Moreover, McNair never saw anyone, including Perez, in possession of an item

that could have been used as a weapon at any point, nor did he hear any

breaking glass. See id. at 61–62. The police never recovered a weapon. See

____________________________________________


9 Nothing in the notes of testimony sheds clarity on the “arm movement”
described by McNair. N.T. Second Preliminary Hearing, 4/5/17, at 76.




                                          - 15 -
J-E01001-19


id. at 103. Finally, the record shows that the second, critical confrontation

took place in the midst of between ten and thirty people facing off against one

another.10    See N.T. 55 (Q. How many people were in each group? A. . . .

[I]t wasn’t more than 15; and it wasn’t less than five, like it was . . . two

groups of people.”).

       Accepting McNair’s testimony as true, we are nonetheless unable to find

it more likely than not that Hazelton’s wound resulted from Perez’s use of a

deadly weapon, as there are no facts—be it a weapon located at Bleu Martini

or on Perez’s person, clarifying testimony from the woman whose cries

brought Hazelton’s injury to McNair’s attention, footage from Bleu Martini’s

video security system, or actions evincing a motive on Perez’s part—to

supplement McNair’s description of a furtive arm movement, the results of

which he did not see.          Prado, supra at 10–11; Ouch, supra at 923;

McBride, supra at 591.

       The Commonwealth’s second inference, that Perez subsequently

engaged in “guilty behavior and efforts to conceal his role in the murder

[which] supported the reasonable inference of his culpability[,]” rests on an

inapposite reading of the record. See Brief of Appellant, at 20. Specifically,

the Commonwealth’s analysis of the legal implications of flight following a


____________________________________________


10 The Commonwealth argues there is “nothing in the record to suggest that
there were ‘30 people’ in the small lounge space where the victim was
stabbed.” Brief of Appellant, at 22. McNair’s testimony belies that assertion.
See N.T. Second Preliminary Hearing, 4/5/17, at 54–56.

                                          - 16 -
J-E01001-19


crime and concealing evidence rests on the assumption that Perez fled or

concealed evidence. See id. (citing Commonwealth v. Rizzuto, 777 A.2d

1069, 1078 (Pa. 2001) (fleeing scene of crime can demonstrate consciousness

of guilt) and Commonwealth v. Dollman, 541 A.2d 319, 322 (Pa. 1988)

(concealing evidence can prove accused’s intent or state of mind)).

      Though the Commonwealth asserts Perez fled and concealed evidence,

the record shows he stayed at Bleu Martini’s premises and cooperated with

bar security and the police. Martinez saw Perez “coming outside [with] blood

on his shirt.” N.T. First Preliminary Hearing, 3/22/17, at 10. Martinez then

“made an assumption” that Perez had stabbed Hazelton, and punched him in

the face. Id. at 11. Perez then went back inside Bleu Martini. Id. McNair

noticed Perez walking inside Bleu Martini because he was in violation of the

dress code, not because of his behavior during or after the second pushing

match. See N.T. Second Preliminary Hearing, 4/5/17, at 36–37 (“I seen the

Spanish guy in a tank top basically and the rules to the club is like you must

have a shirt on. So I was like, sir where’s your shirt?”). Perez admitted the

blood on his shirt came from “an incident” in the club and that the shirt was

in the bathroom trashcan. Id. at 39. When McNair demanded Perez retrieve

the shirt, he complied. Id. at 39–40.

      When Officer Stone arrived, Perez was the lone patron left at Bleu

Martini. Id. at 92. The security staff detained Perez because of the $600 he

owed on his tab, not because they thought he was involved in stabbing


                                    - 17 -
J-E01001-19


Hazelton. See id. at 92, 100 (“Q. [] So you go in, you see my client, and they

tell you that he got a $600 tab; right? A. Yes. Q. That’s why he was held

there, wasn’t it? A. Right.”). When Officer Stone asked Perez where his shirt

was, Perez again proved compliant, retrieving his bloody shirt from under the

seat. Id. at 90–92. Officer Stone subsequently asked Perez how the blood

got there, and Perez “just said he got hit” without admitting he was involved

in a fight. Id. at 92.

      Perez’s actions contrast sharply with the factual circumstances

surrounding the Commonwealth’s proffered case law concerning flight,

wherein defendants actually left the scene of the crime.           See Brief of

Appellant, at 20 (citing Rizzuto, supra at 1075–78, (finding flight evinced

consciousness of guilt where defendant told his friend he was responsible for

assaulting neighbor and was “on the run[.]”)). Likewise, Perez’s behavior is

clearly distinguishable from the cases the Commonwealth presents to

illustrate the legal implications of concealing evidence, which detail defendants

destroying evidence of wrongdoing.       See id. (citing Commonwealth v.

Truong, 36 A.3d 592, 600 (Pa. Super. 2012) (en banc) (inferring

consciousness of guilt from bucket of bloody rags defendant used to clean

room where he killed his father) and Commonwealth v. Gonzalez, 858 A.2d

1219, 1223 (Pa. Super. 2004) (inferring consciousness of guilt where

defendant shot victim in van, left body in van, procured gasoline, and lit van

on fire)). As Perez stayed at the scene of the crime, cooperated with club


                                     - 18 -
J-E01001-19


staff, and complied with police, we are unable to find it reasonable to infer

Perez’s actions betrayed a consciousness of guilt. See Ouch, supra at 923.

      We are likewise unable to infer a consciousness of guilt from Perez’s

words, which the Commonwealth asserts constitute a false denial to police.

Brief of Appellant, at 21.   The testimony in question, recounted by Officer

Stone, reads as follows:

      Q. What did you ask [Perez]?

      A. I asked him how did the blood get on there[] and he said
      when he was fighting, you know, he got hit and that’s how the
      blood got on there.

      Q. Did [Perez] admit to you that he was fighting?

      A. No, he just said he got hit.

N.T. Second Preliminary Hearing, 4/5/17, at 91–92 (emphasis added).

      While DNA evidence later showed it to be Hazelton’s blood on Perez’s

shirt, Perez offered an extremely limited answer to Officer Stone, which, in

light of his otherwise cooperative behavior, can hardly be said to have

“[misled] the police investigation and to obfuscate his participation in the

crime.” See Commonwealth v. Calloway, 459 A.2d 795, 799 (Pa. Super.

1983) (offering three statements to police denying involvement in robbery, in

spite of co-conspirator testifying to defendant’s role in robbery, constituted

false denial). Perez’s near non-answer fails to constitute a false denial under

the Commonwealth’s own proffered case law. See Brief of Appellant, at 21

(citing Commonwealth v. Glass, 405 A.2d 1236, 1242 (Pa. 1979) (denying


                                    - 19 -
J-E01001-19


knowledge of victim’s injury where defendant admitted to being at scene of

crime moments before and moments after stabbing constituted false denial)

and Commonwealth v. Martin, 640 A.2d 921, 926 (Pa. Super. 1994)

(asserting spots on ceiling were juice, in light of history of abusing child, and

DNA test revealing spots were child’s blood, constituted false denial)). Perez’s

words, therefore, form an improper basis for inferring consciousness of guilt.

Ouch, supra at 923

      In sum, we find the law prohibits this Court from accepting the

Commonwealth’s inferences as reasonably drawn from the record. See Ouch,

supra at 923 (requiring the court accept “inferences reasonably drawn from

the record”); see also McBride, supra at 591 (finding evidentiary inferences

“constitutionally infirm unless the inferred fact is more likely than not to flow

from the proved fact on which it is made to depend.”). We have reviewed the

full record and accepted all facts in evidence without making an assessment

as to weight or credibility; even read in the light most favorable to the

Commonwealth, the evidence before us simply does not permit a finding that

Perez “is probably the perpetrator of [the] crime.” Ouch, supra 923. The

record before us details a senseless quarrel and a tragic killing, but fails to

furnish us with a sufficient quantum of evidence to link the two events at a

prima facie level. See id.

      Order affirmed.




                                     - 20 -
J-E01001-19


      President Judge Panella, President Judge Emeritus Gantman and Judge

Murray join this Opinion.

      Judge Nichols concurs in the result.

      Judge Olson files a Concurring and Dissenting Opinion in which President

Judge Emeritus Bender, Judge Kunselman and Judge McLaughlin join.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/30/19




                                    - 21 -
