J-A10035-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                       Appellant               :
                                               :
                                               :
                v.                             :
                                               :
                                               :
    JORGE FRETTS                               :   No. 2443 EDA 2019
                                               :
                       Appellee                :

                 Appeal from the Order Entered August 14, 2019
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                        No(s): CP-51-CR-0002763-2019


BEFORE: BOWES, J., SHOGAN, J., and PELLEGRINI, J.*

MEMORANDUM BY PELLEGRINI, J.:                          FILED AUGUST 14, 2020

        The Commonwealth appeals from the order of the Court of Common

Pleas of Philadelphia County (trial court) granting a pretrial motion to quash

and dismiss charges of homicide by vehicle, involuntary manslaughter and

recklessly endangering another person against Jorge Fretts (Fretts).      After

review, we reverse and remand for further proceedings.

        On November 28, 2017, Fretts was driving a garbage truck when he

struck and killed Emily Fredericks (Fredericks) while she was riding a bicycle.

The collision occurred at the intersection of Spruce and 11th Streets in Center

City Philadelphia.      Just before the collision, Fretts and Fredericks were


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*   Retired Senior Judge assigned to the Superior Court.
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traveling beside each other on Spruce Street, which is a one-way street with

a bike lane on the right-hand side. About 125 feet before the intersection,

the bike lane becomes a right-turn lane that motorists must yield to cyclists.

Unaware that someone was to his right in the bike lane, Fretts made a right

turn onto 11th Street and into the path of Fredericks, knocking her to the

ground and running her over with the truck’s wheels resulting in her death.

        During their investigation, the Commonwealth obtained two videos

related to the collision. The first was from the intersection and showed the

actual collision. According to the Commonwealth, the video shows that Fretts

did not use his turn signal before turning. The other video was from inside

the cab of the truck. Among other things, the Commonwealth believes that

the video shows Fretts shuffling through papers in the center console just

before turning his truck.           Based in large part on these videos, the

Commonwealth charged Fretts with homicide by vehicle, involuntary

manslaughter and recklessly endangering another person.1

        At the April 17, 2019 preliminary hearing, Fretts stipulated to the two

videos.    After marking both videos for identification as C-2 and C-3, the

Commonwealth showed them several times during its direction of its sole

witness, an Accident Investigation District (AID) officer.    Similarly, Fretts

replayed them multiple times during his cross-examination of the officer.


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1   75 Pa.C.S. § 3732(a), 18 Pa.C.S. §§ 2504(a) and 2705, respectively.


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Despite marking the videos for identification, the Commonwealth never

admitted them into evidence. At the conclusion of the hearing, all charges

were held for court.

       After being bound over for court, Fretts filed a motion to quash the

return of transcript claiming the Commonwealth failed to make out a prima

facie case at the preliminary hearing.2 As part of his motion, Fretts submitted

a USB drive containing multiple videos and photographs but not the two videos

shown at the preliminary hearing. At the August 14, 2019 hearing on the

motion, the Commonwealth did not show the videos or enter them into

evidence for the trial court to view. At the conclusion of the hearing, the trial

court granted the motion and dismissed all charges without ever viewing the

videos.   On August 23, 2019, the Commonwealth filed a notice of appeal

certifying that the trial court’s order substantially handicapped its prosecution

under Pa.R.A.P 311.3




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2“A defendant may challenge the sufficiency of the evidence presented by the
Commonwealth at the preliminary hearing by filing a motion for Writ of Habeas
Corpus in Common Pleas Court. In Philadelphia County, this motion is
generally referred to as a Motion to Quash Return of Transcript.”
Commonwealth v. McBride, 595 A.2d 589, 590 n.2 (Pa. 1991).

3Fretts contends that the appeal should be quashed because it is interlocutory
and its remedy is to refile those charges. However, under Philadelphia County
Local Criminal Rule 500(H), Common Pleas Motions Court judges’ orders
discharging an accused are final orders subject to appellate review. See
Commonwealth v. Weigle, 997 A.2d 306, 308 n.5 (Pa. 2010).

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      Despite filing its notice of appeal a week earlier, on August 30, 2019,

the Commonwealth hand-delivered to the trial court a USB drive with the two

videos that were shown at the preliminary hearing. After viewing the videos,

the trial court now believes there was prima facie evidence for the charges to

go to trial.    Accordingly, the trial court requests that we vacate its order

granting the motion to quash and remand so that the trial court may now deny

the motion.

      “In reviewing a trial court’s order granting a defendant’s petition for writ

of habeas corpus, we must generally consider whether the record supports

the trial court’s findings, and whether the inferences and legal conclusions

drawn from those findings are free from error.” Commonwealth v. Hilliard,

172 A.3d 5, 10 (Pa. Super. 2017) (internal citations and quotation marks

omitted).      Further, “the evidentiary sufficiency, or lack thereof, of the

Commonwealth’s prima facie case for a charged crime is a question of law,”

and the appellate court’s review is plenary. Commonwealth v. Karetny,

583 Pa. 514, 528, 880 A.2d 505, 513 (2005).

      “The purpose of a preliminary hearing is to avoid the incarceration or

trial of a defendant unless there is sufficient evidence to establish a crime was

committed and the probability the defendant could be connected with the

crime.”     Commonwealth v. Jackson, 849 A.2d 1254, 1257 (Pa. Super.

2004) (internal citation omitted); see also Pa.R.Crim.P. 542(D) (stating

issuing authority shall determine from evidence presented at preliminary


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hearing whether there is prima facie case that (1) an offense has been

committed; and (2) the defendant has committed it).

     The Commonwealth establishes a prima facie case when it
     produces evidences 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. Inferences 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.

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

citations, quotations and emphasis omitted).

     After a preliminary hearing,

     A pre-trial habeas corpus motion is the proper means for testing
     whether the Commonwealth has sufficient evidence to establish 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. To meet its burden, the Commonwealth may
     utilize the evidence presented at the preliminary hearing and also
     may submit additional proof.

Commonwealth v. Dantzler, 135 A.3d 1109, 1112 (Pa. Super. 2016) (en

banc) (internal citations and quotation marks omitted).

     Relevant to this matter, a trial court’s review in a pretrial motion for writ

of habeas corpus includes the evidence presented at the preliminary hearing

and any additional evidence the Commonwealth produces at the hearing on

the motion.   See Commonwealth v. Morman, 541 A.2d 356, 360 (Pa.

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Super. 1988) (“To make this determination [at a habeas corpus hearing], the

trial court should accept into evidence the record from the preliminary hearing

as well as any additional evidence which the Commonwealth may have

available to further prove its prima facie case.”). Significantly, we have held

that a trial court’s use of a diminished record in granting a pretrial habeas

corpus petition to be a misapplication of the law warranting reversal, as the

trial court should review the preliminary hearing transcript in conjunction with

all the evidence presented at the hearing. See Hilliard, supra at 11.

      On appeal, the Commonwealth, like the trial court, requests us to

remand to the trial court because it dismissed the charges without viewing the

two videos that were shown at the preliminary hearing. Relying on Hilliard,

the Commonwealth argues that the trial court used a diminished record in

making its decision. Fretts counters that we should not consider the videos in

reviewing the trial court’s order. He points out that the Commonwealth never

admitted the videos into evidence at the preliminary hearing and did not

submit them until after this appeal had been filed.

      As related above, the Commonwealth’s videos played a central role in

the presentation of their case at the preliminary hearing. At the outset of the

hearing, both videos were stipulated to by Fretts and then marked for

identification as C-2 and C-3, respectively. See N.T., 4/17/19, at 5-6. The

Commonwealth showed C-2, the video of the collision, to the AID officer, as

did Fretts during his cross-examination. Id. at 13, 20. According to the AID


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officer at the preliminary hearing, this video shows Fretts failing to use his

turn signal before turning right onto 11th street. Id. at 13. Likewise, the

video inside the cab of the truck, which was stipulated to and marked as C-3,

was shown twice to the AID officer by the Commonwealth.           Id. at 15-16.

Fretts, meanwhile, made heavy use of the video in his cross-examination,

showing it again four times to the officer as the two went back and forth about

what Fretts did in the moments before the collision. Id. at 24-29.

      After our review of the preliminary hearing transcript, we fail to see how

any review of the magistrate’s decision could be rendered without also viewing

the videos. While the videos themselves were not offered into evidence, the

videos were shown a total of eight times and formed the core of the AID

officer’s testimony at the preliminary hearing, making the content of those

videos evidence even though the physical “thumb” drives were not introduced.

Because the trial court did not take into consideration the content of those

videos, the trial court was unable to properly decide whether a prima facie

case had been made out before the magistrate.             See Hillard, supra.

Accordingly, we reverse the trial court’s August 14, 2019 order granting Fretts’

motion to quash.

      However, on remand, a new hearing on Fretts’ motion must be held.

Because the Commonwealth filed its appeal before submitting the videos, the

trial court could no longer proceed on the matter. See Pa.R.A.P. 1701(a). As

a result, the trial court cannot rule on Fretts’ motion to quash until the videos


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have been properly admitted and Fretts has been given an opportunity to

respond, if he so chooses.

     Order reversed. Case remanded. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/14/20




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