J-A08028-18

                                   2018 PA Super 152



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

                      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,
                           MC-51-CR-0005268-2017


BEFORE:      PANELLA, J., LAZARUS, J., and STRASSBURGER*, J.

OPINION BY LAZARUS, J.:                                    FILED JUNE 05, 2018

        The Commonwealth of Pennsylvania (“Commonwealth”) appeals from

the order, entered after Carlos Perez’s second preliminary hearing, dismissing

the criminal charges against him. The trial court twice concluded that the

Commonwealth failed to establish a prima facie case that Perez committed the

offenses of first-degree murder1 and possession of an instrument of crime

(“PIC”).2 We conclude that the Commonwealth’s appeal is interlocutory, and

thus, we quash.

        The trial court set forth the facts of this case as follows:



____________________________________________


1   18 Pa.C.S.A. § 2502(a).

2   18 Pa.C.S.A. § 907.
____________________________________
* Retired Senior Judge assigned to the Superior Court.
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     On August 21, 2016, [Andrew Hazleton] arrived at the Bleu Martini
     with Hector Martinez after drinking on the waterfront in New
     Jersey. . . . Martinez saw a man in a gray shirt sitting in a [booth]
     . . . who [sic] he identified as [Perez] at [Perez’s first] preliminary
     hearing.

     Marquis McNair was working the inside front door as a bouncer on
     August 21, 2016. Around 1:50 a[.]m[.], McNair and his fellow
     bouncer witnessed a “little push match” between two groups of
     people. The pushing match occurred in a small side room to the
     left of the club entrance, which had two C[-]shaped booths along
     the right wall, and a bench along the back wall under the window.
     When the pushing match occurred, there were no more than 30
     people in the area. McNair and his fellow bouncer ended the
     pushing match easily, and two of the men involved said[,] “like
     we know each other,” “we friends,” and “we cool, we cool.” These
     two men were [Perez] and [Hazleton].

     McNair and the other bouncer then stood about fifteen feet away
     from the two groups, in an area where they had a clear line of
     sight. Within a few minutes, another, more aggressive, pushing
     match occurred. The bouncers moved quickly to stop the second
     pushing match and McNair put himself between [Perez] and
     [Hazleton], while the other bouncer moved others in the area
     toward the door.

     A few seconds after the bouncer broke up the second pushing
     match, McNair heard a woman scream in the crowd “they cut him.”
     McNair then turned to [Hazleton] and saw him holding his neck.
     [Hazleton] removed his hand from his neck and blood gushed out
     of his neck and onto the floor. McNair also saw blood on his fellow
     bouncer’s suit. McNair was unaware if anyone else got blood on
     them, or where [Perez] was located at this time, because his focus
     was on [Hazleton]. At this point, [Hazleton] walked past McNair
     and outside of the club.

     McNair did not see [Hazleton] get stabbed. McNair did not see
     any weapon in [Perez’s] hands, including when he got in the
     middle of [Perez] and [Hazleton] during the second pushing
     match. McNair testified that he would have been able to see if
     [Perez] was holding an object, regardless of the movement of
     [Perez’s] and [Hazleton’s] hands during the pushing matches. At
     no point did McNair see a weapon or any broken glass that could
     have been used to inflict [Hazleton’s] wounds.

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     Martinez did not witness either pushing match, or any interaction
     between [Perez] and [Hazleton]. After he saw [Perez] get up from
     the booth and walk towards the group of dancers, he did not notice
     anything else until the bouncers quickly walked by him to break
     up the group. When [Hazleton] walked by him on his way out of
     the club, Martinez followed. Once outside, [Hazleton] removed
     his hands from his throat and more blood poured out. Martinez
     saw that [Hazleton] had been stabbed and Martinez “went
     berserk.” He turned to go back in the club. As he tried to reenter,
     [Perez] attempted to leave the club. Martinez saw that [Perez]
     had blood on his shirt and assumed that he was the one who
     stabbed [Hazleton]. Martinez said to [Perez] “what did you do to
     my friend” and punched him in the face. [Perez] did not respond,
     but went back inside the club.

                                *     *     *

     After the stabbing, McNair was helping the rest of the staff clear
     out the club when he saw [Perez] sitting at a booth by himself.
     [Perez] was only wearing a tank top, which is against club policy.
     McNair asked [Perez] where his shirt was and he responded that
     he had thrown it out in the bathroom because it had gotten blood
     on it in the earlier incident. McNair then walked [Perez] to the
     bathroom, made him retrieve the bloody shirt, returned him to
     the booth, and then continued to help the rest of the staff. McNair
     last saw [Perez] talking to police, while handcuffed, with his shirt
     on his shoulder.

     Officer Stone was alerted to a stabbing at the Bleu Martini by a
     passerby while he was standing at 2nd and Chestnut Street. After
     calling medics and waiting for [Hazleton] to be taken by
     ambulance to a hospital, Officer Stone entered the Bleu Martini
     and [Perez] was pointed out to him. Officer Stone was told that
     [Perez] was not allowed to leave because he owed $600.00 on his
     tab and had been in the group involved in the earlier “fight.”

     Officer Stone approached [Perez] and asked him what had
     happened. [Perez] originally denied being a part of the fight, but
     after several questions, admitted to being punched in the face
     earlier that night. When asked where his shirt was, [Perez] pulled
     the bloody shirt from behind him in the booth and showed it to
     Officer Stone. Officer Stone saw no blood on [Perez’s] hands, or
     anywhere else on his body. Officer Stone also never saw an object

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J-A08028-18


       that could have inflicted the injury sustained by the victim. Officer
       Stone reported what he found to the detectives and was told to
       bring [Perez] to Central Detectives. [Perez] was released from
       Central Detectives and was not arrested in connection with the
       stabbing until February 23, 2017.

                                      *        *   *

       [Hazleton] sustained a stab wound in the neck, specifically the
       internal jugular vein on the left side at the carotid artery and
       trachea. The cause of death was homicide.

Trial Court Opinion, 6/28/17, at 3-8.

       On March 22, 2017, the trial court held a preliminary hearing before the

Honorable Thomas Gehret. At the conclusion of the hearing, Judge Gehret

dismissed Perez’s charges for lack of evidence. On April 5, 2017, the trial

court held a preliminary hearing on refiled charges before the Honorable

Kathryn Streeter-Lewis. At the conclusion of the preliminary hearing, the trial

court again dismissed the charges for lack of evidence. On April 6, 2017, the

Commonwealth filed a timely motion to reconsider and a motion to set bail

pending trial. On April 7, 2017, after argument, the trial court denied both

motions.     On April 25, 2017, the Commonwealth timely appealed Judge

Streeter-Lewis’ April 5, 2017 order dismissing Perez’s charges.3 Both the trial

court and the Commonwealth have complied with Pa.R.A.P. 1925. On appeal,

the Commonwealth raises the following issue for our review:
____________________________________________


3 The record does not reflect the existence of a signed order. However, the
fact that there is no signed order does not hamper our review of this matter,
as the Pennsylvania Rules of Appellate Procedure require only that the order
be entered on the docket for it to be reviewed by this Court. See Pa.R.A.P.
301(a)(1), (c). Here, the record reflects the order was entered on the criminal
docket.


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      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 [Hazleton] moments before he was
      fatally stabbed in the neck, and then tried to flee the scene,
      conceal evidence, and lie to the police about his involvement?

Brief of Appellant, at 4.

      The sole issue in this case is whether the Commonwealth established a

prima facie case that Perez murdered Hazleton with an instrument of crime.

Prior to addressing the merits of the issue raised by the Commonwealth, we

must determine if this appeal is properly before us. Instantly, Perez does not

argue that because the trial court dismissed the charges without prejudice,

the order is not a final order and, thus, we should quash the appeal as

interlocutory. However, it is incumbent upon this Court to raise jurisdictional

issues sua sponte when appropriate. Commonwealth v. Berardi, 524 A.2d

1365, 1366 (Pa. Super. 1987).

      A final order, for purposes of appeal, can be one that disposes of all the

parties and all the claims, is expressly defined as a final order by statute, or

is entered as a final order pursuant to the trial court’s determination. In re

Estate of Cella, 12 A.3d 374, 377 (Pa. Super. 2010); Pa.R.A.P. 341.

      Generally, when the trial court dismisses criminal charges, the

Commonwealth can simply refile charges and, therefore, an appeal from such

an order is interlocutory. Commonwealth v. Price, 684 A.2d 640, 641 (Pa.

Super. 1996). Traditionally, a determination of whether dismissal of criminal

charges is considered a final order appealable by the Commonwealth rests


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J-A08028-18



upon the trial court’s reason for dismissal. Commonwealth v. Waller, 682

A.2d 1292, 1294 (Pa. Super. 1996).

        In Waller, the Commonwealth averred its appeal of the dismissal of all

charges against the defendant was appropriate where it had failed to produce

any witnesses against the defendant at his preliminary hearing. The trial court

dismissed the charges without prejudice, and jeopardy had not attached at

the time of dismissal. Id. at 1295. The Commonwealth also conceded that

when the trial court dismissed the charges, no Rule 11004 or statute of

limitations problems existed. Id. The Waller Court, in determining whether

it had appellate jurisdiction over the Commonwealth’s appeal, stated as

follows:

        [I]f the defect [that] precipitated the dismissal may be cured by
        the Commonwealth, a subsequent appeal to this Court is
        considered interlocutory. On the other hand, if the defect which
        requires the dismissal of charges is incurable, then the order
        dismissing the charges is final, and appellate review is proper. For
        example, an order dismissing the charges against a
        defendant based upon the Commonwealth’s failure to
        establish a prima facie case has been considered
        interlocutory, as the Commonwealth may refile the criminal
        charges. Further, this Court has held that the only avenue of
        redress for the Commonwealth when a complaint has been
        dismissed is to refile the complaint before the statute of limitations
        has expired.

Id. at 1294 (emphasis added) (citations omitted).              The Waller Court

determined that the Commonwealth’s appeal was interlocutory, as the defects


____________________________________________


4   Pa.R.Crim.P. 1100 (renumbered and amended 3/1/00, eff. 4/1/01).


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J-A08028-18



leading to the dismissal of charges against the defendant were curable.

Accordingly, the Waller Court quashed the Commonwealth’s appeal.

      In a subsequent case, Commonwealth v. Singletary, 803 A.2d 769

(Pa. Super. 2002), this Court clarified that “Waller does not stand for the

proposition that the Commonwealth may only re-file charges where it intends

to present evidence that was neither known nor discoverable at the time of

the prior preliminary hearing.”    Singletary, 803 A.2d at 774. See also

Commonwealth v. Carbo, 822 A.2d 60, 66 (Pa. Super. 2003) (abrogated on

different grounds) (there is “no explicit or implicit requirement that the

Commonwealth must possess newly discovered evidence before it may refile

criminal charges.”).

      Furthermore, an appeal from an order quashing a criminal charge or

charges is not per se interlocutory. “In a criminal case . . . the Commonwealth

may take an appeal as of right 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.” Pa.R.A.P. 311(d). In

other words, an order quashing a criminal charge is unquestionably final and

appealable as to that charge, since a trial on the remaining charges would

permanently preclude trial on the quashed charge.         Commonwealth v.

Karetny, 880 A.2d 505, 512-13 (Pa. Super. 2005). Such orders, like some

suppression orders, which are undeniably appealable by the Commonwealth,

impose a handicap that the prosecution cannot overcome without a pretrial

appeal. Id. at 513.

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      Here, the only charges the Commonwealth filed against Perez were first-

degree murder and PIC.         Following a preliminary hearing, the trial court

dismissed all charges, due to lack of evidence, without prejudice. Similar to

Waller, the Commonwealth sought to cure the defects leading to the dismissal

of Perez’s charges by refiling the charges and presenting new witnesses and

additional evidence. See Commonwealth v. Jones, 633 A.2d 185, 187 (Pa.

Super. 1993) (Commonwealth may seek to reinstate charges dismissed by

magistrate    by   refiling   same   charges      before   different   magistrate    if

Commonwealth intends to produce additional evidence at new preliminary

hearing). Following a second preliminary hearing, a different trial judge again

dismissed all of Perez’s charges.        The Commonwealth did not refile the

charges; rather, it filed a motion to reconsider, arguing that it had “established

a prima facie case against [Perez] for each of the material elements of the

charges of [first-degree] [m]urder and [PIC].” Memorandum in Support of

Motion   to   Reconsider,     4/6/17,   at   6.     The    trial   court   denied   the

Commonwealth’s motion.

      On appeal, the Commonwealth only argues that the evidence of record

is sufficient to establish a prima facie case of first-degree murder and PIC

against Perez. The Commonwealth’s statement of jurisdiction cites Karetny

and Pa.R.A.P. 341. However, the Commonwealth’s statement of jurisdiction

is improper, insofar as the procedural posture of the instant case is clearly

distinguishable from that in Karetny. Brief of Appellant, at 1 (Karetny court




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J-A08028-18



held    Commonwealth         may     “appeal   from       an   order    quashing    criminal

charges[.]”).

        In    Karetny,     the    Commonwealth        sought     to    establish   appellate

jurisdiction pursuant to Rule 311(d), not Rule 341. The trial court dismissed

only the felony charges against defendant, forcing the Commonwealth to

proceed on only the misdemeanor charges if it had forgone its appeal. The

Commonwealth correctly appealed from the order dismissing defendant’s

felony charges and certified, pursuant to Rule 311(d), that the trial court’s

quashal of charged felonies would substantially handicap its prosecution. See

Rule 311(d) (“[T]he Commonwealth may take an appeal as of right from an

order that does not end the entire case where [it] certifies in the notice of

appeal       that   the   order   will   terminate   or    substantially    handicap    the

prosecution.”).

        Instantly, the Commonwealth cites to Karetny, supra, but it does not,

nor can it, certify in its notice of appeal that dismissal of Perez’s charges will

terminate or substantially handicap the prosecution.5                       Moreover, the

Commonwealth does not argue why it forewent refiling the charges or that the

trial court’s order precluded it from doing so (e.g., dismissal of charges with
____________________________________________


5   The Commonwealth’s notice of appeal states as follows:

        Notice is hereby given that the Commonwealth of Pennsylvania
        hereby appeals to the Superior Court of Pennsylvania from the
        order of the Honorable Kathryn Street Lewis entered in this matter
        April 5, 2017. A copy of this order is presently unavailable.

Commonwealth Notice of Appeal, 4/6/17, at 1.

                                            -9-
J-A08028-18



prejudice). Therefore, the proper course of action would have been to refile

the charges. Jones, 633 A.2d at 187-88 (“[T]he Commonwealth may seek

to reinstate a charge dismissed by a magistrate by re-filing the same charge

before a different magistrate.”) (emphasis in original).

      To refile the charges against Perez, the Commonwealth must only

reasonably “believe that its evidence was sufficient to establish a prima

face case or [] [intend] to produce additional evidence at the new preliminary

hearing.” Id. at 188 (emphasis added). However, while the Commonwealth

must be free to present its case again even after it has failed to convince a

neutral magistrate that it has a prima facie case, its ability to re-present its

case is not limitless. Commonwealth v. Medrano, 788 A.2d 422, 427 (Pa.

Super. 2001). “[I]f the Commonwealth’s conduct intrudes unreasonably upon

the due process right of individuals to be free from governmental coercion,

the Commonwealth should not be permitted to present the case repeatedly

before successive magistrates.” Id.

      The Commonwealth’s brief suggests that it reasonably believes it

presented evidence sufficient to make a prima facie case against Perez, and

thus, its ability to refile is not foreclosed.   Jones, supra.   Moreover, the

Commonwealth argues neither that its prosecution of the foregoing charges is

foreclosed by the statute of limitations, nor that a Rule 600 issue exists. In

light of the foregoing, we find that the Commonwealth’s appeal is from an

interlocutory order, not a final order. As such, we are without jurisdiction to

entertain it on its merits. Waller, supra; Pa.R.A.P. 741(b)(2) (appellate court

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has no jurisdiction arising out of attempt to appeal interlocutory order that is

not appealable as matter of right or without necessary permission).

      Appeal quashed.


      Judge Panella joins this Opinion.

      Judge Strassburger files a Dissenting Opinion.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/5/18




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