J-A11020-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellant

                       v.

ANDRES CASASNOVAS

                                                       No. 1604 MDA 2016


               Appeal from the Order Entered September 27, 2016
                 In the Court of Common Pleas of Centre County
               Criminal Division at No(s): CP-14-CR-0001758-2015


BEFORE: SHOGAN, J., MOULTON, J., and STEVENS, P.J.E.*

MEMORANDUM BY MOULTON, J.:                          FILED OCTOBER 04, 2017

       The Commonwealth of Pennsylvania appeals from the September 27,

2016 order of the Centre County Court of Common Pleas granting Andres

Casanovas’s pre-trial petition for writ of habeas corpus nunc pro tunc and

dismissing the charges of burglary and criminal trespass1 against him.2

After careful review, we reverse and remand.

____________________________________________


       *
           Former Justice specially assigned to the Superior Court.
       1
       18 Pa.C.S. §§ 3502(a)(1) and 3503(a)(1)(i). Casanovas was also
charged with simple assault by physical menace, 18 Pa.C.S. § 2701(a)(3),
and criminal mischief, 18 Pa.C.S. § 3304(a)(1). Those charges are still
pending.
       2
        In its notice of appeal, the Commonwealth certified that the order
granting Casanovas’s habeas petition substantially handicaps the
prosecution. Thus, the appeal is properly before us. See Pa.R.A.P. 311(d);
Commonwealth v. Ivy, 146 A.3d 241, 244 n.2 (Pa.Super. 2016).
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      The investigating officer summarized the facts underlying this appeal

as follows:
         On 11 November 2015 [Officer M.T. McDannel] met with
         the victim, Carolina PARDO [(“the victim”)] and her
         roommates at 300 Waupelani Drive #2024, State College,
         PA. The victim and the 4 female roommates began to
         explain that [Casanovas] came into the apartment this
         morning at 0300 hrs and punched 2 holes in the wall of the
         victim’s bedroom.

         [The victim] was visibly upset and shaken.         [She]
         explained that she used to date [Casanovas] for about 2
         years while here at Penn State. She explained that about
         2 months ago they broke up and that [Casanovas] has not
         been reacting well to the break up.       She described
         [Casanovas] calling her names and being very jealous of
         her and her actions. She has tried to calm the situation
         but he did not seem to understand.

                                    ...

         This morning [the victim] sent [Casanovas] a text
         message wishing him well and that they were done. He
         did not react well to this and said he was coming to her
         apartment to punch holes in the walls. She told him not to
         do this. [Casanovas] showed up about 2 minutes later and
         entered the apartment through an unlocked door. He then
         went to [the victim’s] bedroom and she was awake and
         watching TV. She said she sat up in bed and he punched
         the wall beside her head about 4 times, causing the
         drywall to break and make large holes.

Aff. of Probable Cause, 11/12/15, at 1.

      At the preliminary hearing, the victim testified regarding what

transpired in the moments immediately preceding the incident as follows:
         Q. Do you remember around what time these [text]
         messages were happening?

         A. 2:30 in the morning, 2:00 a.m.


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J-A11020-17


        Q. After [Casanovas] said he was going to break the
        walls, what did you tell him?

        A. I said, you’re not coming, Andres. He said, try me. I
        told him, it’s the truth, and then he told me, if you say one
        more good thing, I’m going to go. I said to him, you’re a
        rational person in this. You’re not going to come to my
        house and break the walls. Goodnight. And then he said,
        you just said it. And I said, if you want, you can hit
        my bed or my pillow, and a minute afterward, he
        went into the house, into my room.

        Q. Did you let him in?

        A. No, I didn’t.

N.T., 11/18/15, at 9-10 (emphasis added; full capitalization omitted).

     On November 12, 2015, Casanovas was charged with the above-

referenced offenses.   The Honorable Thomas J. Kistler held a preliminary

hearing on November 18, 2015, after which Casanovas was arraigned. On

December 16, 2015, Casanovas filed a petition for writ of habeas corpus

seeking dismissal of the burglary and criminal trespass charges, which Judge

Kistler denied. Judge Kistler concluded:
           In deciding whether the Commonwealth presented a
        prima facie case, courts look at whether the evidence at
        the preliminary hearing would, if accepted as true, allow
        the judge to give the case to a jury. In the case at bar,
        the question of whether [Casanovas] was licensed to be in
        the victim’s apartment is a question of fact, and must be
        determined by a jury. . . .

           Although there was testimony at the preliminary
        hearing that could lead a reasonable juror to believe
        [Casanovas] was licensed to enter the property, there was
        also testimony that could lead a reasonable juror to believe
        [Casanovas] was not licensed to enter the property.
        Reading the evidence in the light most favorable to the
        Commonwealth, the evidence presented at the preliminary


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           hearing establishes a prima facie case for the Criminal
           Trespass and Burglary charges.

Trial Ct. Op., 2/24/16, at 3 (internal citations omitted).

       On September 21, 2016, following discovery, Casanovas filed a second

petition for writ of habeas corpus nunc pro tunc. In his petition, Casanovas

alleged that on September 13, 2016, he received the text messages

exchanged between Casanovas and the victim on the night of the incident.

He attached to his petition the following text message from the victim to

Casanovas: “[Victim]: If you want, come and hit my bed or pillows. I will

hit them too. It would do me good.” Pet. for Habeas Corpus, 9/21/16, Ex.

A.3

       The Honorable Jonathan D. Grine held a hearing on Casanovas’s

second habeas petition on September 27, 2016. At the hearing, Casanovas

introduced the text message from the victim to Casanovas inviting him to

her apartment to “punch pillows” on the night of the incident. 4         The
____________________________________________


       3
        The victim and Casanovas communicated in Spanish on the evening
of the incident. The exhibit appended to the habeas petition contains what
appears to be a screenshot of the original text message in Spanish. The
screenshot includes a date and a time, but the time is illegible. Beneath the
screenshot is an English translation of the text message. At the hearing,
defense counsel stated that he provided the English translation of the
message. N.T., 9/27/16, at 50.
       4
        The document admitted into evidence at the September 27, 2016
hearing differs from the one attached to the habeas petition in several
respects. The document admitted at the hearing does not include the
screenshot of the original message from the victim to Casanovas, only the
English translation of the message. It also purportedly includes Casanovas’s
response, as follows:
(Footnote Continued Next Page)


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Commonwealth introduced a supplemental incident report, which included

additional information from the victim’s interviews with police.    The report

stated:
          At the same time [the victim] sent a [text] response to
          [Casanovas’s] threat, [the victim] heard someone coming
          through the front door.       [The victim] responded with
          “they” (meaning [the victim] and [Casanovas]) could
          punch pillows together. The person who came through the
          front door and into [the victim’s] room was [Casanovas].

N.T., 9/27/16, Cmwlth.’s Ex. 1. Judge Grine admitted both documents into

evidence.

      At the conclusion of the hearing, Judge Grine granted the habeas

petition and dismissed the burglary and trespass charges.          Judge Grine

concluded that, based on the text message, “a finding that [Casanovas] did

not have license to enter the victim’s apartment on the night of the incident

is clearly erroneous and would create a manifest injustice if followed.”

Opinion in Response to Matters Complained of on Appeal, 11/1/16, at 5

(“1925(a) Op.”). The Commonwealth timely appealed from that decision.
                       _______________________
(Footnote Continued)


          [Victim]: If you want, come and hit my pillows. I will hit
          them too. It will do me good.

          [Casanovas]: I warned you. Do whatever the f[***] you
          want. S[**]t!

N.T., 9/27/16, Casanovas’s Ex. A. Unlike the exhibit attached to the habeas
petition, this document does not indicate when the messages were sent.
The Commonwealth objected to the admission of this document on lack of
authentication grounds, which Judge Grine overruled. N.T., 9/27/16, at 49-
50.



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      On appeal, the Commonwealth asserts that the trial court erred in

granting Casanovas’s second habeas petition because: (1) the petition was

untimely filed; (2) the petition had already been considered and denied by a

judge of coordinate jurisdiction; and (3) the Commonwealth established a

prima facie case against Casanovas for burglary and criminal trespass.

Cmwlth.’s Br. at 4.

      The Commonwealth first argues that the trial court should have

dismissed Casanovas’s second habeas petition as untimely. We disagree.

      Under    Pennsylvania   Rule   of   Criminal   Procedure   578,   “[u]nless

otherwise required in the interests of justice, all pretrial requests for relief

shall be included in one omnibus motion.” Pa.R.Crim.P. 578. Rule 579(A)

further provides:
         Except as otherwise provided in these rules, the omnibus
         pretrial motion for relief shall be filed and served within 30
         days after arraignment, unless opportunity therefor did not
         exist, or the defendant or defense attorney, or the
         attorney for the Commonwealth, was not aware of the
         grounds for the motion, or unless the time for filing has
         been extended by the court for cause shown.

Pa.R.Crim.P. 579(A).    The decision whether to declare a pretrial motion

untimely is within the trial court’s discretion.      See Commonwealth v.

Cooke, 394 A.2d 1271, 1274 (Pa.Super. 1978).

      Here, Casanovas was arraigned on December 14, 2015 and filed his

first habeas petition on December 16, 2015.          Casanovas did not file his

second habeas petition until September 21, 2016, nine months after his

arraignment.


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      Rule 579(A) provides an exception to the 30-day filing requirement

where the evidence at issue was not previously known to the defense. See

Pa.R.Crim.P.    579(A).    In   his   petition,   Casanovas   averred   that   the

Commonwealth did not produce the text message at issue until September

13, 2016; he filed his second habeas petition eight days later. Based on the

averments in Casanovas’s petition, the trial court did not abuse its discretion

in considering the petition timely.

      Next, the Commonwealth contends that the trial court abused its

discretion in granting Casanovas’s second habeas petition under the

coordinate jurisdiction rule.     In response, Casanovas argues that the

coordinate jurisdiction rule was inapplicable because the “newly discovered”

text message constituted a substantial change in facts that compelled a

different result.

      Generally, “[j]udges of coordinate jurisdiction sitting in the same case

should not overrule each other's decisions.” Commonwealth v. Starr, 664

A.2d 1326, 1331 (Pa. 1995); see Zane v. Friends Hosp., 836 A.2d 25, 29

(Pa. 2003). The purpose of the coordinate jurisdiction rule is to “foster[] the

finality of pre-trial applications in an effort to maintain judicial economy and

efficiency.”   Commonwealth v. Turner, 73 A.3d 1283, 1286 (Pa.Super.

2013) (quotation omitted).      Departure from the rule is permitted “only 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

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clearly erroneous and would create a manifest injustice if followed.” Starr,

664 A.2d at 1332. Furthermore, “a later motion should not be entertained

or granted when a motion of the same kind has previously been denied,

unless intervening changes in facts or the law clearly warrant a new look at

the question.” Goldey v. Trustees of Univ. of Pa., 675 A.2d 264, 267 (Pa.

1996).

      At the preliminary hearing, the victim testified that on the night of the

incident, she had sent Casanovas a text message inviting him to her

apartment to “punch pillows.” The only “new” evidence Casanovas proffered

in support of his second habeas petition was the text message itself, which

stated: “[Victim]: If you want, come and hit my bed or pillows. I will hit

them too. It would do me good.” Pet. for Habeas Corpus, 9/21/16, Ex. A;

see N.T., 9/27/16, Casanovas’s Ex. A.        After considering this evidence,

Judge Grine determined:
         Judge Kistler and I don’t see eye to eye on this. I was
         inclined to let Judge Kistler’s habeas corpus stand.
         However, you know, with the text message, I can consider
         that evidence along with the [preliminary hearing]
         transcript. If I take them in context together, the Court’s
         going to grant the habeas corpus and dismiss Count 1 and
         Count 2 of the criminal information.

N.T., 9/27/16, at 44.

      We cannot conclude that the language of the text message, which was

consistent with victim’s preliminary hearing testimony, compelled a different

result than that reached by Judge Kistler. In his opinion, Judge Kistler noted

that while there was some evidence that could lead a jury to conclude that


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Casanovas was licensed to enter the victim’s apartment, there was also

evidence that could lead a jury to conclude that he was not licensed to enter

the apartment. Likewise, there was conflicting evidence before Judge Grine

with respect to whether Casanovas was licensed to enter the victim’s

apartment. In particular, the supplemental incident report contradicted the

victim’s prior testimony regarding the timing of her invitation to Casanovas.

The report stated that Casanovas entered the victim’s apartment while the

victim was sending the text message, suggesting that Casanovas may not

have received the invitation before his entry. This factual question should

be presented to a jury.

      The evidence before Judge Grine was substantially the same as the

evidence considered by Judge Kistler, and arguably weighed even more

heavily in the Commonwealth’s favor at the second hearing.           Thus, we

disagree with Judge Grine’s determination that Judge Kistler’s prior ruling

was erroneous and would create a manifest injustice if followed.

      Accordingly, we conclude that the trial court abused its discretion in

granting   Casanovas’s    second   habeas   petition   under   the   coordinate

jurisdiction rule.   See Commonwealth v. Brown, 402 A.2d 1007, 1008

(Pa. 1979) (where evidence is substantially same as that originally ruled

upon by first judge, second judge commits abuse of discretion in overruling

or vacating prior order); Musumeci v. Penn's Landing Corp., 640 A.2d

416, 419 (Pa.Super. 1994) (coordinate jurisdiction rule applies in all cases




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except where newly-discovered evidence or newly-developed legal authority

compels result different than that reached by first judge).5

       Order reversed. Case remanded for further proceedings. Jurisdiction

relinquished.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/4/2017




____________________________________________


       5
       Even if we had found no violation of the coordinate jurisdiction rule,
we would still reverse because the conflicting evidence presented at both
hearings regarding whether Casanovas was licensed to enter the victim’s
apartment precluded the grant of habeas relief. While Casanovas is correct
that a jury might find that he was so licensed, that possibility does not
warrant pretrial relief. As Judge Kistler correctly determined, “Reading the
evidence in the light most favorable to the Commonwealth, the evidence
presented at the preliminary hearing establishes a prima facie case for the
Criminal Trespass and Burglary charges.” Trial Ct. Op., 2/24/16, at 3.



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