J-A33019-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellant

                       v.

MICHELE WANKO

                            Appellee                 No. 1015 EDA 2014


                 Appeal from the Order entered March 7, 2014
               In the Court of Common Pleas of Delaware County
               Criminal Division at No: CP-23-CR-0005138-2013


BEFORE: FORD ELLIOTT, P.J.E., STABILE, and STRASSBURGER,* JJ.

MEMORANDUM BY STABILE, J.:                                 FILED MAY 04, 2016

        The Commonwealth appeals from the order the Court of Common

Pleas of Delaware County entered on March 7, 2014, dismissing the charge

of aggravated assault against Appellee, Michele Wanko, based upon a lack of

prima facie evidence of mens rea. We reverse.

        The factual and procedural background of this matter can be

summarized as follows. In the early morning hours of April 27, 2013, after

some drinking, Appellee, Michele Wanko, and her husband were in the

basement of their house where husband was showing Appellee how to

handle guns.       In particular, he was showing Appellee how to arm and

operate a number of handguns, and in particular, how to rack the slide of a
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*
    Retired Senior Judge assigned to the Superior Court.
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semi-automatic handgun. After he showed Appellee how to do that with

three handguns, Appellee picked up a fourth handgun.             Appellee was

standing in front of her husband and pointing the gun in the direction of his

chest. She racked the handgun and claimed to pull the trigger accidentally.

A bullet discharged striking her husband in the chest killing him.

      Following the shooting, a criminal complaint charging involuntary

manslaughter and aggravated assault was filed against Appellee. On August

14, 2013, a preliminary hearing was held before a Magisterial District Judge

(MDJ).     At the hearing, the Commonwealth moved to amend the criminal

complaint to include the additional charges of third degree murder and

possession    of   an   instrument   of   crime.    The   MDJ    granted   the

Commonwealth’s motion. After hearing the evidence against Appellee, the

MDJ dismissed the third degree murder charge, but held Appellee for trial on

the remaining charges.

      On September 11, 2013, Appellee was arraigned before the trial court,

at which time a criminal information charging Appellee with aggravated

assault, involuntary manslaughter, and possession of an instrument of crime

was filed against her. On September 16, 2013, Appellee filed a motion to

enlarge time to file a pretrial motion and a motion to modify conditions of

release.

      On September 19, 2013, the Commonwealth filed a second criminal

complaint charging Appellee with third degree murder in connection with the

same events that gave rise to the initial prosecution. On October 1, 2013,

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the Commonwealth filed a petition with the Delaware County President

Judge to assign the matter to a different MDJ. The next day, the President

Judge directed Appellee to file a response to the Commonwealth’s request

for reassignment. On October 4, 2013, Appellee filed a motion to stay the

proceedings and a petition for writ of habeas corpus in connection with the

second criminal complaint charging Appellee with third degree murder.

        On October 8, 2013, a hearing was held before the trial court to

address Appellee’s then outstanding motions, with the exclusion of those

pending before the President Judge. At the hearing, the parties agreed to

have the trial court preside over the preliminary hearing on the second

criminal complaint as well as all other outstanding motions.1

        A preliminary hearing before the trial court was held on October 24,

2013.     On November 27, 2013, the trial court found the Commonwealth

failed to establish a prima facie case of third degree murder against the

Appellee.    On December 11, 2013, the Commonwealth appealed to this

Court, but subsequently discontinued that appeal.

        On December 27, 2013, Appellee filed a habeas corpus motion seeking

dismissal of all charges against her.            The trial court held a hearing on

Appellee’s motion on March 6, 2014.              On March 7, 2014, the trial court
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1
  At the hearing, Appellee withdrew her motion to stay the proceedings and
the motion to modify conditions of release. The Commonwealth, on the
other hand, withdrew its petition seeking to have a different MDJ hear the
matter.



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granted Appellee’s request with regard to the aggravated assault charge, but

refused to dismiss the involuntary manslaughter and possession of an

instrument charges.      This appeal followed.   Both the trial court and the

Commonwealth complied with Pa.R.A.P. 1925.

      The Commonwealth argues the trial court erred in concluding the

Commonwealth did not present sufficient evidence to support a prima facie

case of aggravated assault against Appellee. Appellee argues the trial court

did not err in making such a finding.       In addition, Appellee argues the

Commonwealth waived the sufficiency issue by conceding on three separate

occasions that the trial court’s conclusion was correct.

      We first must address the waiver issue before we can entertain the

merits of this matter.    As noted, Appellee argues that the Commonwealth

waived its sufficiency of the evidence issue by conceding the trial court

properly concluded there was insufficient evidence of mens rea for the

aggravated assault charge.       In other words, Appellee argues that the

Commonwealth is estopped from arguing insufficiency of the evidence when

on three separate occasions the Commonwealth conceded that the evidence

was insufficient. Appellee, however, provides no legal authority under which

we could find waiver based on estoppel grounds. Failure to do so is fatal to

Appellee’s claim.     See, e.g., Pa.R.A.P. 2119(a); Commonwealth v.

Sherwood, 982 A.2d 483, 496 (Pa. 2009) (“By failing to provide any




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discussion of the claim with citation to relevant authority, [a]ppellant has

waived review of [his] claim.”).2

       Nonetheless, we have reviewed the three instances mentioned by the

Appellee as evidence of the Commonwealth’s concession that the trial court

was correct in its ruling.       Upon review, we conclude the record does not

support Appellee’s contentions.            Given that third degree murder and

aggravated assault based on recklessness share the same mens rea,3 and

that the trial court did not find mens rea for a third degree murder charge, it

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2
  Appellee also argues the Commonwealth waived any claim to the dismissal
of the third degree murder charge (and by implication, the aggravated
assault charge) by failing to file a Rule 1925(b) statement and then
discontinuing the appeal filed in connection with the dismissal of the third
degree murder charge. Appellee provides no explanation how one could
waive his or her claims on appeal if he or she has no right to an appeal on
those claims. Indeed, nowhere does Appellee acknowledge that dismissal of
criminal charges at a preliminary hearing is not appealable to this Court.
Commonwealth v. Hetherington, 331 A.2d 205, 208 (Pa. 1975).
Appellee also fails to note that the Commonwealth is not bound by an MDJ
decision dismissing criminal charges. Indeed, the Commonwealth may seek
a “review by another judicial officer, empowered to hold preliminary
hearings, provided that it is done within the period prescribed by the statute
of limitations for the charges in question.” Id. See also Pa.R.Crim.P. 544.
On the other hand, an order dismissing charges after a habeas corpus
hearing is appealable to this Court. See, e.g., Commonwealth v. Carbo,
822 A.2d 60, 68 (Pa. Super. 2003).
3
   More precisely, where the Commonwealth’s theory of the case for
aggravated assault is based on defendant’s recklessness, the Commonwealth
must show that assailant’s recklessness rose to the level of malice.
Commonwealth v. Kling, 731 A.2d 145, 147-48 (Pa. Super. 1999). The
malice that is required for aggravated assault is the same as that required
for third degree murder. Id.




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is correct the trial court could not logically and legally conclude there was

mens rea      for an aggravated assault charge.4             The Commonwealth

acknowledges this much, but this acknowledgment is far from conceding the

trial court’s ruling upon the evidence presented was correct.         Indeed, the

record shows that the Commonwealth not only disagreed with the trial

court’s premise, but also made it clear that it would appeal the ruling. N.T.

Hearing, 3/6/14 at 116. Thus, we find the record does not support waiver.

        Proceeding now to the merits of this matter, preliminarily we need to

address the      proper    standard and scope       of appellate    review.      The

Commonwealth argues the trial court applied improper standards in reaching

its conclusions. We agree.

        The trial court, quoting Commonwealth v. Karlson, 674 A.2d

249 (Pa. Super. 1996), stated that the decision to grant or deny a petition

for writ of habeas corpus is reviewed for manifest abuse of discretion. Trial

Court    Opinion,    12/31/2014,      at   9-10.   Later   on,   however,     quoting

Commonwealth v. Marti, 779 A.2d 1177 (Pa. Super. 2001), the court

stated the very same decision is reviewed for error of law. Id. A review of




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4
  See Commonwealth v. Hickson, 586 A.2d 393 (Pa. Super. 1990)
(malice is a constituent element of both third degree murder and aggravated
assault; jury’s finding of not guilty for third degree murder, i.e., a malicious
act, precludes a second trial for aggravated assault).




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caselaw from this Court does indeed appear to be inconsistent. 5 As such, we

will rely on the standard as set forth by our Supreme Court.                 In

Commonwealth v. Karetny 880 A.2d 505 (Pa. 2005), the Supreme Court

noted:

       The Superior Court panel majority stated that it would reverse
       the quashal order only if the trial court had abused its discretion
       and then ultimately concluded that there was no abuse of
       discretion. See [Commonwealth v. Karetny, 837 A.2d 474,
       477 n. 2 (Pa. Super. 2003) (en banc)]. However, it is settled
       that the evidentiary sufficiency, or lack thereof, of the
       Commonwealth’s prima facie case for a charged crime is a
       question of law as to which an appellate court’s review is
       plenary. See [Commonwealth v. Huggins, 836 A.2d at 862,
       865 (Pa. 2003)]. Indeed, the trial court is afforded no discretion
       in ascertaining whether, as a matter of law and in light of the
       facts presented to it, the Commonwealth has carried its pre-trial,
       prima facie burden to make out the elements of a charged crime.
       The panel majority misapprehended the governing standard in
       holding otherwise.

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5
  It appears a few panels of this Court relied on Karlson, which ultimately
relied on caselaw from the 1950s pertaining to habeas corpus proceedings
(post-conviction challenges), which were reviewed for abuse of discretion.
See Commonwealth ex rel. Kitchen v. Burke, 107 A.2d 193, 195 (Pa.
Super. 1954); Commonwealth ex rel. Richter v. Burke, 103 A.2d 293,
295 (Pa. Super. 1953). Ordinarily, these challenges now fall within the
purview of the Post-Conviction Relief Act. See, e.g., Commonwealth v.
Taylor, 65 A.3d 462, 465-66 (Pa. Super. 2013). At issue here is the review
of a pretrial disposition finding insufficient evidence to prove mens rea.
These rulings are reviewed for errors of law, not abuse of discretion. See
Commonwealth v. Karetny, 880 A.2d 505, 528-29 (Pa. 2005). It should
be noted that Karlson is not the only decision in which we misstated the
proper standard of review. See, e.g., Commonwealth v. Saunders, 691
A.2d 946 (Pa. Super. 1997), which is still relied upon by panels of this Court
even after Karetny. See, e.g., Commonwealth v. Williams, 911 A.2d
548, 443 (Pa. Super. 2006).



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Id. at 528.   See also Commonwealth v. Santos, 876 A.2d 360 (Pa.

2005):

     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. A trial court may grant a defendant’s petition
     for writ [of] habeas corpus where the Commonwealth has failed
     to present a prima facie case against the defendant. A prima
     facie case exists when the Commonwealth produces evidence of
     each of the material elements of the crime charged and
     establishes sufficient probable cause to warrant the belief that
     the    accused    committed     the   offense.     Notably,    the
     Commonwealth does not have to prove the defendant’s guilt
     beyond a reasonable doubt. Further, the evidence must be
     considered in the light most favorable to the Commonwealth so
     that inferences that would support a guilty verdict are given
     effect.

Id. at 363 (citations and quotation marks omitted).

     At issue here is whether the Commonwealth produced sufficient

evidence to show Appellee acted with the required mens rea in connection

with the aggravated assault charge. A person is guilty of aggravated assault

if he “attempts to cause serious bodily injury to another, or causes such

injury intentionally, knowingly or recklessly under circumstances manifesting

extreme indifference to the value of human life.” 18 Pa.C.S.A. § 2702(a)(1).

As noted above, where the Commonwealth’s theory of the case for

aggravated assault is based on recklessness, the Commonwealth must show

that assailant’s recklessness rose to the level of malice.   See Kling, 731

A.2d at 147-48. Malice “comprehends not only a particular ill-will, but . . .

[also a] wickedness of disposition, hardness of heart, recklessness of

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consequences, and a mind regardless of social duty, although a particular

person may not be intended to be injured.”6        Santos, 876 A.2d at 363

(emphasis in original). In Commonwealth v. Payne, 868 A.2d 1257 (Pa.

Super. 2005), we stated:

       [U]nder our caselaw, we have extraordinarily well established
       precedent stating that if a gun discharges and the bullet strikes
       the victim, the intentional act of pointing the gun and aiming it
       at a vital part of the human body creates the presumption of
       malice. This is true regardless of whether the shooter was
       unaware the gun was loaded, regardless of whether the shooter
       only meant to “scare” the victim, regardless of whether the gun
       accidentally discharged, regardless of whether the shooter and
       victim were good friends.

Id. at 1261 (internal citations omitted).

       Here, the record shows, that Appellee “‘racked’ the firearm’s slide,

pointed the weapon in the direction of the decedent’s torso, pulled the
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6
  Based on its reading of Commonwealth v. Bruce, 916 A.2d 657 (Pa.
Super. 2007), the trial court seems to have equated “malice” with
intentional killing. In Bruce, we stated, “A defendant must display a
conscious disregard for almost certain death or injury such that it is
tantamount to an actual desire to injure or kill.” Id. at 664 (quoting Kling,
731 A.2d at 148). It should be clear, however, that desire to injure or kill is
not coterminous with intent to injure or kill. This difference is particularly
relevant in this matter. Third degree murder does not require intent to kill.
Santos, 876 A.2d at 363-64. “Indeed, our courts have consistently held
that malice is present under circumstances where a defendant did not have
an intent to kill, but nevertheless displayed a conscious disregard for “an
unjustified and extremely high risk that his actions might cause death or
serious bodily harm.” Id. at 364 (emphasis in original). Thus, the trial
court erred to the extent it interpreted Section 2702 to require the
Commonwealth to prove Appellee acted with intent to injure or kill. See
Santos, 876 A.2d at 362, 364 (disagreeing with our Court to the extent we
stated that malice involves a state of mind that is nearly equivalent to
purposeful or knowing homicide).



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handgun’s trigger, and thus shot and killed her husband.”          Trial Court

Opinion, 12/31/14, at 21 (citing, inter alia, the Commonwealth’s Pa.R.A.P.

1925(b) statement).7 This evidence is sufficient to show Appellee acted with

the required mens rea.8         See Payne, supra.   The trial court, therefore,

erred in concluding otherwise.

        The thrust of the trial court’s decision is that the Commonwealth

failed to show Appellee acted with malice, in light of the circumstances of the

case.    After conceding that “a presumption of malice can flow from a

defendant’s use of a deadly weapon to a vital part of the human body,” Trial

Court Opinion, 12/31/14, at 21 (emphasis in original), the trial court

commented as follows: “An inference of malice cannot be accepted in a

vacuum. The law infers or presumes from the use of a deadly weapon, in

the absence of circumstances of explanation or mitigation . . . .” Id.

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7
    The trial court does not have issues with the Commonwealth’s
representation of the facts. Rather, the trial court disagrees with the
Commonwealth on how the evidence should be viewed and weighed, and
ultimately, they disagree on the legal conclusions to be drawn from said
evidence.     See Trial Court Opinion, 12/31/14, at 21 (“Although
acknowledging to an appreciable extent the accuracy of this factual
recitation of the Commonwealth, this court believes even in the instant
matter’s present procedural posture such a legal argument is just overly
narrow.”).
8
  As noted above, at this stage, the inquiry is whether the Commonwealth
has made a prima facie case against Appellee. Based on our review of the
facts and the law, we concluded that the Commonwealth did make a prima
facie case against Appellee. We express no opinion as to whether the
evidence is sufficient to prove mens rea beyond a reasonable doubt.



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(quoting Commonwealth v. Seibert, 622 A.2d 361, 366 (Pa. Super. 1993)

(emphasis in original)). This statement is problematic.

       First, the procedural context of the quoted language from Seibert is

different from the procedural context of the instant matter.        Seibert dealt

with a challenge to the sufficiency of the evidence at trial.       Here, we are

dealing with sufficiency of the evidence at pre-trial proceedings.             The

standards of proof are different. See, e.g., Marti, 779 A.2d at 1180 (“[T]he

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.”). Thus, reliance

on Seibert is misplaced.

       The trial court, however, also erred for another reason. By considering

Appellee’s explanations and mitigating circumstances,9 the trial court

misapplied well-established standards requiring the court to give effect to a
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9
  For instance, the trial court, inter alia, noted: (i) Appellee did not lie to the
investigators regarding the shooting, Trial Court Opinion, 12/31/2014, at 21
n.40; (ii) victim, a firearm enthusiast, was directing the displaying of the
firearms operation; id. at 23, (iii) Appellee was a neophyte, id.; (iv)
Appellee relied on her husband’s firearm experience and proficiency, id. at
24, (v) the investigating officer stated there was no evidence suggesting
Appellee intended to harm victim, id.; (vi) Appellee did not admit she
deliberately aimed the firearm at her husband, id. at 26; and (vii) Appellee
“did not engage in assertive and purposeful actions of a threatening and/or
menacing nature directed at the victim[.]” Id. at 28. Accordingly, the trial
court concluded, “the evidence most certainly points to that of a horrific
accident,” id. at 24, which falls below the requisite standard of malice. Id.
at 29.




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reasonable inference supporting a verdict of guilt and reading the evidence

in the light most favorable to the Commonwealth.        Indeed, the trial court

here did the opposite: it drew inferences from the evidence supporting a not

guilty verdict and read the evidence in the light most favorable to the

defense. This was error. Marti, 779 A.2d at 1180 (“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.”) (citation and quotation marks

omitted).

       Similarly, by considering Appellee’s explanations and          mitigating

circumstances noted above, the trial court improperly engaged in a weight

and credibility assessment. It is well-established, however, that 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.” Id.10

       While a jury might well not find Appellee guilty of the offense charged,

it is not for us or the trial court to decide guilt at this stage. At this stage,

the Commonwealth must only present evidence to establish sufficient

probable cause Appellee committed the crime charged. Here, had the trial
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10
   Pennsylvania courts have used the terms “prima facie” and sufficient
“probable cause” interchangeably in the context of modern preliminary
hearings. Commonwealth v. Ricker, 120 A.3d 349, 355 n.1 (Pa. Super.
2015).



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court applied the correct standard and the proper definition of malice based

on the trial court’s own detailed recitation of the facts presented, see Trial

Court Opinion, 12/13/15, at 12-19, it should have denied Appellee’s motion

seeking dismissal of the aggravated assault charge. Based on the foregoing,

the order of the trial court is reversed, and the charge of aggravated assault

is reinstated.

      Order reversed. Case remanded. Jurisdiction relinquished.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/4/2016




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