J-S23012-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                IN THE SUPERIOR COURT OF
                                                   PENNSYLVANIA
                         Appellant

                  v.

TANAYIA BINGHAM,

                         Appellee                No. 3033 EDA 2016


                Appeal from the Order September 7, 2016
           In the Court of Common Pleas of Philadelphia County
           Criminal Division at No(s): CP-51-CR-0006467-2016

BEFORE: OLSON, SOLANO, and MUSMANNO, JJ.

MEMORANDUM BY OLSON, J.:                          FILED APRIL 21, 2017

     The Commonwealth of Pennsylvania filed an interlocutory appeal from

the order entered on September 7, 2016 quashing a robbery charge filed

against Tanayia Bingham (“Appellee”).1 We reverse.

     The facts presented at the preliminary hearing are as follows.    At

approximately 2:25 p.m. on May 30, 2016, the manager of Sally Beauty

Supply observed Appellee and another woman in the store.    The manager

recognized the two women from their prior visits to the store.   When the

manager asked Appellee if she needed help, an argument ensued and the

manager told Appellee that if she continued to behave in that manner she

could leave the store.    At that time, the woman Appellee was with told

1
   In its notice of appeal, the Commonwealth certified that the order
terminated or substantially handicapped the prosecution. See Pa.R.A.P.
311(d).
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Appellee “let’s go.” The women proceeded to leave the store with two flat

irons and a curling iron without paying for the items.      As the manager

followed Appellee and the other woman, Appellee stopped, repeatedly

punched the manager in the face, and threated to deploy mace. During this

physical altercation, Appellee dropped one of the flat irons.       When an

employee intervened, Appellee took another flat iron and departed the store.

        The procedural history of this case is as follows. On June 16, 2016,

the Commonwealth charged Appellee via criminal complaint with robbery,2

conspiracy,3 receiving stolen property,4 making terroristic threats,5 theft by

unlawful taking,6 simple assault,7 recklessly endangering another person,8

and retail theft.9 On July 5, 2016, a preliminary hearing was held before the

Municipal Court of Philadelphia. At the conclusion of that hearing, Appellee

was held for court on all charges except conspiracy.




2
    18 Pa.C.S.A. § 3701(a)(1)(iv).
3
    18 Pa.C.S.A. § 903(c).
4
    18 Pa.C.S.A. § 3925(a).
5
    18 Pa.C.S.A. § 2706(a)(1).
6
    18 Pa.C.S.A. § 3921(a).
7
    18 Pa.C.S.A. § 2701(a).
8
    18 Pa.C.S.A. § 2705.
9
    18 Pa.C.S.A. § 3929(a)(1).



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     On July 11, 2016, the Commonwealth charged Appellee via criminal

information with the seven charges that were held for court. On August 9,

2016, Appellee filed a motion to quash the criminal information.              On

September 7, 2016, the trial court heard argument on the motion to quash.

During argument, Appellee confined her quashal motion to the robbery

charge.   At the conclusion of the argument, the trial court quashed the

robbery charge. This timely appeal followed.10

     The Commonwealth presents one issue for our review:

     Did the [trial] court err in quashing the robbery charge despite
     sufficient evidence for a prima facie case?

Commonwealth’s Brief at 4.

     In its lone issue, the Commonwealth argues that the trial court erred

in quashing the criminal information in this case.          A motion to quash a

criminal information is the equivalent in Philadelphia County to a pre-trial

petition for a writ of habeas corpus.      Commonwealth v. Dantzler, 135

A.3d 1109, 1111 (Pa. Super. 2016) (en banc). A motion to quash should be

granted when, “examining the evidence and reasonable inferences derived

therefrom   in   a   light   most   favorable   to   the   Commonwealth[,]”   the

Commonwealth fails to set forth a prima facie case of guilt. Id. (citations


10
   On September 26, 2016, the Commonwealth filed a concise statement of
errors complained of on appeal (“concise statement”).    See Pa.R.A.P.
1925(b). On October 24, 2016, the trial court issued its Rule 1925(a)
opinion. The Commonwealth’s lone appellate issue was included in its
concise statement.



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omitted).   “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.” Commonwealth v. Huggins, 836 A.2d 862, 866

(Pa. 2003) (citation omitted). “[T]he 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.” Commonwealth v.

Karetny, 880 A.2d 505, 513 (Pa. 2005) (citation omitted).11

      “A person is guilty of robbery if, in the course of committing a theft,

[s]he . . . inflicts bodily injury upon another or threatens another with or

intentionally puts [her] in fear of immediate bodily injury.”    18 Pa.C.S.A.

§ 3701(a)(1)(iv).   In this case, the evidence presented at the preliminary

hearing undisputedly provided probable cause that Appellee committed a

theft from Sally Beauty Supply.      The two elements in dispute are (1)

whether the evidence provided probable cause that Appellee inflicted bodily

injury upon the manager or threated the manager with immediate bodily

injury and, if so, (2) whether the evidence provided probable cause that

Appellee did so during the course of committing the theft.




11
  Appellee cites Commonwealth v. Weigle, 949 A.2d 899, 902 (Pa. Super.
2008), aff’d, 997 A.2d 306 (Pa. 2010), in support of her argument that we
should review the trial court’s order quashing the criminal information for an
abuse of discretion. This portion of Weigle, however, was abrogated by
Dantzler. See Dantzler, 135 A.3d at 1112 (citation omitted).



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      We conclude the evidence presented at the preliminary hearing

provided probable cause that Appellee’s threat to use mace intentionally put

the manager in fear of immediate bodily injury.       As this Court recently

explained, “[m]ace is a type of pepper spray that is commonly used as a

self-defense agent.” Commonwealth v. Chambers, 2017 WL 900006, *6

(Pa. Super. Mar. 7, 2017) (footnote omitted).          Moreover, this Court

recognized that, in circumstances similar to those in the case sub judice,

mace is “an instrument which is likely to cause serious bodily injury.” Id. at

*7 (citation omitted).

      Whether an individual is placed in fear of immediate bodily injury is an

objective inquiry and the victim’s “subjective state of mind during the

robbery is not dispositive.” Commonwealth v. Valentine, 101 A.3d 801,

807 (Pa. Super. 2014), appeal denied, 124 A.3d 309 (Pa. 2015) (citation

omitted).   A reasonable person would fear immediate bodily injury when

threatened with mace.12 Therefore, viewing the evidence in the light most




12
   Appellee’s second threat similarly put the manager in fear of immediate
bodily injury. Specifically, after punching the manager three or four times in
the face, Appellee told the manager, “Bitch I’m not done with you yet.”
N.T., 7/5/16, at 11. A reasonable person would fear immediate bodily injury
if a person, who just punching them in the face, used profanity and
threatened to inflict more harm.




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favorable to the Commonwealth, Appellee’s threat to use mace put the

manager in fear of immediate bodily injury.13

      We next turn to whether the evidence provided probable cause that

Appellee placed the manager in fear of immediate bodily injury during the

course of a theft. “An act shall be deemed ‘in the course of committing a

theft’ if it occurs in an attempt to commit theft or in flight after the attempt

or commission.” 18 Pa.C.S.A. § 3701(a)(2). Appellee’s argument that the

physical altercation occurred after the theft was completed views the

evidence in the light most favorable to her.        Viewed in the light most

favorable to the Commonwealth, the evidence presented at the preliminary

hearing showed that Appellee threated to mace the manager while she was

fleeing from the theft.   Moreover, Appellee made her second threat while

taking the last flat iron from the store. Thus, the evidence presented at the

preliminary hearing was sufficient to demonstrate probable cause that

Appellee committed a robbery and the trial court erred by quashing the

criminal information.


13
   The Commonwealth argues that it also established a prima facie case that
Appellee caused bodily injury to the manager when Appellee repeatedly
punched the manager in the face.          “Bodily injury” is defined as
“[i]mpairment of physical condition or substantial pain.”    18 Pa.C.S.A.
§ 2301. In this case, there was no evidence presented at the preliminary
hearing that the manager suffered impairment of physical condition.
Moreover, when asked if she suffered any pain as a result of the punches,
she responded “No.” N.T., 7/5/16, at 14. Therefore, the Commonwealth did
not prove a prima facie case that Appellee caused bodily injury to the
manager.



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     Order reversed. Case remanded. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/21/2017




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