J-A03001-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA              :    IN THE SUPERIOR COURT OF
                                           :         PENNSYLVANIA
                    Appellant              :
                                           :
                                           :
              v.                           :
                                           :
                                           :
 LONNIE MONK                               :    No. 1048 WDA 2017

                    Appeal from the Order June 20, 2017
   In the Court of Common Pleas of Allegheny County Criminal Division at
                      No(s): CP-02-CR-0014804-2016


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

MEMORANDUM BY BOWES, J.:                                 FILED JUNE 11, 2019

      The Commonwealth appeals from the June 20, 2017 order granting

Appellee Lonnie Monk’s habeas corpus motion upon finding insufficient

evidence to create a prima facie case of criminal homicide. We reverse and

remand for further proceedings.

      On October 24, 2014, at approximately 1:40 a.m., Ronnell Smith was

shot five times and killed while sitting in the driver’s seat of his vehicle, in a

parking lot on Steuben Street in Pittsburgh’s West End.         N.T. Preliminary

Hearing, 12/16/16, at 4, 6-7. Police secured and processed the crime scene,

collecting four forty-caliber casings and two nine-millimeter casings from the

area surrounding the victim’s vehicle. Id. at 7-8.

      City of Pittsburgh homicide detective Judd Emery responded to the

scene approximately six hours after the shooting. Id. at 7. Detective Emery

viewed video footage recovered from three nearby businesses, which showed

____________________________________
* Retired Senior Judge assigned to the Superior Court.
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muzzle flashes, followed by two individuals running down Steuben Street,

turning onto a side street, and climbing a six-foot-high fence before jumping

into Saw Mill Run Creek. Id. at 8. Although no one could be identified based

on the video alone, officers were able to determine that one suspect was a

six-foot-tall African-American man of slender build with short hair, while the

other was a stockier individual with long dreadlocks. Id. at 10-11, 23-27.

      Within an hour of arriving at the scene, Detective Emery went to the

location where the two suspects had been seen scaling the fence. Id. at 11,

27. Detective Emery discovered a forty-caliber Smith & Wesson pistol in the

creek, just below the area where the individuals had gone over the fence. Id.

at 11-12. Approximately one-hundred yards away, but along the same flight

path, another detective found a drop of blood and a magazine belonging to a

firearm. Id. at 12-13. The blood was found on a two-foot-high ledge that

could be used to assist someone attempting to extricate himself from the

creek. Id. 12, 31. Although Detective Emery did not know how long the blood

had been there, he testified that it rained each of the three days prior to the

date in question. Id. at 31.

      Appellee stipulated that the projectiles recovered from the victim’s body

during the autopsy matched the forty-caliber firearm found in the creek. Id.

at 5-6. Additionally, the blood sample matched the DNA profile of Appellee.

Id. at 13. Finally, Appellee fit the physical description of the taller, thinner

male with short hair depicted in the video. Id. at 14.




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      On October 12, 2016, Appellee was charged with homicide, criminal

conspiracy, and person not to possess a firearm, arising from the fatal

shooting. At the December 16, 2016 preliminary hearing, the homicide and

conspiracy charges were bound over for court. The person-not-to-possess

charge was dismissed.

      On June 2, 2017, Appellee filed a petition for writ of habeas corpus in

which he argued that the charges should be dismissed because a prima facie

case had not been demonstrated, since no witness had positively identified

him as the perpetrator. Following a June 19, 2017 hearing on this petition,

the trial court granted it by written order. This appeal followed.

      On appeal, the question presented is “whether the evidence presented

by the Commonwealth at the [A]ppellee’s preliminary hearing established a

prima facie case of criminal homicide against the [A]ppellee such that the trial

court abused its discretion in granting his petition for writ of habeas corpus?”

Commonwealth’s brief at 4.

      We consider the Commonwealth’s question mindful of the following

principles. “It is well-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.” Commonwealth v.

Hilliard, 172 A.3d 5, 12 (Pa.Super. 2017) (citation and internal quotation

marks omitted). “[T]he 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

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elements of a charged crime.” Commonwealth v. Karetny, 880 A.2d 505,

513 (Pa. 2005). Therefore, we are not bound by the legal determinations of

the trial court and our standard of review is de novo. Id.

     We review a decision to grant a pre-trial petition for a writ of habeas

corpus by examining the evidence and reasonable inferences derived

therefrom in a light most favorable to the Commonwealth. Commonwealth

v. Starry, 196 A.3d 649, 656 (Pa.Super. 2018).       Our Supreme Court has

described the Commonwealth’s burden as follows.

     At the preliminary hearing stage of a criminal prosecution, the
     Commonwealth need not prove the defendant’s guilt beyond a
     reasonable doubt, but rather, must merely put forth sufficient
     evidence to establish a prima facie case of guilt. A prima facie
     case exists when the Commonwealth produces evidence of each
     of the material elements of the crime charged and establishes
     probable cause to warrant the belief that the accused committed
     the offense. Furthermore, the evidence need only be such that, if
     presented at trial and accepted as true, the judge would be
     warranted in permitting the case to be decided by the jury.

Commonwealth v. Karetny, 880 A.2d 505, 513-14 (Pa. 2005) (citations

omitted, emphasis added).

     Pursuant to 18 Pa.C.S. § 2501(a), “a person is guilty of criminal

homicide if he intentionally, knowingly, recklessly or negligently causes the

death of another human being.” Importantly, the Commonwealth needs to

establish “probable cause to warrant the belief that the accused committed

the offense.” Commonwealth v. Weigle, 997 A.2d 306, 311 (Pa. 2010).

     The trial court found that the Commonwealth did not meet its burden to

prove a prima facie case, because its only evidence connecting Appellee to the

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crime was a blood spot found nearby that had been there for an unknown

amount of time. Trial Court Opinion, 6/26/18, at 6. We disagree with its

conclusion    and   its   overall    characterization   of   the   strength     of   the

Commonwealth’s evidence.

      The Commonwealth’s evidence in support of a prima facie case herein

is akin to the proof we previously found sufficient to uphold a conviction in

Commonwealth v. Scott, 146 A.3d 775 (Pa.Super. 2016). In Scott, the

defendant was identified as the perpetrator of a burglary of a school after his

DNA was found on a cigarette butt underneath a window at the school. His

appearance resembled an individual seen smoking a cigarette before breaking

into the school in surveillance footage.         Id. at 776-77.      On appeal, the

defendant argued that the identification evidence was insufficient because no

one could identify him in the video footage, no fingerprints connected him to

the crimes, and his mother provided an innocent explanation for why his

cigarette would have been found at the school. Id. at 778. We disagreed,

concluding that the evidence supported the fact finder’s determination. Id.

at 778.

      Here, as in Scott, the Commonwealth presented DNA evidence that

placed Appellee at the scene, along with surveillance footage depicting the

assailants,   one   of    whom      Appellee   resembled.      The   fact     that   the

Commonwealth could not provide evidence of the precise time that the blood




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was deposited does not necessitate a finding that the Commonwealth did not

establish a prima facie case of Appellee’s guilt.

      Detective Emery testified that it had rained each of the three days

preceding the murder, strongly suggesting that the blood had been recently

deposited. N.T. Preliminary Hearing, 12/16/16, at 31. Notably, Appellee’s

DNA was found within one-hundred yards of the murder weapon. In contrast

to Scott, there was no testimony offering a plausible reason why Appellee’s

blood would have been found on the flight path.        If a jury accepted the

Commonwealth’s circumstantial evidence, it could reasonably conclude that

Appellee dropped the murder weapon and left behind a drop of his blood while

fleeing after he shot and killed the victim. Therefore, considering the evidence

in the light most favorable to the Commonwealth, as we must, we hold that

the trial court erred in ruling that the Commonwealth did not establish a prima

facie case of Appellee’s guilt as to the criminal homicide charge.

      Order reversed. Case remanded for further proceedings. Jurisdiction

relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/11/2019



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