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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,               :     IN THE SUPERIOR COURT OF
                                            :           PENNSYLVANIA
                           Appellant        :
                                            :
                      v.                    :          No. 2808 EDA 2016
                                            :
CHARLES RALSTON                             :


                      Appeal from the Order, August 3, 2016,
               in the Court of Common Pleas of Philadelphia County
                Criminal Division at Nos. CP-51-CR-0008279-2012,
                             CP-51-CR-0008280-2012


BEFORE: BENDER, P.J.E., PANELLA, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                       FILED APRIL 18, 2018

        The Commonwealth appeals1 from the August 3, 2016 order quashing

the    consolidated    attempted    burglary    charges   filed   against   appellee,

Charles Ralston.2 After careful review, we vacate the order and remand for

further proceedings.

        The trial court summarized the relevant facts of this case as follows:

                    On November 11, 2011, complainant Monica
              Robinson left her home at 1521 N. 20th Street
              around 5[:]30 [p.m.] and returned around
              8:00 [p.m.] Sometime after her return she noticed
              that the first floor, rear window of her house was
              broken. She did not see or hear anyone and no

1 The Commonwealth has certified, pursuant to Pa.R.A.P. 311(d), that the
trial court’s August 3, 2016 order will terminate or substantially handicap the
prosecution.

2   The record reflects that appellee has not filed a brief in this matter.
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             entry was made into the house, nor was there
             anything missing. After finding the broken window,
             the complainant called the police.    Police Officer
             Crespo responded and assisted a fingerprint
             technician in recovering fingerprints from the
             outside, lower part of the broken double pane
             window; not the inside pane. No fingerprints were
             recovered from the glass on the ground.         The
             Commonwealth marked and moved the fingerprint
             report matching the fingerprints recovered to
             [a]ppellee.

                    Five days later, on November 16, 2011, at
             6:30 [a.m.], someone rang the complainant’s
             doorbell. Her dog started to bark and she checked
             the peephole but did not see anybody. She returned
             to her bedroom in the back of the house when the
             sensor light went off in her open, non-fenced-in
             yard. At that point the complainant saw a man
             jiggling her doorknob. She then opened her window
             and yelled at him, he quickly looked up and ran
             away. The complainant identified [a]ppellee as this
             man in court. The window was not replaced at this
             point. Complainant had bars placed on the window
             area until it could be replaced. On January 18,
             2012, two months after the incidents, based on the
             fingerprints recovered from the November 11, 2016
             incident, Detective Anderson of the Philadelphia
             Police Department, compiled a photo array
             containing the photo of [a]ppellee.    Complainant
             identified [a]ppellee as the person she observed
             outside of her door on November 16, 2011, the date
             of the second incident.

Trial court opinion, 7/31/17 at 1-2 (citations to notes of testimony omitted).

        Appellee was arrested in connection with this incident and charged

with criminal attempt – burglary, criminal attempt – criminal trespass, and

criminal mischief.3   On July 13, 2012, appellee appeared for a preliminary


3   18 Pa.C.S.A. §§ 901 (3503(a)(1) and 3502(a)) and 3304(a), respectively.


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hearing before the Honorable James M. DeLeon and was held for court on all

charges.     Following multiple continuances, appellee filed a motion to

quash/petition for writ of habeas corpus on July 30, 2016. On August 2,

2016, a hearing was held before the Honorable Roxanne E. Covington.

Thereafter, on August 3, 2016, the trial court entered an order granting

appellee’s motion, in part, and quashing the consolidated attempted burglary

charges.    The Commonwealth filed a timely appeal on August 31, 2016.

Although not ordered to do so, the Commonwealth filed a concise statement

of errors complained of on appeal, in accordance with Pa.R.A.P. 1925(b) that

same day.     The trial court filed its Pa.R.A.P. 1925(a) opinion on July 31,

2017.

        The Commonwealth argues that the trial court erred in granting

appellee’s motion to quash the consolidated attempted burglary charges.

(Commonwealth’s brief at 7, 11.)        In support of this contention, the

Commonwealth avers that the evidence at the preliminary hearing, when

“[p]roperly viewed in the light most favorable to the Commonwealth,

establish[ed] [a] prima facie case of attempted burglary[.]”      (Id.)   We

agree.

        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, 1112 (Pa.Super. 2016)

(en banc) (stating, “a pre-trial habeas corpus motion is the proper means



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for testing whether the Commonwealth has sufficient evidence to establish a

prima facie case.” (citation omitted)).          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.

      To establish a prima facie case,

            [t]he Commonwealth must show sufficient probable
            cause that the defendant committed the offense, and
            the evidence should be such that if presented at
            trial, and accepted as true, the judge would be
            warranted in allowing the case to go to the jury.

                  When deciding whether a prima facie case
            was established, we must view the evidence in the
            light most favorable to the Commonwealth, and we
            are to consider all reasonable inferences based on
            that evidence which could support a guilty verdict.
            The standard . . . does not require that the
            Commonwealth prove the [defendant’s] guilt beyond
            a reasonable doubt at this stage.

Commonwealth v. Patrick, 933 A.2d 1043, 1045 (Pa.Super. 2007)

(citations omitted), appeal denied, 940 A.2d 364 (Pa. 2007). Whether the

Commonwealth has presented sufficient evidence to establish a 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).

      Here, the trial court found that “the Commonwealth has failed to

present sufficient evidence to prove that [appellee] possessed the requisite

intent to commit a crime inside complainant’s home and thus cannot


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establish a prima facie case of [attempted] burglary.” (Trial court opinion,

7/31/17 at 5.) The trial court reasoned that “there is no per se assumption

that [evidence of a forced entry alone] automatically gives rise to a sufficient

inference of intent to commit a crime inside.” (Id. at 4.)

      In reaching this conclusion, the trial court relied on our supreme

court’s decision in Commonwealth v. Wilamowski, 633 A.2d 141 (Pa.

1993).    Wilamowski involved a          defendant who       was convicted of,

inter alia, attempted burglary after he kicked in a complainant’s garage

door and tore it off its hinges before simply walking away from the scene.

Id. at 142. The Wilamowski court found that the evidence was insufficient

to convict the defendant of attempted burglary, reasoning that the

Commonwealth must establish additional evidence of specific intent to

commit a crime within occupied structure “that goes beyond the mere

breaking in of a door or window.”       Id. at 144.     The Wilamowski court

stated:

            Although the Commonwealth’s facts prove that [the
            defendant] kicked at the door and tore it off of its
            hinges, there was no additional evidence to establish
            that he possessed an intent to commit a crime
            inside. He broke the door and apparently walked
            away from it without any showing that he entered
            the structure or attempted to enter. His path into
            the structure was now unobstructed, but he chose to
            walk away and go to the neighbor’s house to ask for
            directions. Evidence of [the defendant’s] subsequent
            actions in flight is also insufficient, standing alone, to
            lend any support to a permissible inference of intent
            to commit a crime inside since the flight is consistent



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            with his efforts to avoid apprehension for his conduct
            of breaking down the door.

Id.

      In Commonwealth v. Alston, 651 A.2d 1092 (Pa. 1994), our

supreme court made the following observations about its holding in

Wilamowski:

            In Wilamowski, . . . we discussed circumstantial
            proof of the intent element in situations involving
            attempted burglary. There, we found unacceptable a
            per se assumption that evidence of a forced opening
            into an occupied structure automatically gives rise to
            an inference of intent to commit a crime inside. We
            held that a “totality of the circumstances” approach
            is   more     appropriate    when    evaluating    the
            Commonwealth’s evidence supporting the intent
            element.    We then held that more than merely
            breaking a door or window is required to support an
            inference of intent to commit a crime inside.

Alston, 651 A.2d at 1094 (footnote and emphasis omitted; internal

quotation marks in original).

      Viewing the evidence and reasonable inferences derived therefrom in a

light most favorable to the Commonwealth, we find that the Commonwealth

has set forth a prima facie case of attempted burglary in this matter. “A

person is guilty of burglary if he enters a building or occupied structure, or

separately secured or occupied portion thereof, with intent to commit a

crime therein, unless the premises are at the time open to the public or the

actor is licensed or privileged to enter.” 18 Pa.C.S.A. § 3502(a). “A person

commits an attempt when, with intent to commit a specific crime, he does



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any act which constitutes a substantial step toward the commission of that

crime.” 18 Pa.C.S.A. § 901(a).    The specific intent necessary for burglary

“may be proved by direct evidence or inferred from circumstantial evidence”

surrounding the entry. Commonwealth v. Galindes, 786 A.2d 1004, 1010

(Pa.Super. 2001) (citations omitted), appeal denied, 803 A.2d 733 (Pa.

2002). Moreover, “the Commonwealth is not required to specify what crime

a defendant, who is charged with burglary (or attempted burglary), was

intending to commit.”    Commonwealth v. Brown, 886 A.2d 256, 260

(Pa.Super. 2005) (citation omitted), appeal denied, 902 A.2d 969 (Pa.

2006).

     Instantly, we find that the evidence presented at the July 13, 2012

preliminary hearing established a prima facie case that appellee intended

to both unlawfully enter complainant’s residence and commit a crime

therein. Specifically, Monica Robinson (hereinafter, “complainant”) testified

that on November 11, 2011, she returned home at approximately 8:00 p.m.

and discovered that a first-floor, rear window of her home had been broken.

(Notes of testimony, 7/13/12 at 4-5.) Complainant subsequently called the

police following this incident, who lifted appellee’s fingerprints from the

“lower bottom part of the glass” of the broken window. (Id. at 12-13). The

evidence further established that the window in question was a double pane

window and did not break all the way through. (Id. at 13.) Complainant

testified that she had bars put up that day until the window company could



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come out and fix the damage. (Id. at 9-10.) Complainant further testified

that although her backyard where this window is located is not fenced-in,

“there’s no street in [her] back yard” and it is essentially fenced-in on three

sides because “[her] neighbor behind [her] has a fence.” (Id. at 10.)

         The evidence presented at the preliminary hearing further established

that appellee returned to complainant’s house five days later and once again

attempted to gain entry.          Specifically, complainant testified that at

approximately 6:30 a.m. on the morning of November 16, 2011, her front

doorbell rang, but she could not see anyone through the peephole. (Id. at

6, 8.)     Complainant testified that after she returned to her second-floor

bedroom, she noticed that her backyard motion-sensor lights were activated

and spotted appellee looking in her lower window and jiggling the rear

doorknob to her home. (Id.) Appellee fled after complainant screamed at

him from her second-floor window.         (Id. at 7, 9.)   At the preliminary

hearing, complainant identified appellee as the individual who was in her

backyard on November 16, 2011, and further testified that she had never

seen appellee prior to that date and never gave him permission to enter her

residence. (Id. at 8.) Complainant later identified appellee in a police photo

array. (See notes of testimony, 8/2/16 at 4-5.)

         Additionally, we find that Wilamowski is distinguishable from the

instant matter.     In contrast to Wilamowski, where the defendant simply

walked away from the damaged garage door “without any showing that he



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. . . attempted to enter[,]” see Wilamowski, 633 A.2d at 142, 144, one

could reasonably infer in the case sub judice that appellee fled the

complainant’s residence before entering it, not because he had no intent to

enter it, but because he had been discovered by complainant attempting to

gain entry. (See notes of testimony, 7/13/12 at 6-8.) Furthermore, unlike

the isolated incident in Wilamowski, here appellee’s combined acts of

breaking a window, returning to the same home less than a week later at an

early morning hour, and jiggling a rear doorknob after ringing the front

doorbell to see if anyone was home were indicative of his intent to commit a

crime therein.

      Based on the totality of these circumstances, and examining these

incidents contemporaneously, we find that the Commonwealth set forth a

prima facie case of attempted burglary in this case. See, e.g., Dantzler,

135 A.3d at 1114 (noting that, “a prima facie case is a low threshold of

proof[.]”). Accordingly, the trial court’s August 3, 2016 order quashing the

consolidated attempted burglary charges was in error.

      Order vacated. Case remanded for further proceedings.      Jurisdiction

relinquished.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary




Date: 4/18/18




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