J-S23040-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA              :   IN THE SUPERIOR COURT OF
                                           :        PENNSYLVANIA
                                           :
                v.                         :
                                           :
                                           :
 MARIA CRUZ                                :
                                           :
                     Appellant             :   No. 2348 EDA 2017

           Appeal from the Judgment of Sentence June 19, 2017
   In the Court of Common Pleas of Delaware County Criminal Division at
                     No(s): CP-23-CR-0007399-2016


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

MEMORANDUM BY STEVENS, P.J.E.:                           FILED MAY 29, 2018

      Appellant, Maria Cruz, appeals from the judgment of sentence entered

in the Court of Common Pleas of Delaware County, which sitting as finder of

fact in Appellant’s non-jury trial convicted her of Unauthorized Use of a Motor

Vehicle, 18 Pa.C.S. § 3928(a). Sentenced to one year of probation, Appellant

contends the court erred by not granting at the preliminary hearing her motion

to quash the bill of information for the Commonwealth’s purported failure to

make out a prima facie case against her. We affirm.

      The trial court aptly sets forth the pertinent facts and procedural history

as follows:

      On October 12, 2016, Appellant was arrested and charged with
      Unauthorized Use of a Motor Vehicle, Receiving Stolen Property,
      Theft by Deception-False Imprisonment, and Theft by Unlawful
      Taking-Movable Property.




____________________________________
* Former Justice specially assigned to the Superior Court.
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     A Preliminary Hearing was held on November 11, 2016, in front of
     the Honorable Judge Leonard V. Tenaglia in Darby, Delaware
     County. At the hearing, the Commonwealth presented evidence
     from Mr. William Wilmont and Edward Hurley. Mr. Wilmont
     testified that he is employed by Chester Pike Auto Sales in
     Delaware County, Pennsylvania. N.T. 11/23/17 at 6. Appellant
     had purchased two vehicles, a Town and Country Minivan and a
     Nissan Rogue, from the lot in Philadelphia, South Philly Auto
     Sales; both vehicles were registered to Appellant. N.T. at 9. After
     complications with the Appellant’s payment schedule, she was
     instructed to bring both vehicles back and was told that she would
     be refunded the money she had already paid for vehicles. N.T. at
     7.

     On September 7, 2016, a repossession company repossessed the
     Nissan Rogue and transported it to Chester Pike Auto Repair, in
     Delaware County. N.T. at 12. Appellant and her daughter
     eventually turned in the Minivan and Appellant’s money, in the
     amount of $5,260.00, was refunded to her. N.T. at 6-7. Appellant
     turned in a set of keys for each vehicle. N.T. at 8. The Minivan
     was transported to the lot at Chester Pike Auto Sale, located up
     the street, also in Delaware County. N.T. at 10.

     The following day, both cars were missing from the respective lots.
     N.T. at 8. Mr. Wilmont called the police to report the Minivan
     stolen from the lot. N.T. at 8.

     Mr. Hurley testified that he runs Chester Pike Auto Repair in
     Delaware County, Pennsylvania, working on repairs and towing
     vehicles. N.T. at 16, 20. On September 7, 2016, Mr. Hurley came
     to work and noticed that a Nissan Rogue, which was parked on
     the front of their lot, [and] with the keys hanging on his board,
     was missing. N.T. at 16. Mr. Hurley contacted the Sharon Hill
     Police Department to report the vehicle as stolen. N.T. at 16.

     On October 11, 2016, Mr. Hurley received a phone call from
     Chester Pike Auto Sales relaying a message that the missing
     vehicles were located in a lot in Philadelphia. Mr. Hurley drove to
     the location in Philadelphia and observed the vehicle in a private
     parking lot.     Mr. Hurley contacted the Philadelphia Police
     Department. Upon their arrival, police officers made contact with
     Appellant and her daughter. After about an hour of investigation,
     Appellant turned over keys to the Minivan to the police and began
     removing her belongings from the Minivan. N.T. at 19.

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      After the Preliminary Hearing, Appellant was bound over to the
      Court of Common Pleas on the following charges: One count of
      Unauthorized Use of a Motor Vehicle, one count of Receiving
      Stolen Property and one count of Theft by Unlawful Taking, all in
      reference to the Minivan.

      On January 19, 2017, counsel for Appellant filed a Motion to Quash
      the Information. On February 27, 2017, after a hearing and a
      review of the Notes of Testimony from the November 23, 2017,
      Preliminary Hearing, [the trial] court denied the Motion.

      After a non-jury trial conducted on June 19, 2017, Appellant was
      found guilty of Unauthorized Use of a Motor Vehicle and not guilty
      of Receiving Stolen Property and Theft by Unlawful Taking.

Trial Court Opinion, 10/2/17, at 1-3.

      Appellant filed a timely notice of appeal and, on August 15, 2017, filed

her Concise Statement of Matters Complained of on Appeal raising the

following issue:   “The Court erred in not granting [Appellant’s] Motion to

Quash the Information due to the absence of any evidence that Ms. Cruz

committed any offense in Delaware County.” Appellant’s Pa.R.A.P. 1925(b)

Statement, filed 8/15/17.

      In Appellant’s brief, she presents the following question for our review:

      DID THE TRIAL COURT ERR IN DENYING THE
      [APPELLANT’S] MOTION TO QUASH THE INFORMATION
      DUE TO THE COMMONWEALTH’S FAILURE TO MAKE A
      PRIMA FACIE CASE FOR ANY OFFENSE AT HER
      PRELIMINARY HEARING AND THE ABSENCE OF ANY
      EVIDENCE THAT MS. CRUZ COMMITTED ANY OFFENSE IN
      DELAWARE COUNTY?

Appellant’s brief at 5.

       Appellant’s issue on appeal is that the Commonwealth’s evidence at the

preliminary hearing was insufficient to establish a prima facie case as to the

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elements of the charged offenses and with respect to the offenses having

occurred in Delaware County. Appellant is not entitled to relief on this claim,

however, because, as this Court has held:

      The purpose of a preliminary hearing is to avoid the incarceration
      or trial of a defendant unless there is sufficient evidence to
      establish a crime was committed and the probability the defendant
      could be connected with the crime. Commonwealth v. Wodjak,
      502 Pa. 359, 466 A.2d 991 (1983). Its purpose is not to prove
      defendant's guilt. Once appellant has gone to trial and been found
      guilty of the crime, any defect in the preliminary hearing is
      rendered immaterial.

Commonwealth v. Tyler, 587 A.2d 326, 329 (Pa.Super. 1991) (emphasis in

original). See also Commonwealth v. Lee, 662 A.2d 645, 650 (Pa. 1995)

(holding adjudication of guilt on a charge renders moot any allegation that

Commonwealth failed to establish a prima facie case for that charge at the

preliminary hearing).

      Here, Appellant was found guilty at her non-jury trial of engaging in the

unauthorized use of a motor vehicle in Delaware County. This guilty verdict

renders immaterial and moot the defects alleged to have occurred in the

preliminary hearing. Consequently, we need not address Appellant’s issue, as

it is confined to the preliminary hearing phase of her case.

      Judgment of sentence is AFFIRMED.




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J-S23040-18




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/29/18




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