J-S17029-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                          IN THE SUPERIOR COURT OF
                                                            PENNSYLVANIA
                            Appellant

                       v.

ERIC C. PICKENS

                            Appellee                          No. 2532 EDA 2016


                   Appeal from the Order Entered July 18, 2016
              In the Court of Common Pleas of Philadelphia County
                Criminal Division at No: MC-51-CR-0010578-2016


BEFORE: OLSON, STABILE, and MUSMANNO, JJ.

MEMORANDUM BY STABILE, J.:                                      FILED MAY 24, 2017

       The Commonwealth appeals from the July 18, 2016 order entered in

the   Court    of   Common       Pleas    of   Philadelphia    County,   denying   the

Commonwealth’s motion to refile charges against Appellee, Eric C. Pickens

(“Pickens”). Following review, we vacate and remand.

       Pickens was arrested and charged with firearms violations, terroristic

threats, simple assault, and recklessly endangering another person (“REAP”)

following an April 13, 2016 incident between Pickens and his neighbor, the

complainant, Luis Ayala (“Ayala”).1 At an April 28, 2016 preliminary hearing

____________________________________________


1
  18 Pa.C.S.A. §§ 6106(a)(1) (firearms not to be carried without a license);
6108 (carrying firearms on public streets or public property in Philadelphia);
2706(a)(1) (terroristic threats); 2701(a)(1) (simple assault); and 2705
(REAP).
J-S17029-17


before the Honorable Marvin L. Williams, Ayala testified that he was

changing a tire on his van when Pickens approached him, pointed a gun at

him, and said he would “smoke” Ayala if Ayala ever touched his car again.

N.T., 4/28/16, at 4-7. Ayala called the police to report the incident as soon

as Pickens walked away. Id. at 13.

       In the course of Ayala’s cross-examination, Pickens’ counsel advised

Judge Williams that Pickens was a security guard.      Id. at 10.   When the

Judge asked if Pickens had a license to carry, his counsel responded, “I’m

sorry, a CA. I believe it’s in the --.” Id. at 11. The prosecutor interjected,

“Act 235 card, but that is not a license to carry.”         Id.2    The Judge

acknowledged that such a card would permit the cardholder to carry his gun

“straight home, straight to work.” Id. at 10-11.

       The Commonwealth’s second and final witness was the detective who

executed a search warrant on Pickens’ residence.       The detective testified

that he secured a gun from Pickens’ residence but the gun was not loaded

and no magazine or ammunition was found in the residence. Id. at 16-20.

At the conclusion of the hearing, Judge Williams dismissed all charges



____________________________________________


2
  See Lethal Weapons Training Act, 22 P.S. § 41 et seq. “The back of the
Act 235 card indicates that the card is not a license to carry a lethal weapon,
but the card needs to be carried by an individual to whom it is issued while
armed with a lethal weapon and while on duty or going to and from duty.”
Commonwealth v. Mitchell, 81 Pa. D. & C.4th 75 (Montgomery Co. 2007).



                                           -2-
J-S17029-17


against Pickens without stating a reason for his ruling on the record. Id. at

21.

      The Commonwealth filed a motion to refile the charges. A hearing on

the motion was held on July 18, 2016 before the Honorable Tracy Brandeis-

Roman.    The prosecutor explained that the issue in the case was whether

Pickens, with an Act 235 card, “was permitted to have his firearm on the

streets of Philadelphia at the time that he had pointed the firearm and

ma[de] threats towards his neighbor, the complaining witness in this case.”

N.T., 7/18/16, at 4.     At the conclusion of the hearing, Judge Brandeis-

Roman denied the Commonwealth’s request to refile, believing she did not

have the ability to overturn Judge Williams’ ruling because they were based

on his credibility determinations relating to the complaining witness. Id. at

12-14. This timely appeal followed.

      In its Rule 1925(b) statement of errors complained of on appeal, the

Commonwealth posited, “[T]he lower court erred in refusing to allow refiling

of charges, on the basis of insufficient evidence for a prima facie case, where

a witness testified at the preliminary hearing that [Pickens] pointed a

handgun at him and threatened to shoot him.”        Rule 1925(b) Statement,

8/4/16, at 1.      In response, Judge Brandeis-Roman filed a Rule 1925(a)

opinion stating,

             On    appeal, the Commonwealth asserts that this [c]ourt
      erred in    affirming the dismissal of charges, where a witness
      testified   at the preliminary hearing that [Pickens] pointed a
      handgun     at him and threatened to shoot him. Upon further

                                      -3-
J-S17029-17


       consideration and review of the record, it is this [c]ourt’s opinion
       that the facts set forth in the record demonstrate that the
       Commonwealth has met its burden, and the charges should be
       refiled.

             At the preliminary hearing, evidence was presented that
       was sufficient to establish a prima facie case on all charges. The
       complaining witness did testify that [Pickens] pointed a gun at
       him and threatened him. (See, N.T. April 28, 2016, at pp. 5-6.)1
       This testimony was sufficient to demonstrate a prima facie case,
       thus satisfying the Commonwealth’s threshold burden. This
       [c]ourt had believed that the basis for the dismissal of charges
       at the preliminary hearing was a matter of credibility, and that
       such a finding could not be overturned. However, upon further
       review, this [c]ourt has now correctly concluded that credibility
       determinations for preliminary hearings are not applicable.
       1
         While there may be several trial issues with respect to the
       alleged firearms violations, including potential affirmative
       defenses to these charges, such issues are not properly before
       this [c]ourt at this time.

Rule   1925(a)    Opinion,   9/28/16,   at    1-2   (citing   Commonwealth    v.

McCullough, 86 A.3d 901 (2014) (credibility is not a factor in determining

whether Commonwealth has established prima facie case at preliminary

hearing)).

       The Commonwealth presents a single issue on appeal:

       Did the lower court err in denying the refiling of the charges
       against [Pickens] on the basis of insufficient evidence for a prima
       facie case, where the Commonwealth established at the
       preliminary hearing that [Pickens] pointed a gun at the victim
       and threatened to shoot him?

Commonwealth Brief at 4.

       “[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


                                        -4-
J-S17029-17


appellate court’s review is plenary.” Commonwealth v. Karetny, 880 A.2d

505, 513 (Pa. 2005).

      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.

Id. at 513-14 (citations omitted).   “In determining the presence or absence

of a prima facie case, inferences reasonably drawn from the evidence of

record that would support a verdict of guilty are to be given effect, but

suspicion and conjecture are not evidence and are unacceptable as such.”

Commonwealth v. Packard, 767 A.2d 1068, 1071 (Pa. Super. 2001)

(citation omitted).

      The Commonwealth asks us to reverse the trial court’s order in light of

that court’s acknowledgement that credibility determinations are not

appropriate at the preliminary hearing stage and its concession that the

evidence was sufficient to establish a prima facie case of the crimes charged.

Pickens, in response, does not contest the conclusion that credibility is not a

factor at the preliminary hearing stage. Further, Pickens does not argue that

the evidence was insufficient to establish a prima facie case on two charges:




                                     -5-
J-S17029-17


carrying firearms on Philadelphia streets and simple assault. 3 Pickens does

assert the evidence was insufficient to support the remaining charges of

firearms not to be carried without a license, terroristic threats, and REAP.

       Regarding the charge of carrying a firearm without a license, as the

Commonwealth recognizes, Pickens “admitted through his counsel that he

only had an ‘Act 235’ card, not a license.” Commonwealth Reply Brief at 6

(citing N.T., 4/28/16, at 10-11). Therefore, the evidence was sufficient to

establish a prima facie case that Pickens carried his gun without a license.

Id. (citing Commonwealth v. McBride, 595 A.2d 589, 592 (Pa. 1991)

(Commonwealth’s use of evidentiary inference to establish prima facie

element of crime was proper).             See also Packard, 767 A.2d at 1071

(inferences reasonably drawn from the evidence of record may be given

effect if they would support a verdict of guilty). The fact counsel was asked

if Pickens was licensed to carry and acknowledged in response that he had

an Act 235 card, which is not a license to carry, supports the inference

Pickens did not have a license to carry.          Therefore, we agree with the



____________________________________________


3
  In light of Pickens’ apparent concession that the evidence was sufficient to
establish a prima facie case of firearms on the streets of Philadelphia and
simple assault, we simply note our conclusion that evidence from the
preliminary hearing was sufficient to show that Pickens was on the
streets/sidewalks of Philadelphia when he pointed his gun at Ayala (18
Pa.C.S.A. § 6108) and that he attempted to cause bodily injury to Ayala (18
Pa.C.S.A. § 2701(a)).



                                           -6-
J-S17029-17


Commonwealth that the evidence was sufficient to establish a prima facie

case of carrying a firearm without a license.

       Pickens also contends the evidence was insufficient to support a prima

facie case for terroristic threats under 18 Pa.C.S.A. § 2701(a)(1), which

provides that “[a] person commits the crime of terroristic threats if the

person communicates, either directly or indirectly, a threat to [] commit any

crime of violence with intent to terrorize another[.]”   Here, Ayala testified

that Pickens pulled a gun from his waistband, pointed it at his torso and

knees from approximately two and a half feet away, and said he would

“smoke” Ayala if he ever touched his car again. N.T., 4/28/16, at 5-6. We

agree with the Commonwealth that Pickens’ verbal threat made while

pointing a gun at Ayala at short range was sufficient to establish a prima

facie case of terroristic threats. See, e.g., Commonwealth v. McCalman,

795 A.2d 412, 418 (Pa. Super. 2002) (defendant’s use offensive language in

conjunction with pointing a gun sufficient to support terroristic threats

charge).4

       Pickens also argues that the evidence was insufficient to support a

prima facie case of REAP. A person commits REAP “if he recklessly engages

in conduct which places or may place another person in danger of death or
____________________________________________


4
  Pickens contends that the gun located at his residence was not loaded. We
see no significance in this fact as it does have any bearing on whether it was
loaded at the time Pickens threatened Ayala or whether Pickens’ conduct
was sufficient to establish a prima facie case of terroristic threats.



                                           -7-
J-S17029-17


serious bodily injury.” 18 Pa.C.S.A. § 2705. Pickens claims that his gun was

not loaded when it was located in his residence so it must have been

unloaded when he pointed it at Ayala. The fact the gun was unloaded at a

later time is irrelevant and, again, the court may give effect to reasonable

inferences to infer the existence of crucial elements, even in absence of

direct evidence. See also Packard, 767 A.2d at 1071; McBride, 595 A.2d

at 592. We find the evidence was sufficient to support a prima facie case of

REAP.

        We conclude the evidence was sufficient to support a prima facie case

of all crimes charged. Therefore, we vacate the trial court’s July 18, 2016

order and remand for further proceedings consistent with this Memorandum.

        Order vacated. Case remanded. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/24/2017




                                     -8-
