J-A18007-18

                                  2018 PA Super 314

    COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT
                                                         OF PENNSYLVANIA
                             Appellant

                        v.

    SOTHORN OUCH

                             Appellee                   No. 2624 EDA 2017


                  Appeal from the Order Entered July 25, 2017
              In the Court of Common Pleas of Philadelphia County
               Criminal Division at No.: CP-51-CR-0003807-2017


BEFORE: STABILE, J., STEVENS, P.J.E.*, and STRASSBURGER, J.**

OPINION BY STABILE, J.:                          FILED NOVEMBER 27, 2018

        The Commonwealth appeals from the July 25, 2017 order entered in the

Court of Common Pleas of Philadelphia County (“trial court”), which affirmed

the dismissal of the charge of robbery in the first degree against Appellee

Sothorn Ouch and denied the Commonwealth permission to refile the charge.

Upon review, we reverse and remand.

        On March 12, 2017, Detective Nicholas Martella, Philadelphia Police

Department, charged Appellee with robbery, graded as a first-degree felony,

persons not to possess firearms, firearms not to be carried without a license,

carrying firearms on public streets in Philadelphia, retail theft and recklessly



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*   Former Justice specially assigned to the Superior Court.
**   Retired Senior Judge assigned to the Superior Court.
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endangering another person.1          Detective Martella stated in the affidavit of

probable cause accompanying the complaint:

       On Sunday, March 5, 2017, 3:37 PM, 1122 Washington Avenue,
       P/O Butterline #1362 responded to a radio call for a robbery in
       progress inside the Hung Vuong Market.           Upon arrival the
       complaint (HN 45/A/M) and a witness, uniformed security officer
       (RB 62/B/M) both stated an Asian male described as 5’6 150
       pounds in his 20s or 30s wearing a gray Phillies hat, gray hooded
       sweatshirt with white design on the front was attempting to
       shoplift seafood merchandise. When he was stopped in the
       doorway, he attempted to pull a firearm from his waistband. (RB)
       smacked his hand away and the offender fled the parking lot in a
       newer model white Toyota Corolla, last 4 digits on the license plate
       from an unknown state are 3751.

        ....

       South Detective Intelligence Officer Chris Lai who stated in
       summary that he viewed the video of the above incident and
       immediately recognized the offender as [Appellee], who he’s
       known for over 20 years and has come into contact with him in
       South Philadelphia numerous times.

Affidavit of Probable Cause, 3/12/17. In summary, Detective Martella alleged

that, “in the course of committing a theft, [Appellee] threatened or

intentionally put another in fear of serious injury by approaching the [victim]

and producing a firearm he is prohibited from carrying due to a prior

disqualifying felony conviction.” Criminal Complaint, 3/12/17.

       On May 2, 2017, the municipal court conducted a preliminary hearing,

at which the Commonwealth offered the testimony of Richard Brooks (or RB),

a security officer at a Vietnamese supermarket located at 1122 Washington

Avenue, Philadelphia. N.T. Hearing, 5/2/17, at 4-5. Mr. Brooks testified that,

on March 5, 2017, at approximately 3:30 p.m., he stopped an “[a]sian guy,”
____________________________________________


118 Pa.C.S.A. §§ 3701(a)(1), 6105(a)(1), 6106(a)(1), 6108, 3929(a)(1), and
2705, respectively.

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whom he described as being 5’5” tall and wearing a gray shirt, hat, sneakers

and blue jeans, on suspicion of shoplifting shrimp and lobster.      Id. at 6.

Specifically, Mr. Brooks testified that he, at the direction of his manager who

was standing next to him, grabbed the suspect, later identified as Appellee

Sothorn Ouch, near the front doors past the registers.       Id. at 7-8.   The

Commonwealth thereafter played a video of the incident for Mr. Brooks.

      Q. Now, Mr. Brooks, if you can show, when [Appellee] made this
      motion toward his waistband what did you do?
      A. Pushed back off. And then [Appellee] ran out the store.
      Because he reached for a gun so I said, I told the [manager], “we
      ain’t dying for this.” Pushed his hand away and he runs out the
      door.

Id. at 9.

      On cross-examination, Mr. Brooks acknowledged that the manager

instructed him to stop Appellee at the door. Id. at 12. He also acknowledged

that, although he saw Appellee “reach for something,” he did not know what

it was. Id. at 13. Mr. Brooks further conceded that when Appellee reached

for his waist, he did not know what Appellee was reaching for because he had

taken “his eyes off of him.” Id. at 14. Mr. Brooks explained that Appellee

thereafter backed out of the store and fled. Id. at 14-15. Mr. Brooks further

explained that Appellee never brandished a weapon nor pointed a gun in front

of him. Id. Mr. Brooks remarked that Appellee’s back was facing the front

door and that the gun was “in back of him.” Id. at 15. Following the hearing,

the municipal court bound Appellee over for court on all charges except for

the charge of robbery in the first degree, which the municipal court


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downgraded to a third-degree felony, concluding that Appellee did not use the

gun during the commission of the crime. Id. at 20 (“I agree with defense on

this. He was trying to run . . . . It wasn’t used in the commission of it. He

was running, he was running.”).

       The Commonwealth filed a motion to refile the charge of robbery,

graded as a felony in the first degree. On May 19, 2017, Appellee filed a

“motion to quash return of transcript,”2 seeking the dismissal of all charges

based on a lack of evidence.

       A hearing on the refile motion was held on July 25, 2017 before the

Honorable Tracy Brandeis-Roman.                The prosecutor explained to Judge

Brandeis-Roman that the issue in the case was whether the Commonwealth’s

evidence presented at the preliminary hearing was sufficient to satisfy a

charge of first-degree robbery.          At the conclusion of the hearing, Judge

Brandeis-Roman denied the Commonwealth’s request to refile the charge of

first-degree robbery, but permitted the Commonwealth to charge Appellee

with robbery in the second degree. In so doing, the trial court reasoned that

the Commonwealth did not produce any evidence that Appellee brandished or


____________________________________________


2  In Philadelphia County, a motion for writ of habeas corpus challenging the
sufficiency of the evidence presented by the Commonwealth at the preliminary
hearing is generally referred to as “motion to quash the return of transcript.”
Commonwealth v. Santos, 976 A.2d 360, 361 n.3 (Pa. 2005) (noting that
it is common practice in Philadelphia County to call a petition for writ of habeas
corpus a motion to quash the return of transcript), accord Commonwealth
v. McBride, 595 A.2d 589, 590 (Pa. 1991).



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pointed the gun at anybody.           The Commonwealth timely appealed to this

Court.3    Both the Commonwealth and the trial court have complied with

Pa.R.A.P. 1925.

       On appeal, the Commonwealth raises a single issue for our review.

       Did the evidence make out a prima facie case of robbery as a
       felony of the first degree, under 18 Pa.C.S.A. § 3701(a)(1)(ii) or
       18 Pa.C.S.A. § 3701(a)(1)(iii), where [Appellee] retrieved a
       firearm from his waistband during his flight from a supermarket
       after he was stopped for being suspected of shoplifting?

The Commonwealth’s Brief at 4. Essentially, the Commonwealth argues that

the trial court erred in concluding that Appellee did not place Mr. Brooks, the

security guard, in fear of immediate serious bodily injury.4

       The purpose of a preliminary hearing is to determine whether the

Commonwealth has made out a prima facie case for the offenses charged.

Commonwealth v. Jackson, 894 A.2d 1254, 1257 (Pa. Super. 2004)

(citation omitted). “A prima facie case consists of evidence, read in the light

____________________________________________


3 In its notice of appeal, the Commonwealth certified that the dismissal of the
first-degree robbery charge substantially handicaps its prosecution. We,
therefore, have jurisdiction over this appeal. See Pa.R.A.P. 311(d).
4 To the extent the Commonwealth justifies the charge of first-degree robbery
under Section 3701(a)(iii), such argument is waived because the
Commonwealth never raised it before the trial court. See Pa.R.A.P. 302(a)
(“Issues not raised in the lower court are waived and cannot be raised for the
first time on appeal.”). Nonetheless, as the Commonwealth cogently points
out, under Pennsylvania Rule of Criminal Procedure 564, the trial court “may
allow an information to be amended, provided that the information as
amended does not charge offenses arising from a different set of events and
that the amended charges are not so materially different from the original
charge that the defendant would be unfairly prejudiced.” Pa.R.Crim.P. 564.
We, however, express no opinion on the strength or merit of a Section
3701(a)(1)(iii) charge.

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most favorable to the Commonwealth, that sufficiently establishes both the

commission of a crime and that the accused is probably the perpetrator of that

crime.”   Commonwealth v. Black, 108 A.3d 70, 77 (Pa. Super. 2015)

(citation omitted). As we have explained previously:

      The Commonwealth establishes a prima facie case when it
      produces evidences that, if accepted as true, would warrant the
      trial judge to allow the case to go to a jury. The Commonwealth
      need not prove the elements of the crime beyond a reasonable
      doubt; rather, the prima facie standard requires evidence of the
      existence of each and every element of the crime charged.
      Moreover, the weight and credibility of the evidence are not
      factors at this stage, and the Commonwealth need only
      demonstrate sufficient probable cause to believe the person
      charged has committed the offense. Inferences reasonably drawn
      from the evidence of record which would support a verdict of guilty
      are to be given effect, and the evidence must be read in the light
      most favorable to the Commonwealth’s case.


Commonwealth v. Marti, 779 A.2d 1177, 1180 (Pa. Super. 2011) (internal

citations and quotations omitted) (emphasis added).       Moreover, “suspicion

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

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

(citations omitted). Proof beyond a reasonable doubt is not required. Black,

108 A.3d at 70; see McBride, 595 A.2d at 591 (noting that the prima facie

hurdle is less demanding than the Commonwealth’s burden at trial of proving

guilt beyond a reasonable doubt).

      “It is 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.

Karetny, 880 A.2d 505, 513-14 (Pa. 2005) (citations omitted). “[T]he trial



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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 elements of a charged crime.” Id. at 513.

Therefore, we are not bound by the legal determinations of the trial court.

Commonwealth v. Dantzler, 135 A.3d 1109, 1112 (Pa. Super. 2016).

      To sustain a conviction for first-degree robbery under Section

3701(a)(1)(ii), the Commonwealth must establish that “in the course of

committing a theft,” the defendant “threatens another with or intentionally

puts him in fear of immediate serious bodily injury.”            18 Pa.C.S.A. §

3701(a)(1)(i). “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).

      A conviction under Section 3701(a)(1)(ii) is contingent upon the type of

bodily harm threatened. See Commonwealth v. Ross, 570 A.2d 86, 87 (Pa.

Super. 1990) (evidence sufficient to show appellant, by the use of an upraised

knife, threatened the victim with serious bodily injury), appeal denied, 593

A.2d 417 (Pa. 1990). The Commonwealth need not prove a verbal utterance

or   threat   to   sustain   a   conviction   under    Section    3701(a)(1)(ii).

Commonwealth v. Hopkins, 747 A.2d 910, 914 (Pa. Super. 2000) (citations

and quotation marks omitted). It is sufficient if the evidence demonstrates

aggressive actions that threatened the victim’s safety. Id. For the purposes

of Section 3701(a)(1)(ii), the proper focus is on the nature of the threat posed

by an assailant and whether he reasonably placed a victim in fear of

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“immediate serious bodily injury.” Id. (citations omitted). Thus, a reviewing

court will consider the defendant’s intent and actions and not necessarily the

subjective state of mind of the victim. Commonwealth v. Rodriquez, 673

A.2d 962, 966 (Pa. Super. 1996); see Commonwealth v. Nelson, 582 A.2d

1115, 1118 (Pa. Super. 1990) (“The fact that the threat may not have

produced the intended fear is irrelevant.”), appeal denied, 593 A.2d 840 (Pa.

1991); see also Commonwealth v. Mays, 375 A.2d 116, 117-18 (Pa. Super.

1977) (noting that it is irrelevant that the victim may not have taken the

threat seriously).    The threat posed by the appearance of a firearm is

calculated to inflict fear of deadly injury, not merely fear of “serious bodily

injury.” Hopkins, 747 A.2d at 914. A factfinder is entitled to infer that a

victim was in mortal fear when a defendant visibly brandished a firearm. Id.

      Instantly, based upon our review of the evidence produced at the

preliminary hearing, viewed in the light most favorable to the Commonwealth

and accepted as true at this juncture, we conclude that the trial court erred in

denying the Commonwealth’s motion to refile the robbery charge as a first-

degree felony. The Commonwealth offered the testimony of Mr. Brooks, the

security guard, who testified that Appellee “reached for a gun” as he stopped

Appellee at the front door following Appellee’s alleged theft of shrimp and

lobster. Mr. Brooks testified that he pushed Appellee’s hand away and let him

back out of the store, uttering to his manager that “we ain’t dying for this.”

Instead of relying on the foregoing to satisfy the element of “fear of immediate

serious   bodily   injury”   under   Section   3701(a)(1)(ii),   the   trial   court

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impermissibly engaged in weighing evidence and resolving conflicts in

testimony. Specifically, the trial court weighed Mr. Brooks’ testimony and the

surveillance video and found that Mr. Brooks could not have seen or believed

that Appellee possessed a gun, given Mr. Brooks’ vantage point as depicted

on the video recording.    The resolution of such conflict is best left to the

discretion of the factfinder. As noted earlier, the weight and credibility of the

evidence are not factors at this stage. See Marti, supra. Accordingly, we

conclude   that the   Commonwealth       offered sufficient   evidence   at the

preliminary hearing from which a finder of fact may conclude that Appellee

engaged in first-degree robbery, by putting Mr. Brooks in fear of immediate

serious bodily injury when Appellee reached for his waist during his tussle with

Mr. Brooks.

      Insofar as the trial court suggests that the brandishing or pointing of a

gun is a prerequisite for establishing guilt under Section 3701(a)(1)(ii), we

reject such suggestion. In Commonwealth v. Bragg, 133 A.3d 328, 332

(Pa. Super. 2016), this Court affirmed the trial court’s ruling that sufficient

evidence supported the defendant’s robbery conviction under Section

3701(a)(1)(ii), where the defendant entered the bank, disguising himself with

sunglasses and baseball cap and wearing surgical gloves to conceal his

fingerprints, and said to the teller “What are you looking at?” In so doing, we

rejected the defendant’s argument that he could not be guilty of first-degree

robbery because he did not brandish a weapon or make a specific verbal

threat. Id. We explained that this Court has never held that brandishing a

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weapon or making specific verbal threats are required to sustain a conviction

under Section 3701(a)(1)(ii). Id. Similarly, in Commonwealth v. Davis,

459 A.2d 1267, 1272 (Pa. Super. 1983), a defendant entered a pipe shop

through the store window, told the clerk to get back, and removed money

from the cash register. Viewing the defendant’s mode of entry and his warning

to the clerk as aggressive and thus implying a threat to the victim’s safety,

this Court    upheld    the   defendant’s     robbery   conviction under    Section

3701(a)(1)(ii). Accordingly, it is of no moment that Appellee never brandished

or pointed his gun at Mr. Brooks.

      In sum, based on the foregoing reasons, we conclude that the

Commonwealth presented sufficient evidence at the preliminary hearing to

establish   robbery    in   the   first   degree   under   Section   3701(a)(1)(ii).

Accordingly, we reverse the trial court’s July 25, 2017 order and remand this

case to the trial court for further proceedings consistent with this Opinion.

      Order reversed. Case remanded. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/27/18




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