J-S65044-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellant

                       v.

NICHOLAS KIRBY,

                            Appellee                  No. 1140 EDA 2014


                 Appeal from the Order Entered February 6, 2014
              in the Court of Common Pleas of Philadelphia County
                Criminal Division at No.: CP-51-CR-0012235-2013


BEFORE: PANELLA, J., OLSON, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                           FILED JANUARY 13, 2015

        The Commonwealth appeals1 from the order of February 6, 2014,

which granted the motion of Appellee, Nicholas Kirby, to quash certain of the

charges against him.2        Under the circumstances of this case, we hold the

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
  The Commonwealth may take an appeal of right from an order that does
not end the entire case if the Commonwealth certifies in the notice of appeal
that the order will terminate or substantially handicap the prosecution. See
Pa.R.A.P. 311(d); see also Commonwealth v. Torres, 764 A.2d 532, 536,
n.2 (Pa. 2001). The Commonwealth has filed such a certification in this
case.
2
  The trial court quashed charges of aggravated assault, 18 Pa.C.S.A. §
2702(a)(1); terroristic threats, 18 Pa.C.S.A. § 2706(a)(1); and recklessly
endangering another person, 18 Pa.C.S.A. § 2705. (See Order, 2/06/14, at
unnumbered page 1).          At the hearing on Appellee’s motion, the
Commonwealth agreed to the dismissal of the terroristic threats charge.
(Footnote Continued Next Page)
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Commonwealth did establish a prima facie case of aggravated assault.

Accordingly, we reverse and remand for trial.

      We take the underlying facts in this matter from the trial court’s June

10, 2014 opinion.

             On March 18, 2013, Allen Taylor [Taylor] and his wife,
      Regina [Regina], were walking home in Philadelphia, when
      [Appellee] and another unknown male walked past them and
      approached a neighbor’s door. One of the men began kicking the
      neighbor’s door.     [Taylor] testified that he asked the men to
      stop, and told [Regina] to go call 911. At that point, [Appellee]
      started to walk away while the other male remained at the
      neighbor’s front door. [Regina] was on her step with their dog.
      When her dog barked, [Appellee] threatened [Regina], stating,
      “I will kill you and your dog.” At this point, [Taylor] ran up to
      position himself between [Regina] and [Appellee] to protect
      [her]. [Taylor] testified that [Regina] yelled “look out,” at which
      time the other unknown male jumped onto Taylor’s back, and
      [Appellee] punched Taylor once in the face. [Taylor] stated that
      he “went down” as a result of being tackled by the other male,
      and he “couldn’t tell you much after that.” [Taylor] could not
      state who hit him after that, just that he was beaten, and the
      men then walked away.

             As a result of the incident, [Taylor] testified that his leg
      was broken, requiring rods and screws being implanted, and he
      suffers from dizziness and memory loss. [Taylor] did not testify
      as to how his leg was broken, as to whether from the fall or
      otherwise. There was no testimony that any weapon, other than
      fists, was used during the ordeal. The complainant testified that
      he did not know where he fell, he did not know which defendant
      did what once he fell, and that the assault stopped when the two
      men walked away. As to [Appellee], [Taylor] could only testify
      that [Appellee] punched him once. The Commonwealth did not
      call [Regina], or any other witnesses to the incident to testify.
                       _______________________
(Footnote Continued)

(See N.T. Motion Hearing, 2/06/14, at 5). In its brief, the Commonwealth
challenges only the quashal of the aggravated assault charge.      (See
Commonwealth’s Brief, at 4).



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(Trial Court Opinion, 6/10/14, at 3-4) (record citations omitted).

       A preliminary hearing in this matter took place on September 27,

2013, and the court bound Appellee over for trial on charges of aggravated

assault, simple assault, conspiracy, terroristic threats, and recklessly

endangering another person. On October 4, 2013, Appellee filed a motion to

quash, wherein Appellee argued that the trial court should dismiss all

charges except for simple assault.             (See Motion to Quash, 10/04/13, at

unnumbered pages 1-2; N.T. Motion Hearing, 2/06/14, at 2).3                Following

argument, the trial court dismissed all charges except those of simple

assault and conspiracy. (See id. at 6).

       On March 6, 2014, the Commonwealth filed a motion to reconsider the

quashal    of   the   aggravated      assault    charge   only.   (See   Motion   for

Reconsideration, 3/06/14, at 3-4).             The trial court denied the motion for

reconsideration on March 12, 2014. The instant timely appeal followed. The

trial court did not order the Commonwealth to file a concise statement of

errors complained on appeal pursuant to Pa.R.A.P. 1925(b). See Pa.R.A.P.

1925(b). Nevertheless, the Commonwealth filed a Rule 1925(b) statement

on April 11, 2014. The trial court issued an opinion on June 10, 2014. See

Pa.R.A.P. 1925(a).

____________________________________________


3
 The trial court deemed the motion to quash to be a petition for a writ of
habeas corpus. (See Trial Ct. Op., 6/10/14, at 2).



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     On appeal, the Commonwealth raises a single question for our review:

           Did the evidence at the preliminary hearing establish a
     prima facie case of aggravated assault where [Appellee] and an
     accomplice beat the victim for five minutes, causing him to
     suffer a concussion and a broken leg?

(Commonwealth’s Brief, at 4).

     Our standard of review is as follows:

           . . . 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. Indeed, the 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 elements of a charged crime.

                                    *     *   *

           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). Further, we note that the function 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. Its purpose is not to prove




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defendant’s guilt.” Commonwealth v. Jackson, 849 A.2d 1254, 1257 (Pa.

Super. 2004) (citation omitted).

      A person commits aggravated assault if he:

      (1) attempts to cause serious bodily injury to another, or causes
      such injury intentionally, knowingly or recklessly under
      circumstances manifesting extreme indifference to the value of
      human life.

18 Pa.C.S.A. § 2702(a)(1).     We have defined “serious bodily injury” as

“[b]odily injury which creates a substantial risk of death or which causes

serious permanent disfigurement, or protracted loss or impairment of the

function of any bodily member or organ.” 18 Pa.C.S.A. § 2301.

      Here, trial court found that the testimony at the preliminary hearing

demonstrated that Appellee only hit the victim, Taylor, once and the

testimony was “sparse” as to what occurred when the victim was on the

ground.   (Trial Ct. Op., at 5).   The record does not support this finding.

Taylor testified that Appellee threatened to kill his wife Regina; when Taylor

moved between Appellee and Regina, the co-conspirator jumped on his

back, and Appellee punched him. (See N.T. Preliminary Hearing, 9/27/13,

at 5-6). While Taylor had little specific memory of what occurred after he

fell to the ground, he testified that he remembered one of the men who was

on top of him hitting him in the face and leg, and both men “were beating on

me.” (Id. at 11; see also id. at 6) (“I was being hit all over.”). Further,

the testimony at the preliminary hearing established that, because of the

incident, Taylor sustained a concussion and a broken leg, which required the

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insertion of rods and screws, causing him to miss two months of work; he

continues to suffer from dizzy spells and memory loss.                 (See N.T.

Preliminary Hearing, 9/27/13, at 6-7).

      Viewing    the      evidence   in   the   light   most   favorable   to   the

Commonwealth, the Commonwealth established a prima facie case that

Appellee who was acting in concert with a second man, caused serious bodily

injury to Taylor. See Commonwealth v. Bradley, 69 A.3d 253, 257 (Pa.

Super. 2013), appeal denied, 79 A.3d 1095, (Pa. 2013) (broken arm was

sufficient to show serious bodily injury); Commonwealth v. Rightley, 617

A.2d 1289, 1295 (Pa. Super. 1992) (concussion was sufficient to show

serious bodily injury).

      Moreover, Appellee and his co-conspirator acted recklessly under

circumstances manifesting extreme indifference to the value of human life,

when, without provocation, they jumped Taylor and beat him.                     See

Commonwealth v. Patrick, 933 A.2d 1043, 1046 (Pa. Super. 2007),

appeal denied, 940 A.2d 364 (Pa. 2007) (Commonwealth established prima

facie case for aggravated assault where defendant made surprise attack on

victim, punching him on head, which knocked him to ground and showed

reckless indifference under circumstances).

      In addition, the Commonwealth made a prima facie showing that

Appellee attempted to cause serious bodily injury.         We have stated that,

“[t]he intent to cause serious bodily harm may be shown by circumstances


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surrounding the incident.    Furthermore, the conduct giving rise to the

inference that the defendant intended to inflict serious bodily harm need not

in itself be life threatening.” Commonwealth v. Caterino, 678 A.2d 389,

391 (Pa. Super. 1996), appeal denied, 684 A.2d 555 (Pa. 1996) (citations

omitted).   As stated above, the circumstances surrounding the incident

demonstrated that Appellee, without provocation, threatened to kill Regina,

and he and his co-conspirator beat Taylor for approximately five minutes

while he was on the ground. This was sufficient to establish a prima facie

case for aggravated assault.   See Commonwealth v. Glover, 449 A.2d

662, 666 (Pa. Super. 1982), affirmed, 458 A.2d 935 (Pa. 1983) (evidence

sufficient to sustain conviction for aggravated assault where defendant,

acting with two other men, struck victim repeatedly).

     Thus, we find that the trial court erred in quashing the charge of

aggravated assault. The Commonwealth established a prima facie case that

Appellee committed aggravated assault.     See Karenty, supra at 513-14;

Patrick, supra at 1046. Accordingly, we reverse the trial court’s order and

remand the case for proceedings consistent with this decision.

     Order reversed. Case remanded. Jurisdiction relinquished.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/13/2015




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