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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

KENYATTA HOLLOWAY

                                                     No. 3758 EDA 2015


                  Appeal from the Order November 16, 2015
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0009122-2015



BEFORE: BOWES AND MOULTON, JJ., AND STEVENS, P.J.E.*

MEMORANDUM BY BOWES, J.:                             FILED APRIL 13, 2017

     The Commonwealth appeals from the order denying its request to

refile charges of first-degree murder or murder generally against Appellee,

Kenyatta Holloway. We reverse and remand.

     This matter arose following the death of Antoine Wilkinson. On March

28, 2015, Appellee and Wilkinson were living together. Appellee’s ten-year-

old brother, J.F., overheard Appellee and Wilkinson become ensnared in a

heated   argument    regarding   Wilkinson’s   alleged   rough   treatment   of

Appellee’s three-year-old son, and objects breaking while the two adults

loudly argued. When J.F. entered the room, Appellee told him to go outside

with her son.     J.F. complied, but soon after, was called back into the

residence.

* Former Justice specially assigned to the Superior Court.
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      Upon returning, the boy observed Wilkinson sitting on the floor.

Unbeknownst to the boy, Wilkinson was either dead or dying.            Appellee

directed him to clean up broken glass scattered throughout the house. As

they cleaned, Wilkinson did not move, and J.F. noticed a knife on the floor

nearby.   The police arrived some time later; however, when they arrived,

the knife was no longer in the living room.

      Wilkinson died of a single, fatal stab wound to his chest.       Appellee

spoke with Detective Jeff Burke who was assigned to investigate the death.

She told Detective Burke that Wilkinson had returned home with the stab

wound, apparently inflicted by a third-party. Appellee identified that person,

but further investigation proved this recounting of events to be fabricated.

Appellee was arrested and charged with murder generally and possession of

an instrument of crime.

      On September 9, 2015, a preliminary hearing was held before the

Philadelphia municipal court. The Commonwealth proffered the testimony of

J.F., Detective Burke, and stipulated to the contents of the medical

examiner’s report as to Wilkinson’s cause of death. Nevertheless, the court

barred the Commonwealth from pursuing a first degree murder charge,

finding no evidence that Appellee exhibited a specific intent to kill Wilkinson.

      On September 14, 2015, the Commonwealth filed a notice of its intent

to refile the criminal complaint. The court held a hearing on the matter on

November 16, 2015, and after considering additional evidence, denied the

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Commonwealth’s motion to refile the criminal complaint including a charge

for first degree murder.     The Commonwealth filed a timely appeal and

complied with the trial court’s directive to file a Rule 1925(b) statement of

matters complained of on appeal.       The court authored its Rule 1925(a)

opinion and this matter is now ripe for review.

      The Commonwealth brings one issue to our attention: “Did the lower

court err in declining to permit refiling of the charge of murder of the first

degree or murder generally where the evidence was sufficient to establish a

prima facie case that [Appellee] fatally stabbed the victim in the chest?”

Commonwealth’s brief at 1.

      At a preliminary hearing the Commonwealth must establish a prima

facie case.       Commonwealth v. Claffey, 80 A.3d 780, 788 (Pa.Super.

2013). A prima facie case requires evidence tending to prove the existence

of each material element of the charged offenses and probable cause to

believe the defendant committed the crimes such that, if that evidence were

proffered at trial, the court would be warranted in presenting the case to the

finder-of-fact.     Id.   Whether the Commonwealth presented sufficient

evidence to establish a prima facie case is a question of law.      Thus, our

standard of review is plenary, and we are not bound by the legal

determinations of the trial court. Commonwealth v. Dantzler, 135 A.3d

1109, 1112 (Pa.Super. 2016).




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      When determining whether the Commonwealth established a prima

facie case, “we 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.”         Commonwealth v.

Landis, 48 A.3d 432, 444 (Pa.Super. 2012) (citation omitted).                 This

standard “does not require that the Commonwealth prove the accused’s guilt

beyond a reasonable doubt at this stage.” Id. (citation omitted). Instead,

the Commonwealth must simply present evidence of each element of the

crime charged. Id.

      To sustain a conviction for first-degree murder, the court must find

that: (1) a human being was unlawfully killed; (2) the defendant was

responsible for the killing; and (3) the defendant acted with malice and a

specific intent to kill, that is, a “willful, deliberate and premeditated killing.”

Commonwealth v. Woodard, 129 A.3d 480, 490 (Pa. 2015); 18 Pa.C.S. §

2502(a), (d).   Specific intent to kill can be proven through circumstantial

evidence, such as the use of a deadly weapon on a vital part of the victim’s

body. Commonwealth v. Mattison, 82 A.3d 386, 392 (Pa. 2013).

      The trial court determined that the Commonwealth failed to produce

evidence of Appellee’s specific intent to kill Wilkinson.     The court asserted

that the evidence proffered by the Commonwealth demonstrated that

Appellee and Wilkinson were involved in a heated argument.            It observed

that, “[a] single stab would under these circumstances, during a mutual

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affray, clearly demonstrates legal malice.” Trial Court Opinion, 3/14/16, at

5. However, it stated that, “without more, a finding of specific intent to kill

would be based on speculation rather than reasonable inference.”             Id.

Moreover, the court was not persuaded that Appellee’s post-incident attempt

to cover-up Wilkinson’s death was probative of her intent to kill him.         It

discounted this evidence, and further referred to the Commonwealth’s

reliance on evidence that Appellee used a deadly weapon on a vital area as a

“quasi-presumption.” Id. at 6. Thus, it concluded that the Commonwealth

had not met its burden of presenting evidence of every element of first

degree murder.

      The Commonwealth assails the trial court’s ruling that it failed to

produce evidence of Appellee’s specific intent to kill Wilkinson, contending

that the evidence that Appellee stabbed the victim in the chest creates an

inference that she specifically intended to kill him.     In addition, it asserts

that Appellee’s specific intent is bolstered by her attempt to conceal her

involvement in the homicide, first by cleaning up the crime scene, and then

by   falsely   accusing   a   third-party   of   committing   the   crime.   The

Commonwealth reasons that the trial court’s reliance on the mutuality of the

altercation does not preclude the possibility that Appellee intended to

murder Wilkinson.     The Commonwealth concludes that, when considering

this evidence together, it offered sufficient proof to establish a prima facie

case that Appellee stabbed Wilkinson with the intent to kill him. We agree.

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      At the first preliminary hearing, the Commonwealth offered the

testimony of Appellee’s brother, J.F., who recounted the events leading up to

Wilkinson’s death.    J.F. intimated that, during a heated exchange with the

victim, Appellee directed him to leave the house.        Preliminary Hearing,

9/9/15, at 14. When he reentered the house, his sister did not call 9-1-1,

but rather, instructed him to help clear the broken glass scattered

throughout the house.      Id. at 15; 17.     Moreover, the alleged murder

weapon, which had been lying on the floor near Wilkinson, disappeared

before police arrived. Id. at 18-19. J.F. stated that he did not move the

knife, but that it had been moved. Id. at 19.

      The Commonwealth also entered a stipulation as to Wilkinson’s cause

of death.   It produced a medical examiner’s report indicating that he died

from a single stab to the lower anterior chest wall, which penetrated his left

lung and lacerated the left main pulmonary artery. Id. at 31-32. Finally,

the Commonwealth presented the testimony of Detective Burke who was

responsible for the homicide investigation. Detective Burke indicated that,

upon arriving at the scene of the murder, Appellee stated that Wilkinson had

returned home with the wound, and that the wound was inflicted by a third

party. Id. at 33-34. That person was identified, but further investigation

proved that the third party did not stab the victim. Id. at 34.

      A second hearing was held after the Commonwealth refiled the

criminal complaint.     At this hearing, the Commonwealth again offered

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testimony by Detective Burke. Detective Burke relayed further information

obtained during his ongoing investigation from Wilkinson’s brother, C.W.

C.W. had provided the detective with information regarding an earlier

incident in the summer of 2014 between Appellee and Wilkinson wherein

Appellee had purportedly attacked Wilkinson with a razor blade. Preliminary

Hearing, 11/16/15, at 7-8.        C.W. then supplied the detective with

photographs of Wilkinson’s alleged injuries.

      Upon our review of the certified record, the trial court did not give

effect to the reasonable inferences available to support intent.    The court

grounded its conclusion on its belief that a single stab wound to a vital part

of the body inflicted during an argument is a mere “quasi-presumption,”

which it found could not alone support a finding that Appellee acted with the

requisite intent to kill when she stabbed Wilkinson. Although it is not clear

from the trial court’s opinion what a “quasi-presumption” is, we find that the

evidence, when considered as a whole, is sufficient to establish a prima facie

case of first degree murder.

      As noted above, the trial court determined that Appellee’s behavior

before and after Wilkinson’s slaying was probative of malice, but not intent.

Trial Court Opinion, 5/14/15, at 5-6. Indeed, it stated that, without more

evidence, a finding of specific intent would be based on “speculation.” Id. at

5. We agree with the court that Appellee’s behavior is proof of legal malice,




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but disagree that the additional evidence does not support the reasonable

inference that Appellee had the specific intent to kill Wilkinson.

      Instantly, we can reasonably infer from the circumstances outlined

above that Appellee’s conduct on the day in question evidences that Appellee

deliberately killed Wilkinson.    Despite being engrossed in an animated

exchange, Appellee ordered her brother to exit the house.             Shortly

thereafter, she called him in to help clean up the evidence of her battle with

Wilkinson.    In the interim, Appellee attacked and killed the victim by

stabbing him in a vital portion of his body. A reasonable person could find

that Appellee had formulated a plan to kill Wilkinson, but did not want her

brother and son present for the encounter.           Following the attack on

Wilkinson, Appellee did not call the paramedics, but rather, evinced a

determination to avoid accountability. Not only did she hide the supposed

murder weapon before police appeared at her house, when they did arrive,

she deceived the officers as to the cause of Wilkinson’s death.

      Although there is no indication that Appellee formed her intent to kill

Wilkinson prior to their argument on the day in question, the period of

premeditation necessary to form the specific intent to kill may be very brief

and can be formulated in a fraction of a second.           Commonwealth v.

Hitcho, 123 A.3d 731, 746 (Pa. 2015). When we view this evidence in the

light most favorable to the Commonwealth, and in light of the presumption

that the use of a deadly weapon on a vital part of the body raises the factual

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presumption of a specific intent to kill, we can reasonably infer that Appellee

possessed the conscious purpose to slay Wilkinson when she stabbed him in

the chest, and then sought to cover up her crime. Landis, supra. These

actions not only corroborate a consciousness of guilt, but also substantiate

the inference that Appellee formulated a plan to murder Wilkinson, albeit

during a heated dispute, and then carried out that plan in order to escape

prosecution for his death.

      The   evidence   proffered   by   the   Commonwealth      supports   the

presumption that Appellee acted with specific intent to kill when she used a

deadly weapon on a vital part of his body.        Thus, for the purposes of

establishing a prima facie case, we find that the Commonwealth bore its

burden of supplying probable cause to believe the defendant committed first

degree murder such that, if that evidence were proffered at trial, the court

would be warranted in presenting the case to the finder-of-fact.

      Order reversed. Case remanded. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/13/2017




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