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                                   2016 PA Super 59

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellant

                       v.

THOMAS DANTZLER,

                            Appellee                   No. 681 EDA 2014


                    Appeal from the Order January 28, 2014
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0008351-2012

BEFORE: GANTMAN, P.J., BENDER, P.J.E., BOWES, PANELLA, SHOGAN,
        LAZARUS, OTT, STABILE, and JENKINS, JJ.

OPINION BY BOWES, J.:                                 FILED MARCH 09, 2016

       The Commonwealth appeals from the January 28, 2014 order entered

by the trial court that granted Thomas Dantzler’s pre-trial motion to quash

the charges leveled herein based on a lack of prima facie evidence.1      We

reverse and remand.

       Reginald Smith, the victim in this matter, resided with Tiffany, 2 his

girlfriend and the mother of his child, on the 3500 block of Camac Street,

Philadelphia.     On March 27, 2012, Mr. Smith arrived at his home and


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1
  We have jurisdiction over this appeal pursuant to Pa.R.A.P. 311(d).
Commonwealth v. Karetny, 880 A.2d 505 (Pa. 2005).
2
    The record does not reveal Tiffany’s surname.
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discovered Appellee engaging in sexual activity with Tiffany.3           As a result,

Mr. Smith tried to remove both Tiffany and Appellee from the home.

Appellee and Mr. Smith then began to fight, with Mr. Smith attempting to

force Appellee out his front door.             Mr. Smith ultimately retrieved a stick

during the struggle and began to beat Appellee. Tiffany also used a taser on

Appellee.

        Mr. Smith’s neighbor, Kim Amos, who had lived in her home for

twenty-three years, arrived to see Mr. Smith, Tiffany, and Appellee fighting.

Ms. Amos maintained that Appellee was trying to enter the home and Mr.

Smith was trying to push him out and that this happened several times. Ms.

Amos saw Mr. Smith use the stick outside the home to beat Appellee and

asked Mr. Smith and Tiffany to stop attacking Appellee and call the police.

Ms. Amos then telephoned 911 herself. Police charged Mr. Smith and Tiffany

with assault.

        Thereafter, on April 7, 2012, at around 3:00 p.m., Ms. Amos observed

Appellee and co-defendant Gelain Heard approach her home.                        She

recognized Appellee from the fight but had never seen Mr. Heard. After they

stopped in front of her house, she shouted at them that, “You have the

wrong house.”       N.T., 7/16/12, at 17.          She repeated that several times.

Nonetheless, Mr. Heard used a cell phone to take a picture of her house.
____________________________________________


3
    Mr. Smith testified that Appellee paid his girlfriend for sex.



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      Disturbed, Ms. Amos then followed the two men in her car and saw

them enter a black Dodge Durango.       She drove next to the Durango and

again informed the men that they had the wrong home.             Appellee was

seated in the driver’s seat of the Durango. Mr. Heard then said twice, “On

everything I love, just don’t be in the house tonight.” Id. at 21.

      Later that evening, a video surveillance camera captured an individual

in a black hoodie with a baseball cap standing next to Appellee’s Durango,

conversing with the driver, around the corner from Ms. Amos’ and Mr.

Smith’s homes.    Several minutes later, Ms. Amos saw Mr. Heard on her

steps, wearing a black hoodie and baseball hat. Mr. Heard asked her twice,

“Is this the F-in’ house?” Id. at 24. Ms. Amos responded, “F-no, this is not

the house,” and slammed her door. Id. Within five minutes, she heard four

or five gun shots ring out. Mr. Smith, who was alone in his house at the

time, described bullets flying into his home. He was hit in the shoulder with

a bullet and another bullet grazed his neck.

      Subsequently, police charged Appellee with aggravated assault,

conspiracy to commit aggravated assault, possession of an instrument of

crime (“PIC”), simple assault, and recklessly endangering another person

(“REAP”). He proceeded to a preliminary hearing and the court bound over

the case for trial. Appellee then filed a motion to quash the information, the

equivalent in Philadelphia practice of a pre-trial writ of habeas corpus. After

reviewing the notes of testimony from the preliminary hearing, the trial

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court conducted a hearing. It heard additional evidence and then granted

the motion.     The Commonwealth filed a motion for reconsideration, which

the court denied on February 25, 2014.                  The Commonwealth timely

appealed.

        A divided panel of this Court affirmed, concluding that based on an

abuse of discretion standard we were required to defer to the trial court and

that the evidence only showed mere presence at the scene shortly before

the crime occurred.4 The Commonwealth sought en banc review, which this

Court    granted.      The    matter     is    now   ready   for   our   review.   The

Commonwealth’s sole issue on appeal is “Did the lower court err in ruling

that the evidence was insufficient for a prima facie case?” Commonwealth’s

brief at 4.

        We review a decision to grant a pre-trial petition for a writ of habeas

corpus by examining the evidence and reasonable inferences derived

therefrom in a light most favorable to the Commonwealth. Commonwealth

v. James, 863 A.2d 1179, 1182 (Pa.Super. 2004) (en banc).                           In

Commonwealth v. Karetny, 880 A.2d 505 (Pa. 2005), our Supreme Court

found that this Court erred in applying an abuse of discretion standard in

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4
  Our Supreme Court’s decision in Commonwealth v. Karetny, 880 A.2d
505, 513 (Pa. 2005), indicates that the majority memorandum utilized a
since disavowed standard of review. See discussion infra.




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considering     a   pre-trial    habeas        matter   to   determine   whether   the

Commonwealth had provided prima facie evidence.                   The Karetny Court

opined, “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.” Id. at

513; see also Commonwealth v. Huggins, 836 A.2d 862, 865 (Pa. 2003)

(“The question of the evidentiary sufficiency of the Commonwealth’s prima

facie case is one of law[.]”).             The High Court in Karetny continued,

“[i]ndeed, 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.” Karetny, supra at 513. Hence, we are not bound by the

legal determinations of the trial court. To the extent prior cases from this

Court have set forth that we evaluate the decision to grant a pre-trial habeas

corpus motion under an abuse of discretion standard, our Supreme Court

has rejected that view. See id.5

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5
 The following are a sampling of Superior Court cases that have applied an
abuse of discretion standard:

Commonwealth           v. Black, 108 A.3d 70, 77 (Pa.Super.                   2015);
Commonwealth          v. McCullough, 86 A.3d 901, 905 (Pa. Super.             2014);
Commonwealth          v. McCullough, 86 A.3d 896, 898 (Pa.Super.              2014);
Commonwealth          v. Winger, 957 A.2d 325, 327 (Pa.Super.                 2008);
Commonwealth          v. Carroll, 936 A.2d 1148, 1152 (Pa.Super.              2007);
Commonwealth           v. Kelly, 931 A.2d 694, 696 (Pa.Super.                 2007);
Commonwealth          v. Hendricks, 927 A.2d 289, 290 (Pa.Super.              2007);
(Footnote Continued Next Page)


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      A pre-trial habeas corpus motion is the proper means for testing

whether the Commonwealth has sufficient evidence to establish a prima

facie case.    Carroll, supra at 1152.           “To demonstrate that a prima facie

case exists, the Commonwealth must produce evidence of every material

element of the charged offense(s) as well as the defendant's complicity

therein.”     Id.   To “meet its burden, the Commonwealth may utilize the

evidence presented at the preliminary hearing and also may submit

additional proof.” Id.

                       _______________________
(Footnote Continued)

Commonwealth v. Williams, 911 A.2d 548, 550 (Pa.Super. 2006);
Commonwealth v. James, 863 A.2d 1179, 1181-1182 (Pa.Super. 2004)
(en banc); Commonwealth v. Engle, 847 A.2d 88, 91 (Pa.Super. 2004);
Commonwealth v. Ruby, 838 A.2d 786, 788 (Pa.Super. 2003);
Commonwealth v. Keller, 823 A.2d 1004, 1010-1011 (Pa. Super. 2003);
Commonwealth v. Carbo, 822 A.2d 60, 63 (Pa.Super. 2003);
Commonwealth v. Fountain, 811 A.2d 24, 25 (Pa. Super. 2002);
Commonwealth v. Kohlie, 811 A.2d 1010 (Pa. Super. 2002);
Commonwealth v. Miller, 810 A.2d 178, 180 (Pa.Super. 2002);
Commonwealth v. Giusto, 810 A.2d 123, 125 (Pa.Super. 2002);
Commonwealth v. Packard, 767 A.2d 1068, 1070 (Pa.Super. 2001);
Commonwealth v. Saunders, 691 A.2d 946, 948 (Pa.Super. 1997);
Commonwealth v. Karlson, 674 A.2d 249, 251 (Pa.Super. 1996);
Commonwealth v. Schwer, 660 A.2d 621, 622 (Pa.Super. 1995);
Commonwealth v. Lundberg, 619 A.2d 1066 (Pa.Super. 1993).

       The Lundberg Court is one of the first pre-trial habeas cases to recite
this standard, but it relied on two decisions that pertained to post-conviction
habeas corpus petitions. See Commonwealth v. Lundberg, 619 A.2d
1066 (1993) (citing Commonwealth ex rel. Kitchen v. Burke, 107 A.2d
193, 195 (Pa.Super. 1954); Commonwealth ex rel. Richter v. Burke,
103 A.2d 293, 295 (Pa.Super. 1953)). The pre-trial habeas cases are not
sound relative to the standard of review.




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       The Commonwealth maintains that the trial court erred as a matter of

law in dismissing the charges against Appellee.6                      According to the

Commonwealth,        the    trial    court    made    impermissible    and   implausible

inferences from the evidence and entirely disregarded its evidence of

motive. It highlights that the credibility of witnesses is not determined at a

preliminary hearing and that the question of whether the evidence was

sufficient is one of law.       In its view, the trial court erred in finding that,

absent direct evidence of an agreement between Appellee and his co-

defendant, neither a conspiracy nor conspiratorial liability was established.

The Commonwealth posits that direct evidence is not mandated nor is

required    to    prove    an       express    or    explicit   agreement    via   verbal

communication.

       It continues that the following evidence was sufficient to establish a

prima facie case: Appellee traveled together with Mr. Heard to where

Appellee had recently been involved in a fight with the victim, took a picture

of the victim’s neighbor’s home, was present when his co-defendant made a

threat, and his vehicle was observed around the corner from Mr. Smith’s

home with a person fitting the description of Mr. Heard shortly before Mr.


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6
 Appellee expressly declined to file a brief in this matter and therefore has
not advanced any argument in support of his position on appeal aside from
adopting the trial court’s decision.



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Heard arrived on the door step of Mr. Smith’s neighbor’s home, and then

shots were fired at Mr. Smith’s house.

      The Commonwealth adds that its evidence demonstrated that Mr.

Heard had no affiliation with the victim.       It suggests that, “[o]nly a

conspiracy with [Appellee], who had ample motive, can explain why Heard

decided to track down a complete stranger and fire multiple bullets into his

home.”   Commonwealth’s brief at 21.      In addition, it points out that Ms.

Amos inferred a conspiratorial purpose and potential criminal activity herself

when she saw the pair in front of her house taking a picture of her home,

and repeatedly instructed the men that they had the wrong house.

      The trial court opined that the prosecution’s evidence of a conspiracy

was speculative and that it “did not present any direct evidence that

Dantzler was involved in the shooting of Reginald Smith.”         Trial Court

Opinion, 5/16/14, at 7.   The court found that the circumstantial evidence

merely established that Appellee and Mr. Heard were together three hours

before the shooting and that Mr. Heard had made a threat in which Appellee

did not acquiesce.    We disagree and find that the trial court failed to

consider the evidence in a light most favorable to the Commonwealth and

disregarded the reasonable and obvious inferences from the evidence

presented.

      As noted, the Commonwealth charged Appellee with aggravated

assault, conspiracy to commit aggravated assault, simple assault, PIC, and

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REAP. The Commonwealth’s theory for these crimes is based on vicarious

liability, specifically conspiratorial liability.7   A conspiratorial agreement “can

be inferred from a variety of circumstances including, but not limited to, the

relation between the parties, knowledge of and participation in the crime,

and the circumstances and conduct of the parties surrounding the criminal

episode.”    Commonwealth v. Feliciano, 67 A.3d 19, 25-26 (Pa.Super.

2013) (en banc) (discussing crime of conspiracy). This Court has explained

in the context of a sufficiency claim following a finding of guilt that, “the

Commonwealth must establish the defendant: 1) entered into an agreement

to commit or aid in an unlawful act with another person or persons; 2) with

a shared criminal intent; and 3) an overt act was done in furtherance of the

conspiracy.” Feliciano, supra at 25-26. The Feliciano Court added, “The

conduct of the parties and the circumstances surrounding such conduct may

create a web of evidence linking the accused to the alleged conspiracy

beyond a reasonable doubt.” Id. at 26.               Necessarily, the conduct of the

parties and circumstances surrounding that conduct may establish sufficient
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7
  A defendant can also be guilty of a crime if he is an accomplice of another
person who commits that crime. Conspiracy and accomplice liability are not
identical. See Commonwealth v. Roebuck, 32 A.3d 613, 622-623 (Pa.
2011). While a defendant does not become an accomplice merely by being
present at the scene of a crime, he may be an accomplice if, with the intent
of promotion or facilitating commission of the crime, he solicits, commands,
encourages, or requests the other person to commit it or aids or agrees to
aid or attempts to aid the other person in planning or committing it.




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evidence to prove a prima facie case of conspiracy or conspiratorial liability.

The crime of conspiracy, which is interrelated to conspiratorial liability for

the underlying crimes, is statutorily defined as follows,

      A person is guilty of conspiracy with another person or persons
      to commit a crime if with the intent of promoting or facilitating
      its commission he:

      (1) agrees with such other person or persons that they or one or
      more of them will engage in conduct which constitutes such
      crime or an attempt or solicitation to commit such crime; or

      (2) agrees to aid such other person or persons in the planning or
      commission of such crime or of an attempt or solicitation to
      commit such crime.

18 Pa.C.S. § 903.

      In the context of this matter, the Commonwealth was required to

establish a prima facie case that Appellee conspired to cause serious bodily

injury under circumstances manifesting an extreme indifference to the value

of human life. See 18 Pa.C.S. § 2702(a)(1). In addition, it needed to prove

a prima facie case that Appellee conspired to both cause bodily injury and

recklessly place another in danger of death or serious bodily injury.       18

Pa.C.S. § 2701(a)(1) (simple assault); 18 Pa.C.S. § 2705 (REAP). Finally,

the Commonwealth had to provide sufficient prima facie evidence that

Appellee conspired to possess an instrument of crime with intent to employ

it criminally.   18 Pa.C.S. § 907(a); Commonwealth v. Jones, 416 A.2d

539, 541 (Pa.Super. 1979) (defendant can be guilty of inchoate crime of PIC

as a conspirator).

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     Viewing the evidence in a light most favorable to the Commonwealth,

and mindful that a prima facie case is a low threshold of proof, we find that

the trial court committed an error of law in quashing the charges. Here, the

evidence and its reasonable inferences are clear. Appellee had a fight with

the victim. He and Mr. Heard were then seen in the immediate area of Mr.

Smith’s home within two weeks of the prior incident.      Ms. Amos testified

that, in the twenty-three years she lived in the neighborhood, the first time

she saw Appellee was the day of the fight. The day of the shooting was the

only time she saw Mr. Heard.

     Appellee was present when Mr. Heard took a picture of Ms. Amos’

home, located next door to the victim’s house. Appellee was present when

Ms. Amos repeatedly told him and Mr. Heard that they were at the wrong

house. Mr. Heard expressly told Ms. Amos not to be in her home while he

was seated directly next to Appellee.   Appellee’s vehicle was captured on

video tape with a person matching Mr. Heard’s description talking to the

occupant of that vehicle in the vicinity of Mr. Smith’s home shortly before

the shooting. Mr. Heard, wearing the same clothes as the person who had

been seen talking to a person inside Appellee’s car, appeared on the front

steps of Ms. Amos’ house. After Ms. Amos again told Mr. Heard he was at

the wrong home, shots rang out next door and Mr. Smith suffered gunshot

wounds.   This evidence, and the reasonable inferences derived therefrom,




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establishes a prima facie case that Appellee conspired with Mr. Heard to

retaliate for the prior fight.

      Order reversed. Case remanded. Jurisdiction relinquished.

      President Judge Emeritus Bender, Judge Panella, Judge Shogan, Judge

Ott, Judge Stabile, and Judge Jenkins Join this Opinion.

      Judge Lazarus files a Concurring Opinion in which Judge Ott and Judge

Jenkins join.

      President Judge Gantman Concurs in the Result of this Opinion.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/9/2016




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