J-S46008-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                          IN THE SUPERIOR COURT OF
                                                            PENNSYLVANIA
                            Appellant

                       v.

DARREN BURCH

                            Appellee                       No. 1219 EDA 2014


                     Appeal from the Order March 18, 2014
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0000329-2014


BEFORE: MUNDY, J., OLSON, J., and MUSMANNO, J.

MEMORANDUM BY MUNDY, J.:                                    FILED JULY 21, 2015

        The Commonwealth appeals1 from the March 18, 2014 order, denying

its motion to refile certain charges stemming from a robbery in Philadelphia,

after the municipal court dismissed the same against Appellee, Darren

Burch.2       After   careful   review,    we   reverse   and   remand   for   further

proceedings.

        The trial court summarized the relevant factual history of this case as

follows.

                   At the preliminary hearing in this case, Elliott
              Weiss testified that he was with a friend on the 2100
____________________________________________
1
 The Commonwealth has certified in its notice of appeal that the trial court’s
order terminates or substantially handicaps its prosecution pursuant to
Pennsylvania Rule of Appellate Procedure 311(d).
2
    We note that Appellee has elected not to file a brief in this matter.
J-S46008-15


          block of Catherine Street in Philadelphia at
          approximately 10:15 p.m. on December 1, 2013[,]
          when two males came up from behind. One man put
          his arm around Mr. Weiss’ neck, placed a gun to his
          head and demanded that he give them his cell
          phone. Mr. Weiss complied by reaching into his coat
          pocket and handing over the phone. The assailants
          then turned around and took a couple steps before
          demanding to see Mr. Weiss’ wallet.       Mr. Weiss
          immediately opened his wallet, took out the cash and
          handed it to one of the men.

                 When the robbers left, Mr. Weiss called “911”
          from his friend’s cell phone. In that call he described
          both of his assailants as clean shaven. He estimated
          one man’s height as 5’10” and the other as 5’7”.
          Philadelphia Police Officer Carmen Palmiero testified
          that the only description he received in the radio call
          about the robbery was two black males in their mid-
          twenties wearing dark clothing. Although Mr. Weiss
          identified [Appellee] in a one-on-one identification
          procedure shortly after the incident, when asked by
          the prosecutor if he saw any of his assailants in the
          courtroom, he hesitated for approximately 10 to 15
          seconds and then said he was not sure. On cross-
          examination, Mr. Weiss reiterated that he did not
          know if [Appellee] was one of the men who robbed
          him. Further, when counsel pointed to [Appellee]’s
          full mustache, beard and side burns, facial hair that
          he had at the time of his arrest, Mr. Weiss agreed
          that had [Appellee] been the robber he would not
          have described him as clean shaven.

                 Officer Palmiero was responding to the radio
          call of the robbery when he observed two black
          males walking in the area of the 1900 block of
          League Street.      The men faced in the officer’s
          direction and then made a quick left onto another
          block where Officer Palmiero observed [Appellee]
          crouched down between two parked cars stuffing an
          item into a backpack. Officer Palmiero drew his
          weapon and apprehended [Appellee] after a quick
          foot pursuit. A search of the bag revealed a loaded
          semiautomatic Tec-9. The officer admitted that he

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              had no information that either perpetrator had a
              backpack or used a Tec-9 in the robbery. No phone,
              cash or any other proceeds from the robbery were
              found in [Appellee]’s possession.

                    Philadelphia Police Officer Mark Palazzi pursued
              the other male (Hickman) eastbound on the 1900
              block of League Street. During the chase, the officer
              observed that male discard a black handgun in front
              of 1905 League Street. As Officer Palazzi continued
              to chase this male around the corner he saw him
              discard an iPhone in a red case. Mr. Weiss was
              brought to the location where this male was finally
              apprehended and identified him as one of the
              robbers.

Trial Court Opinion, 1/16/15, at 1-3.

       The Commonwealth sought to charge Appellee with one count each of

robbery, criminal conspiracy, possession of a firearm, firearms not to be

carried without a license, theft by unlawful taking, receiving stolen property,

carrying firearms in public in Philadelphia, possession of an instrument of a

crime (PIC), simple assault, and recklessly endangering another person.3

The municipal court conducted a preliminary hearing on January 9, 2014. At

the conclusion of said hearing, the municipal court dismissed all charges

against Appellee for lack of evidence, except for the charges of firearms not

to be carried without a license and PIC.          On January 16, 2014, the

Commonwealth filed a notice of its intent to refile the entire original criminal



____________________________________________
3
  18 Pa.C.S.A. §§ 3701(a)(1)(i), 903, 6110.2(a), 6106(a)(1), 3921(a),
3925(a), 6108, 907(a), 2701(a) and 2705, respectively.



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complaint, including the dismissed charges, in the trial court. 4    The trial

court treated the Commonwealth’s notice of its intent, as a motion to refile

the dismissed charges, and denied the same on March 18, 2014. On April

17, 2014, the Commonwealth filed a timely notice of appeal.5

       On appeal, the Commonwealth raises one issue for our review.

              Properly viewed in the light most favorable to the
              Commonwealth, did the evidence showing that two
              witnesses identified [Appellee] minutes after the
              robbery near the crime scene establish a prima facie
              case of robbery, conspiracy, and related offenses?

Commonwealth’s Brief at 4.

       We begin by noting our well-settled standard of review. A preliminary

hearing is similar to a pre-trial habeas corpus hearing. Commonwealth v.

Black, 108 A.3d 70, 77 (Pa. Super. 2015) (citation omitted). The purpose

of such a hearing is to determine whether the Commonwealth had made out

a prima facie case for the offenses charged. Commonwealth v. Jackson,

849 A.2d 1254, 1257 (Pa. Super. 2004) (citation omitted). “A prima facie

case consists of evidence, read in the light most favorable to the

Commonwealth, that sufficiently establishes both the commission of a crime


____________________________________________
4
  We note that the municipal court’s decision was non-appealable as this
Court has held an attempt at reinstituting the dismissed charges is the
Commonwealth’s only recourse. Commonwealth v. Carbo, 822 A.2d 60,
64 (Pa. Super. 2003) (en banc) (citation omitted).
5
 The Commonwealth and the trial court have complied with Pennsylvania
Rule of Appellate Procedure 1925.



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and that the accused is probably the perpetrator of that crime.”         Black,

supra. Proof beyond a reasonable doubt is not required. Id.

            We have held that 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. Further, since a trial court
            must view the evidence in the light most favorable to
            the Commonwealth when ruling upon a petition for
            writ of habeas corpus, it is inappropriate for the trial
            court to make credibility determinations in deciding
            whether the Commonwealth established a prima
            facie case.

Id. Similar to an order granting a habeas petition, we will reverse such an

order only if the trial court committed a manifest abuse of discretion.

Carbo, supra at 63.

      In this case, the trial court denied the Commonwealth’s motion to

refile the previously dismissed charges based on the fact that there was

insufficient evidence to establish identity. Trial Court Opinion, 3/26/15, at 4.

The Commonwealth counters in its brief that it did present sufficient

evidence of Appellee’s identity to establish its prima facie case. Specifically,

the Commonwealth avers that it met its burden primarily because when “the

victim was brought to [Appellee]’s location, he immediately identified

[Appellee] as one of his assailants.”     Commonwealth’s Brief at 15.       The

Commonwealth further points out that an eyewitness also identified Appellee

as one of the perpetrators. Id. at 15-16.




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      At the preliminary hearing, Weiss testified that at the time he made

his initial identification of Appellee on the night of the offenses, he identified

Appellee as one of his assailants, and that he was entirely sure of said

identification at the time. N.T., 1/9/14, at 9. In addition, Officer Palmiero

testified and corroborated that Weiss “immediately” identified Appellee as

one of his assailants.   Id. at 26.   Officer Palmiero also stated that Weiss’

female friend, who was with him at the time of the robbery, upon seeing

Appellee, “started hysterically crying saying, yes, that’s him[.]” Id. at 27.

      The trial court acknowledged the above testimony.                 Trial Court

Opinion, 1/16/15, at 4. However, the trial court denied the Commonwealth’s

motion to refile the charges based on the following rationale.

                    Here, the victim of the robbery testified that he
            was sure his assailants were clean shaven. This
            testimony was at odds with the fact that [Appellee]
            had a full mustache, beard and side burns when he
            was arrested shortly after the incident. The incident
            took place at night and happened very quickly.
            Although Mr. Weiss identified [Appellee] in an on the
            street      one-on-one       identification    procedure
            approximately fifteen minutes after the robbery, he
            was unable to identify him at the preliminary hearing
            and repeatedly stated that he was not at all sure if
            [Appellee] was one of the men who robbed him.
            Further, [Appellee] was not in possession of any of
            the proceeds of the robbery when arrested, and the
            firearm in his possession was not the weapon used in
            the incident.     The fact that he was in unlawful
            possession of a firearm at the time [the] police
            approached him provides an independent reason for
            his flight from the officers.

Id.


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      After careful review of the certified record, we conclude the trial court

erred in denying the Commonwealth’s motion.          The trial court’s cardinal

reason for denying the Commonwealth’s motion was that Weiss’ in-person

identification on the night of the robbery contradicted the fact that “he was

unable to identify him at the preliminary hearing.”       Id.   The trial court

further stated that Weiss believed his assailants to be clean shaven, but

Appellee was not. Id. Respectfully, in our view, the only way the trial court

could reach this conclusion was by weighing the evidence, i.e. the two

identifications against one another.     Stated another way, the trial court

essentially credited Weiss’ lack of identification at the preliminary hearing

and rejected his identification on the night of the incident. It is axiomatic

that “it is inappropriate for the trial court to make credibility determinations

in deciding whether the Commonwealth established a prima facie case.”

Black, supra; see also Commonwealth v. Marti, 779 A.2d 1177, 1180

(Pa. Super. 2001) (stating, “the weight and credibility of the evidence are

not factors at [the pre-trial] stage, and the Commonwealth need only

demonstrate sufficient probable cause to believe the person charged has

committed the offense[]”).     The trial court essentially made a credibility

determination, which is exclusively the role of the fact-finder at a trial. As a

result, we conclude the trial court abused its discretion when it denied the

Commonwealth’s motion to refile the charges. Carbo, supra.




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J-S46008-15


     Based on the foregoing, we conclude the trial court erred when it

denied the Commonwealth’s motion to refile the charges that were

dismissed by the municipal court.   Accordingly, the trial court’s March 18,

2014 order is reversed, and the case is remanded for further proceedings,

consistent with this memorandum.

     Order reversed. Case remanded. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/21/2015




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