J-A27005-19



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                       Appellant               :
                                               :
                                               :
                v.                             :
                                               :
                                               :
    NNAKIARAH VEAL                             :   No. 2990 EDA 2018

              Appeal from the Order Entered September 13, 2018
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-0004211-2018


BEFORE:      BOWES, J., SHOGAN, J., and STRASSBURGER, J.*

MEMORANDUM BY BOWES, J.:                            FILED DECEMBER 18, 2019

        The Commonwealth of Pennsylvania appeals from the September 13,

2018 order quashing numerous charges against Appellee NNakiarah Veal. In

their briefing to this Court, all parties uniformly aver that this quashal was

entered in error.      For the reasons outlined herein, we concur.     Thus, we

reverse and remand.

        The trial court provided an apt summary of the underlying factual and

procedural history of this case:

        On May 9, 2018, [Appellee] was arrested and charged with
        aggravated assault, conspiracy, robbery, theft by unlawful taking,
        receiving stolen property (“RSP”), simple assault, recklessly
        endangering another person (“REAP”), and invasion of privacy.
        On June 7, 2018, a preliminary hearing was held before the
        Honorable William A. Meehan, Jr., in the Philadelphia Municipal
        Court. During that hearing, the victim testified that on April 30,
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*   Retired Senior Judge assigned to the Superior Court.
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       2018, [Appellee], along with two other women, attacked her in
       the employee parking lot of the Philadelphia International Airport.
       The victim stated that she was punched in the head “maybe 30
       times” during the course of the attack, that her head was slammed
       against her car, and that [Appellee] took her cell phone after the
       attack was over.[1] At the conclusion of the hearing, Judge
       Meehan ordered that all charges against [Appellee] be held for
       court.

       [Appellee] filed a Motion to Quash on August 21, 2018. On
       September 13, 2018, following a hearing, [the trial court] granted
       [Appellee’s] motion with respect to all charges except simple
       assault and REAP. On October 15, 2018, the Commonwealth filed
       a timely Notice of Appeal to the Superior Court of Pennsylvania.[2]
       On October 25, 2018, [the trial court] issued an order pursuant to
       Pa.R.A.P. 1925(b), requiring the Commonwealth to file a
       statement of matters complained of on appeal within twenty[-]one
       days.    On November 14, 2018, the Commonwealth filed a
       statement alleging that this Court erred in quashing the charges
        . . ., where the evidence presented at the preliminary hearing
       was sufficient to make out a prima facie case for each charge.

Trial Court Opinion, 12/13/18, at 1-2.

       Instantly, the Commonwealth asserts that the trial court’s quashal of

the aforementioned charges against Appellee was erroneous, claiming that it

properly presented a prima facie case with respect to all of the included

counts.    See Commonwealth’s brief at 7-8.        In its opinion pursuant to

Pa.R.A.P. 1925(a), the trial court concedes that it erred in quashing these

charges. Moreover, Appellee similarly concedes that the charges should not

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1 In addition to theft of the victim’s cell phone, Appellee was also accused of
misappropriating nude pictures of the victim from the cell phone, and posting
them on social media. See N.T. Preliminary Hearing, 6/7/18, at 13-14.

2   In its notice of appeal, the Commonwealth properly certified that this
interlocutory appeal stems from an order that “terminates or substantially
handicaps the prosecution” in accordance with Pa.R.A.P. 311(d) and 904(e).

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have been dismissed.       See Appellee’s brief at 5 (“After reviewing the

preliminary hearing and Motion to Quash notes of testimony, Appellee

concedes the lower court’s error and does not contest the Commonwealth’s

appeal.”).

       This matter pertains to the sufficiency of the Commonwealth’s evidence

in the context of a preliminary hearing, which presents a question of law. As

such, our scope of review is plenary and our standard of review is de novo.

See Commonwealth v. Meals, 912 A.2d 213, 218 (Pa. 2006). As a general

matter, “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.” Commonwealth v. Karetny, 880 A.2d 505, 513 (Pa. 2005).

       In the context of criminal cases, preliminary hearings serve a vital role

in safeguarding an individual’s right against unlawful arrest and detention by

the Commonwealth. See Commonwealth v. Weigle, 997 A.2d 306, 311

(Pa.   2010).     However,    “[t]he   preliminary   hearing   is   not   a   trial.”

Commonwealth v. McBride, 595 A.2d 589, 591 (Pa. 1991). To that end,

“[a]t the preliminary 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.”

Karetny, supra at 513-14. For our purposes, “[a] prima facie case consists

of evidence produced by the Commonwealth which sufficiently establishes that

a crime has been committed and that the accused is probably the perpetrator

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of that crime.” Commonwealth v. Lopez, 654 A.2d 1150, 1153 (Pa.Super.

1995). Critically, all such evidence presented at a preliminary hearing must

be accepted as true and viewed in the light most favorable to the

Commonwealth. Commonwealth v. Santos, 876 A.2d 360, 363 (Pa. 2005).

       After reviewing the evidence of record, we concur in the parties’

unanimity as to the trial court’s error in quashing these charges. With respect

to the charge of aggravated assault,3 the record bespeaks a coordinated attack

upon the victim by Appellee and her co-defendant4 that included thirty

repeated blows with closed fists to the victim’s head and face.      See N.T.

Preliminary Hearing, 6/7/18, at 10-12. This Court has previously held that

evidence of such repeated blows to the head establishes the necessary intent

sufficient to make out a prima facie case of aggravated assault.          See

Commonwealth v. Pandolfo, 446 A.2d 939, 941 (Pa.Super. 1982)

(“[R]epeated blows to a portion of the body as vital as the head exhibited an

intent to inflict serious bodily injury.”). Even if the victim did not suffer a

serious bodily injury in these circumstances, there was a prima facie

demonstration of intent to cause such injury.        See Commonwealth v.

Alexander, 383 A.2d 887, 889 (Pa. 1978) (“[T]he charge of aggravated

assault can be supported . . . if the evidence supports a finding that the blow


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3   18 Pa.C.S § 2702(a).

4   Co-defendant’s appeal is listed consecutively to this one at 2995 EDA 2018.



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delivered was accompanied by the intent to inflict serious bodily harm.”). The

trial court erred in quashing this charge.

       With respect to the charges of robbery,5 theft by unlawful taking,6 and

theft by receiving stolen property,7 the evidence in the certified record

indicates that Appellee and co-defendant utilized their coordinated attack as

a means to steal the victim’s cell phone.            Although the assault was not

perfectly contemporaneous with the resulting theft, our case law permits us

to draw the inference that the temporal proximity of the assault and the theft

sets forth a prima facie case that Appellee acted with the intent to put her

victim in fear of serious bodily injury such that she could not protect her

personal property. See Commonwealth v. Rodriguez, 673 A.2d 962, 966

(Pa.Super. 1996) (holding sufficient evidence to establish robbery where a

victim was assaulted and, thereafter, his pockets were “ransacked” after he

had    been    rendered      prostrate).       By   the   same   token,   Appellee’s

misappropriation of the cell phone and continued possession of it established

the charges of theft by unlawful taking and theft by receiving stolen property.

See Commonwealth v. Edney, 439 A.2d 752, 754 (Pa.Super. 1982)

(concluding evidence was sufficient with respect to charge of theft by unlawful

taking where appellant assaulted a bartender and then stole the money from

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5   18 Pa.C.S. § 3701(a)(1)(ii).

6   18 Pa.C.S. § 3921(a).

7   18 Pa.C.S. § 3925(a).

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his cash register); see also Commonwealth v. Lewis, 445 A.2d 798, 799-

800 (Pa.Super. 1982) (holding there is prima facie evidence of theft by

receiving stolen property where perpetrators mugged a victim, took his wallet,

and divided the proceeds afterwards). Quashing these charges was similarly

erroneous under the facts of this case.

      There also appears to be a prima facie case of conspiracy to commit

robbery in these circumstances. With regard to conspiracy, “[t]he existence

of such an agreement need not be demonstrated by direct evidence, but may

be inferentially established by showing the relation, conduct or circumstances

of the parties.” Commonwealth v. Lawson, 650 A.2d 876, 880 (Pa.Super.

1994). Here, the Commonwealth established that both Appellee and her co-

defendant worked in tandem during the assault and theft perpetrated upon

victim, or evidence of prior planning and in-the-moment coordination.

Moreover, the attack appeared calculated to result in the successful theft of

the victim’s property. Finally, Appellee and her co-defendant both arrived and

left the scene of the crime together. Under Pennsylvania law, this is sufficient

to present a prima facie case of conspiracy. See Commonwealth v. Olds,

469 A.2d 1072, 1075 (Pa.Super. 1983) (finding sufficient evidence of

conspiracy where perpetrators arrived together, acted with common purpose,

and left the scene of the crime together).

      With respect to the charge of invasion of privacy, the evidence

established that Appellee misappropriated nude pictures of the victim that

were saved on her stolen phone, and posted them publicly on the social media

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website Instagram. See N.T. Preliminary Hearing, 6/7/18, at 13-14. Such

conduct presents a prima facie case of invasion of privacy, where these

photographs were viewed by Appellee without the victim’s consent and,

thereafter, posted on the Internet.    See 18 Pa.C.S. §§ 7507.1(a)(1), (3).

Quashing this charge was also erroneous.

      Based on the foregoing, we agree with the collective conclusion of the

parties and the trial court. To wit, the trial court erred in quashing the above-

discussed charges against Appellee.

      Order reversed. Case remanded. Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/18/19




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