J-A20035-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :         PENNSYLVANIA
                       Appellant               :
                                               :
                v.                             :
                                               :
    BRADY COLLIN DISTEFANO                     :
                                               :
                                               :      No. 1785 WDA 2017

               Appeal from the Order Entered November 9, 2017
               in the Court of Common Pleas of Indiana County,
              Criminal Division at No(s): CP-32-CR-0000416-2017

BEFORE: BENDER, P.J.E., LAZARUS, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.:                           FILED OCTOBER 18, 2018

        The Commonwealth of Pennsylvania appeals from the Order granting

the pretrial Petition for Writ of Habeas Corpus (hereinafter “the Habeas Corpus

Petition”) filed by Brady Collin DiStefano (“DiStefano”), and dismissing the

criminal charges against DiStefano. We affirm in part and reverse in part, and

remand for further proceedings.

        At approximately 11:00 p.m. on Friday, February 3, 2017, DiStefano

and two of his fraternity brothers at the Indiana University of Pennsylvania,

Trevor King (“King”) and Caleb Zweig (“Zweig”),1 left a house party, located

on Wayne Avenue in Indiana, to walk back to their respective homes. See

N.T. (preliminary hearing), 4/16/17, at 3-6, 25-26. King’s testimony at the

preliminary hearing established the following. King, Zweig, and DiStefano had

all consumed alcohol during the evening. Id. at 4-5, 7, 22-24. DiStefano was

____________________________________________


1   DiStefano was 19 years old at the time, and Zweig was 20 years old.
J-A20035-18



“pretty intoxicated at the time and [exhibited] slurred speech[.]” Id. at 7.

King stated that Zweig “was also intoxicated but … not nearly as bad[,]” i.e.,

as DiStefano. Id. While the three young men were walking on the sidewalk,

King was approximately ten feet in front of DiStefano and Zweig. Id. at 26-

27. King then heard DiStefano and Zweig “bickering a little bit” and “arguing

about something[.]” Id. at 6, 27.

       King described what next transpired as follows:

       I heard them bickering and I turned around and they were [] in
       each other’s face and like what guys do [sic,] and they had their
       chests puffed out a little bit[,] and [] not really harming each
       other[,] [] just poking each other. I said to quit it and turned
       around and kept walking. And I watched for a few more seconds
       and I heard a scuffle[,] or heard something that got my
       attention[,] and I turned back around and I saw [that Zweig] was
       on his back[, i.e., on the sidewalk,] and [DiStefano] [] had his
       back toward me and was kneeling over top of [Zweig.2]

                                       ***

       [DiStefano] was on top [of Zweig]. [DiStefano’s] knees were on
       the pavement but his hands were on [Zweig’s] chest area and I
       didn’t really see. I didn’t take time to assess the situation[,] and
       I ran up and separated the two. And I threw [DiStefano] off of
       [Zweig].

Id. at 7-8 (footnote added, questions by the prosecutor and some paragraph

breaks omitted).        King stated that DiStefano did not resist when King

physically removed DiStefano from Zweig. Id. at 9, 32; but see also id. at

31-32 (wherein King stated that “it was pretty forceful[,] like I yanked

____________________________________________


2King further explained that DiStefano was “in between [Zweig’s] legs almost.
[DiStefano’s] knees were not on top of [Zweig,] but [DiStefano] was leaning
over [Zweig.]” N.T., 4/16/17, at 28.
                                           -2-
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[DiStefano] off of [Zweig].”). Notably, King stated that he did not see how

Zweig had fallen to the sidewalk. Id. at 27-28.

      King acknowledged that, in his police report, he had stated that he saw

DiStefano’s “hands [] up around [Zweig’s] neck or chest area[, but] I wasn’t

really sure.” Id. at 9. On cross-examination, King stated that DiStefano’s

“hands were on [Zweig,] but I don’t know if [DiStefano] was choking him or

not[,] and [DiStefano’s hands] were up here in this area[,]” (i.e., King

demonstratively motioned to his neck area). Id. at 28. King agreed that it

was “just seconds before [King] turned around[, i.e., upon hearing the

scuffle,] that [King] went over and [] helped, [and] pulled [DiStefano] off[.]”

Id. at 31. King stated that “the longest time that I guess [DiStefano] could

have had his hands on [Zweig] was like five or six seconds tops.” Id.

      King testified that the following transpired after he “threw [DiStefano]

off of” Zweig:

      So[,] immediately there was probably like two or three people that
      came around. [Zweig] was on his back on the sidewalk[,] and so
      I knelt down and I picked him up so [that] he was sitting up[,]
      and made sure he was still breathing [] okay[.] [] I didn’t check
      his pulse or anything but he was visibly breathing and his chest
      was rising and falling[,] and some weird noises [were] coming
      from his throat. So I just thought that he was okay enough[,] so
      I just held him up there. And then at that time[,] … [the] three
      [other students who] … came from across the street [] were
      helping me.

Id. at 9; see also id. at 36 (wherein King stated that Zweig was “groaning at

the time and moaning.”). King explained that although Zweig was breathing

at this time, he was unconscious. Id. at 10. King and three other individuals


                                     -3-
J-A20035-18



then picked Zweig up, carried him a few feet to lay him on the grass, and

positioned him on his side.    Id. at 34-35.    Someone called 911, and an

ambulance was dispatched to the scene. Id. at 11, 35.

      After the ambulance arrived, King looked around to locate DiStefano but

could not find him. Id. at 11-12. Accordingly, King began to walk back to

the house that was hosting the house party in an attempt to locate DiStefano,

and spotted him trying to re-enter the house from the rear stairs. Id. at 12.

King stated that the residents of the house would not permit DiStefano to

enter because the police had been called. Id. King said that he would assist

DiStefano to get back home, as he was significantly intoxicated. Id. at 13.

King testified that he noticed DiStefano had sustained a scrape to the side of

his head, but King did not know how this had occurred. Id. at 12, 30. King

eventually got DiStefano back to DiStefano’s apartment, at which time King

left and walked to his own apartment. Id. at 14.

      In the meantime, the ambulance rushed Zweig to the emergency room

at the Indiana Regional Medical Center. Id. at 76. However, despite lifesaving

efforts by medical professionals, Zweig died shortly after arriving. Id. Zweig’s

body was then released to the Indiana County Coroner’s Office for an autopsy.

Id.
      The police officer who had received the initial dispatch on the night of

the incident, Detective John Scherf (“Detective Scherf”) of the Indiana

Borough Police Department, also testified at the preliminary hearing.

Detective Scherf stated that shortly after Zweig’s death, he conducted


                                     -4-
J-A20035-18


interviews of potential witnesses that night. Id. at 76-77. On the morning

after the incident, Detective Scherf interviewed King at the police station, and

King gave a written and verbal statement. Id. at 78, 15-16.

        The trial court described what transpired after Detective Scherf had

conducted his interviews.3

        [Detective Scherf] proceeded to [DiStefano’s] apartment to
        investigate. When Detective Scherf arrived at [DiStefano’s]
        apartment in the early morning hours of February 4, 2017, a
        female answered the door, indicated [that DiStefano] was
        sleeping inside, and that he had been injured in a fight with
        someone named Caleb. Detective Scherf then applied for and was
        issued a search warrant for [DiStefano’s] apartment and cellular
        phone[,] as well as a warrant for [DiStefano’s] person. Shortly
        thereafter, [DiStefano] was transported to the Indiana Borough
        Police Station to be interviewed. [DiStefano] was later charged
        with aggravated assault[4] and[,] after the receipt of Zweig’s
        autopsy results, with criminal homicide.[5]

Trial Court Opinion and Order, 11/13/17, at 1-2 (footnotes added, some

capitalization omitted).

        The forensic pathologist who performed the autopsy on Zweig, Ashley

Zezulak, M.D. (“Dr. Zezulak”), also testified at the preliminary hearing. The

trial court summarized Dr. Zezulak’s testimony as follows:

        When asked if she was able to render an opinion on the cause of
        death, she replied, “[s]omewhat of an opinion. More from an
        investigative standpoint[,] seeing that I didn’t find any significant
____________________________________________


3The trial court derived its factual recitation from the Affidavit of Probable
Cause.

4   18 Pa.C.S.A. § 2702(a)(1).

5   Id. § 2501(a).


                                           -5-
J-A20035-18


       anatomical findings during the autopsy.” ([N.T., 4/16/17,] at
       51[]). Dr. Zezulak stated that[, in her autopsy report,] she
       indicated [Zweig’s] cause of death[6] was, “[a]sphyxiation,
       secondary to presumed chokehold and chest compression.” ([Id.]
       at 52[; see also id. at 53-54 (wherein Dr. Zezulak explained that
       “[i]t is not uncommon for us to have cases where we do not have
       any certain anatomic findings[,] when we work with the police and
       the coroners and the story evolves. It is more of what we call a
       diagnosis of exclusion.”)]). She stated that the only trauma she
       found was a scalp hemorrhage, but that it was not large enough
       to have caused [Zweig’s] death, and she found no evidence
       consistent with a chokehold or chest compression. [Id. at 57-
       58.7] She further testified that there was nothing medically or
       pathologically consistent with a mechanical strangulation,
       asphyxiation, chest compression, or chokehold. ([Id.] at 74[]).
       In a case where a chokehold is applied, Dr. Zezulak opined that it
       would probably take five to ten seconds to lose consciousness,
       ([id.] at 71[]), and within minutes[,] irreversible brain damage
       would occur. ([Id.]).

             When asked about how she arrived at her opinion, Dr.
       Zezulak indicated that she had relied on information given to her
       by Jerry Overman [(“Overman”)], the Indiana County Coroner.
       ([Id.] at 66[]). According to Overman, [Dr. Zezulak recounted,
       Zweig] had been found unresponsive after a physical assault.
       ([Id.] at 67[]). Dr. Zezulak admitted that she based her opinion
       of the cause of death solely on what she had been told by
       investigators. ([Id.] at 57). When asked about any supporting
       findings used in her opinion, she stated, “[f]or sure I have no
       physical evidence.” ([Id.] at 62[]).




____________________________________________


6Dr. Zezulak stated that, based on her autopsy, Zweig “was in perfect physical
health” prior to his death. N.T., 4/16/17, at 50; but see also id. at 68
(wherein Dr. Zezulak conceded on cross-examination that she had not
received any information that would “involve any pre-existing medical
conditions relative to [] Zweig.”).

7However, Dr. Zezulak additionally stated that “signs do not always have to
be present for chokeholds or chest compressions.” N.T., 4/16/17, at 58.


                                           -6-
J-A20035-18


Trial Court Opinion and Order, 11/13/17, at 3-4 (footnotes and emphasis

added).

       At the conclusion of the preliminary hearing,8 the Magisterial District

Judge found that the Commonwealth had established a prima facie case for

criminal homicide and aggravated assault, and therefore bound the charges

over for court.

       On September 1, 2017, DiStefano filed the Habeas Corpus Petition,9

asserting therein that both charges against him must be dismissed because

the Commonwealth had failed to present sufficient evidence to establish a

prima facie case. The Commonwealth filed a Brief in opposition to DiStefano’s

Petition, after which the trial court conducted a hearing on the matter on

October 3, 2017. By an Order entered on November 9, 2017 (hereinafter “the

Habeas Corpus Order”), the trial court granted the Habeas Corpus Petition and

dismissed both charges.        The Commonwealth then timely filed a Notice of

Appeal, followed by a court-ordered Pa.R.A.P. 1925(b) Concise Statement of

errors complained of on appeal.

       The Commonwealth now presents the following issue for our review:

       Whether the trial court erred as a matter of law in granting
       [DiStefano’s] Motion for Habeas Corpus[,] when the trial court
       ruled that the Commonwealth failed to establish its prima facie
____________________________________________


8No other witnesses testified at the preliminary hearing aside from King,
Detective Scherf, and Dr. Zezulak. The only exhibit introduced at the hearing
was Dr. Zezulak’s autopsy report.

9DiStefano also filed a Motion to suppress his statements made to the police,
which is not relevant to the instant appeal.
                                           -7-
J-A20035-18


     case with regard to the charges of criminal homicide and
     aggravated assault[,] and the trial court weighed the evidence and
     examined the credibility of witnesses[?]

Brief for the Commonwealth at 5 (some capitalization omitted).

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

whether the Commonwealth has sufficient evidence to establish a prima facie

case.”   Commonwealth v. Dantzler, 135 A.3d 1109, 1112 (Pa. Super.

2016). This Court has explained that

    [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 and that the accused is probably the
    perpetrator of that crime. The Commonwealth need not prove the
    defendant’s guilt beyond a reasonable doubt.            Rather[,] the
    Commonwealth must show sufficient probable cause that the
    defendant committed the offense, and the evidence should be such
    that if presented at trial, and accepted as true, the judge would be
    warranted in allowing the case to go to the jury. 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.

Commonwealth v. Starry, 2018 PA Super 266, at *12 (Pa. Super. 2018)

(citation omitted); see also id. at *8 (stating that “the Commonwealth can

establish a prima facie case by wholly circumstantial evidence.” (citation

omitted)). “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. To meet its burden, the

Commonwealth may utilize the evidence presented at the preliminary hearing




                                    -8-
J-A20035-18


and also may submit additional proof.”10               Dantzler, 135 A.3d at 1112

(citations and quotation marks omitted)).              Additionally, our Pennsylvania

Supreme Court has explained that “where the Commonwealth’s case relies

solely upon a tenuous inference to establish a material element of the charge,

it has failed to meet its burden of showing that the crime charged was

committed.”     Commonwealth v. Wojdak, 466 A.2d 991, 997 (Pa. 1983)

(emphasis in original).

       Our standard of review is as follows: “When reviewing a trial court’s

decision to grant a habeas corpus petition, we will not reverse the trial court’s

decision absent a manifest abuse of discretion.” Commonwealth v. Ruby,

838   A.2d    786,    788    (Pa.   Super.     2003)    (citation   omitted).   “[T]he

Commonwealth’s prima facie case for a charged crime is a question of law[,]

as to which an appellate court’s review is plenary.” Dantzler, 135 A.3d at

1112 (citation omitted).

       The Crimes Code defines criminal homicide as follows:              “A person is

guilty of criminal homicide if he intentionally, knowingly, recklessly or

negligently causes the death of another human being.”                     18 Pa.C.S.A.

§ 2501(a). “Causation is an essential element of the offense of homicide ….

Tort theory of causation, the proximate cause, is insufficient to impose




____________________________________________


10In the instant appeal, the Commonwealth did not submit any proof in
addition to the evidence adduced at DiStefano’s preliminary hearing.
                                           -9-
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criminal responsibility.” Commonwealth v. Cheatham, 615 A.2d 802, 805

(Pa. Super. 1992) (internal citation omitted).

    The Crimes Code defines aggravated assault, in relevant part, as follows:

    § 2702. Aggravated assault.

      (a) Offense defined. — A person is guilty of 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).     “Serious bodily injury” is defined 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.” Id. § 2301. Additionally,

      [w]here the victim suffers serious bodily injury, the
      Commonwealth is not required to prove specific intent. The
      Commonwealth need only prove the defendant acted recklessly
      under circumstances manifesting an extreme indifference to the
      value of human life. For the degree of recklessness contained in
      the aggravated assault statute to occur, the offensive act must be
      performed under circumstances which almost assure that injury or
      death will ensue.

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

banc) (emphasis, citations, brackets, and paragraph breaks omitted).

      We will first address whether the trial court properly determined that

the Commonwealth failed to establish a prima facie case of criminal homicide.

In support of its ruling, the trial court stated in its Opinion and Order as

follows:


                                     - 10 -
J-A20035-18


       To be guilty of criminal homicide as defined by statute, one must
       have caused the death of another human being. In this matter,
       [Dr. Zezulak] admitted that there is no physical evidence to
       support the finding of the cause of [Zweig’s] death. Additionally,
       there is no evidence from the eyewitness, King, that [DiStefano]
       choked Zweig[,] or that King was even aware of how Zweig ended
       up on the ground. Furthermore, King testified that he pulled
       [DiStefano] from Zweig within five or six seconds at the most[,]
       and there was no struggle between himself and [DiStefano] when
       he did so. Absent any evidence indicating the cause of Zweig’s
       death or that [DiStefano had] acted in a manner so as to
       asphyxiate Zweig, there is nothing to show that [DiStefano]
       caused the death of another human being.

Trial Court Opinion and Order, 11/13/17, at 4-5.

       The Commonwealth counters that the evidence presented at the

preliminary hearing was sufficient for a prima facie showing that DiStefano

caused Zweig’s death.         See Brief for the Commonwealth at 37-45.      The

Commonwealth points out that Dr. Zezulak opined that the cause of death

was asphyxiation. Id. at 40. The Commonwealth further emphasizes that

“Dr. Zezulak [] testified that ‘[anatomical findings] don’t always have to be

present, signs do not always have to be present for chokeholds or chest

compressions.’” Id. at 40-41 (quoting N.T., 4/16/17, at 57-58). According

to the Commonwealth,

       because there were no other indicators to explain why an
       otherwise healthy [20]-year-old male suddenly died following a
       physical altercation with [DiStefano,] wherein [Zweig] was made
       unconscious, Dr. Zezulak was able to use a technique she
       described as a “diagnosis of exclusion”[11] to determine his cause
____________________________________________


11 See N.T., 4/16/17, at 53-54 (wherein Dr. Zezulak testified that “[i]t is not
uncommon for us to have cases where we do not have any certain anatomic
findings[,] when we work with the police and the coroners and the story
evolves. It is more of what we call a diagnosis of exclusion.”).
                                          - 11 -
J-A20035-18


        of death as asphyxiation. … [I]t is clear that [Dr. Zezulak]
        followed the appropriate and arguably only available method to
        determine such a cause of death.

Brief for the Commonwealth at 42-43 (footnote added). The Commonwealth

contends that the trial court failed to (1) consider Dr. Zezulak’s foregoing

testimony; and (2) view it in the light most favorable to the Commonwealth,

as it was required to do. Id. at 43; see also id. at 49-50 (asserting that “the

trial court essentially required the Commonwealth to prove beyond a

reasonable doubt that [DiStefano] committed the crimes charged.”).

        Additionally,   the    Commonwealth       argues    that    “the   lower     court

erroneously made credibility determinations regarding [] King and Dr.

Zezulak’s testimony as to the facts surrounding [Zweig’s] death[,] as well as

the medical finding regarding the cause of death.” Id. at 45; see also id. at

23 (pointing out that this Court has held that “it is inappropriate for [a] trial

court    to   make      credibility   determinations   in   deciding       whether    the

Commonwealth established a prima facie case[.]”                    Id. at 23 (quoting

Commonwealth v. Landis, 48 A.3d 432, 448 (Pa. Super. 2012) (en banc))).

        We conclude that even viewing the evidence, and all reasonable

inferences to be derived therefrom, in a light most favorable to the

Commonwealth, the Commonwealth failed to establish a prima facie case of

criminal homicide.       In so holding, the following testimony adduced at the

preliminary hearing is particularly noteworthy. Dr. Zezulak admitted that she

had based her opinion of Zweig’s cause of death solely upon what she had

been told by the police concerning Zweig’s altercation with DiStefano. N.T.,

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J-A20035-18


4/16/17, at 57; see also id. at 65 (wherein Dr. Zezulak agreed with the

statement that “without the information provided to [her] by the police, [she]

wouldn’t be able to give any finding of [Zweig’s] cause of death that would be

based on pathological or medical independent findings.”]). Additionally, Dr.

Zezulak stated that her opinion as to the cause of death being “[a]sphyxiation,

secondary to presumed chokehold and chest compression[,]” was only

“[s]omewhat of an opinion[,] … seeing that I didn’t find any significant

anatomical findings during the autopsy.”           Id. at 52, 51 (emphasis

added); see also id. at 57-58 (wherein Dr. Zezulak stated that she had not

found any evidence consistent with a chokehold, asphyxiation or chest

compression).   Dr. Zezulak explained that the only trauma she found on

Zweig’s body was a scalp hemorrhage, which could not have caused Zweig’s

death. Id. at 52.

      The only eyewitness to the altercation, King, stated that although he

believed that he saw DiStefano’s “hands [] up around [Zweig’s] neck or chest

area[,] I wasn’t really sure.” Id. at 9 (emphasis added); see also id. at

29 (wherein King clarified that “I don’t want to say this for sure because … I

didn’t take the time to assess the situation[,] and I just saw [DiStefano’s]

hands in the general area.” (emphasis added)). At no time did King state

that he saw DiStefano choking Zweig.      See, e.g., id. at 28 (wherein King

explained that that DiStefano’s “hands were on [Zweig,] but I don’t know if

[DiStefano] was choking him or not[.]”). Moreover, King testified that (1) he

did not see how Zweig had fallen to the ground, id. at 27-28; (2) it was “just

                                    - 13 -
J-A20035-18


seconds before [King] turned around[, i.e., while he was walking in front of

Zweig and DiStefano and heard a scuffle,] that [King] went over and … pulled

[DiStefano] off” of Zweig, id. at 31; and (3) “the longest time that …

[DiStefano] could have had his hands on [Zweig] was [] five or six seconds

tops.” Id.

       In light of the foregoing testimony, the Commonwealth’s case for

criminal homicide relied upon only a tenuous inference that DiStefano was the

cause of Zweig’s death, which is not enough to establish a prima facie case.

See Wojdak, supra; Starry, supra (observing that prosecutorial suspicion

and conjecture are not evidence and are unacceptable as such); see also

Commonwealth v. Rementer, 598 A.2d 1300, 1306 (Pa. Super. 1991)

(explaining that “the defendant’s conduct must bear a direct and

substantial relationship to the fatal result in order to impose criminal

culpability” for homicide (emphasis added)). Thus, the trial court properly

exercised its discretion in granting DiStefano habeas corpus relief on the

charge of criminal homicide.12




____________________________________________


12We further note that we cannot agree with the Commonwealth’s claim that
the trial court improperly made credibility findings relative to the evidence
presented at the preliminary hearing. Rather, a review of the trial court’s
Opinion and Order reveals that it was the lack of evidence linking DiStefano
to Zweig’s death, not an assessment of the credibility/weight of witness
testimony, that led the court to grant DiStefano habeas corpus relief.
                                          - 14 -
J-A20035-18


      However, concerning the aggravated assault charge against DiStefano,

we determine that the Commonwealth, in fact, established a prima facie case.

The Commonwealth contends that the evidence

      showed that [DiStefano] engaged [Zweig] physically, that
      [DiStefano] gained [the] advantage in this altercation[,] and
      ended up on top of [Zweig], that [Zweig] was unconscious when
      [DiStefano] was pulled off of [Zweig], that [Zweig] suffered a
      blunt force trauma to his skull during the assault, and that [Zweig]
      died within hours of the assault.

      The Commonwealth vehemently submits that this evidence is
      more than enough from which to infer that, at minimum,
      [DiStefano], in attacking and putting his hands around the neck
      and chest area of [Zweig] while on top of him, acted “recklessly
      under circumstances manifesting extreme indifference to the
      value of human life.” [18 Pa.C.S.A. § 2702(a)(1).]

Brief for the Commonwealth at 35.

      DiStefano counters that no prima facie case for aggravated assault was

established because:

      [t]here is no evidence that Zweig suffered a serious bodily
      injury[;] in fact, the only injury reported by Dr. Zezulak was a
      scalp hemorrhage that was not severe enough to cause death.
      Absent any evidence of how [DiStefano] and Zweig came to be
      down on the ground[,] or that [DiStefano] choked or otherwise
      physically harmed Zweig, [DiStefano] cannot be considered to
      have attempt[ed] to cause [Zweig,] or have caused [Zweig]
      serious bodily injury.

Brief for Appellee at 20-21; see also Trial Court Opinion and Order, 11/13/17,

at 5 (setting forth identical language as DiStefano’s above argument in

support of its ruling). We disagree.

      King recalled (1) observing DiStefano and Zweig arguing and “poking

each other[,]” N.T., 4/16/17, at 7-8; (2) turning back around to continue


                                       - 15 -
J-A20035-18


walking, and then hearing a “scuffle” ensue behind him, id. at 8; (3)

immediately thereafter, seeing Zweig on his back on the sidewalk,

unconscious, with DiStefano kneeling and leaning over his body, id. at 8, 29;

and (4) observing DiStefano’s hands on Zweig’s body in the general area of

his neck. Id. Moreover, though King did not see how Zweig was knocked to

the sidewalk, given the fact that DiStefano and Zweig had engaged in a

“scuffle” immediately preceding this, it could be reasonably inferred from this

evidence that Zweig got knocked to the sidewalk as a result of the altercation.

See Starry, supra (stating that inferences reasonably drawn from the

evidence of record that would support a verdict of guilty are to be given effect,

and that the Commonwealth can establish a prima facie case by wholly

circumstantial evidence). Additionally, viewed in a light most favorable to the

Commonwealth, DiStefano’s conduct met the “recklessness” element of the

aggravated assault statute, insofar as it almost assured that Zweig would

sustain an injury. See Patrick, supra. Indeed, Zweig suffered a blunt force

scalp hemorrhage from the altercation.13           Furthermore, after Zweig was

knocked to the sidewalk, DiStefano pounced on Zweig, laid his hands on

Zweig, and continued the altercation until King pulled DiStefano off, leaving

____________________________________________


13 We determine that the evidence established that Zweig suffered “serious
bodily injury.” He sustained a scalp hemorrhage, was rendered unconscious,
and died shortly after the altercation. Accord Commonwealth v. Burton, 2
A.3d 600, 600-01, 603 (Pa. Super. 2010) (en banc) (holding that the victim
sustained serious bodily injury where he was rendered unconscious from a
single blow to the head, his eyes had rolled back into his head, and blood was
coming out of his nose and was on the back of his head).
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Zweig unconscious. Based on this evidence, the Commonwealth established

a prima facie case of aggravated assault. Accord Patrick, 933 A.2d at 1047

(holding that the Commonwealth established a prima facie case for

aggravated assault where the defendant made a surprise attack on victim,

delivering a single punch to his head that knocked him to the ground,

whereupon his head hit the sidewalk, resulting in serious injuries).

      Based on the foregoing, we affirm the Habeas Corpus Order, in part,

insofar as it dismissed the criminal homicide charge against DiStefano.

However, we reverse the Habeas Corpus Order to the extent that it dismissed

the aggravated assault charge, and remand for further proceedings.

      Order affirmed in part and reversed in part. Case remanded for further

proceedings consistent with this Memorandum. Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/18/2018




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