J-S69045-16


NON -PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA,                 1    IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                          Appellant

                     v.

MELISSA C. MILLER,

                          Appellee                     No. 443 MDA 2016


               Appeal from the Order Entered February 29, 2016
                in the Court of Common Pleas of Centre County
               Criminal Division at No.: CP- 14 -CR- 0001662 -2015


BEFORE:     STABILE, J., DUBOW, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                            FILED JANUARY 17, 2017

        The Commonwealth appeals from the order of February 29, 2016,

which granted, with prejudice, the motion of Appellee, Melissa            C.   Miller, to

quash or dismiss the charges against her.'        On appeal, the Commonwealth

argues that the trial court erred in sua sponte dismissing the action because

it believed that the Commonwealth had not made         a       prima facie case. We

agree.    Accordingly, we reverse and remand for trial.

        We take the underlying facts and procedural history in this matter

from our independent review of the certified record. On October 15, 2013,



*   Retired Senior Judge assigned to the Superior Court.

' The trial court quashed charges of theft of leased property,        18 Pa.C.S.A. §
3932(a), and receiving stolen property, 18 Pa.C.S.A.       §   3925(a).
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Appellee entered into     a   lease agreement with Aaron's Leasing and Sales in

College Township, Centre County. (See N.T. Preliminary Hearing, 10/28/15,

at 7).     Pursuant to the agreement, Appellee received        a   bedroom set, sofa,

and love seat; in return, she agreed to make payments until she fully

purchased the items in July 2016.          (See id. at 5, 10).       Appellee ceased

making payments in May 2015, leaving her in arrears.                (See id. at   5 -6).


Attempts to negotiate     a   new payment plan proved unsuccessful.        (See id. at

6 -7).

         On September 29, 2015, the Commonwealth filed a criminal complaint

and charged Appellee with theft of leased property and receiving stolen

property.     A   preliminary hearing took place on October 28, 2015.          At the

hearing, Frank Carmines, the general manager at Aaron's Leasing and Sales,

testified with respect to the lease and Appellee's failure to pay. (See id. at

4 -7).   Mr. Carmines stated     that he sent several certified letters to Appellee

requesting payment and personally spoke with her to try to resolve the

matter.     (See id. at 18).     Mr. Carmines also testified   that he had been to

Appellee's home and the furniture was in poor condition, and informed

Appellee that, because of this, Appellee could not return it.          (See id. at 6,

12 -13).     At the hearing, Appellee did not contest the adequacy of the

Commonwealth's evidence but instead argued that                a   binding arbitration

clause contained within the lease precluded criminal prosecution.            (See id.




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at 11 -12, 19 -20).        At the conclusion of the preliminary hearing, the

magisterial district judge bound the case over for trial. (See id. at 20).

       On    November       19,   2015,   the    Commonwealth           filed   a    criminal

information charging Appellee with theft of leased property and receiving

stolen property.       (See Criminal Information, 11/19/15, at 1). On December

28, 2015, Appellant filed an omnibus pre -trial motion.                   In the motion,

Appellee sought to quash or dismiss the criminal information. (See Omnibus

Pre -Trial   Motion,    12/28/15, at 2).        Appellee did     not argue that the

Commonwealth had not made           a   prima facie case, but maintained that the

existence of the arbitration clause in the lease agreement precluded criminal

prosecution. (See id. at 2 -3).

       Argument on the motion took place on February 12, 2016.                             No

witnesses testified at the argument. The sole issue raised by Appellee was

whether the arbitration clause precluded criminal prosecution.                      (See N.T.

Motion Hearing, 2/12/16, at 4, 6 -8).           Appellee entered    a    transcript of the

testimony at the preliminary hearing as an exhibit at argument. (See id. at

9).   The trial court agreed with the Commonwealth that the arbitration

clause did not bind the Commonwealth.            (See id. at   7 -8).    However, during

the argument, the following exchanges took place between the trial court

and the Commonwealth.

              The [Trial] Court:   ...
                                     you are going to have to establish a
       theft.   You are going to have to establish that [Appellee]
       intended to deprive somebody else of the use of this property
       and I believe the basis for doing this is [ ] she refused to pay for

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         it. Am I right? You don't have any evidence that she moved it
         to West Virginia or that she set it in her back yard and burned it?
         She just quit paying?

              [The Commonwealth]: Right. And I think that would be
         converting to your own use under the statute of theft of leased
         property.

                The [Trial] Court:     That's certainly the argument that you
         will have to make.

              [The Commonwealth]: And that will be something we'll
         worry about proving at trial to a jury, or to a judge, or
         whichever, but I don't think this arbitration agreement can keep
         the Commonwealth from prosecuting this case.

               The [Trial] Court: I agree with you it cannot.

               The [Commonwealth]: Okay.

               The [Trial] Court: The question is whether there has been
         established a crime or whether there hasn't been established a
         crime....
(Id.   at 7 -8).

         On   February 29, 2016, the trial court issued an order granting

Appellee's motion to quash or dismiss with prejudice. (See Order, 2/29/16,

at 1).     The order did not provide any explanation as to the basis for the

dismissal.     (See   id.).   The instant, timely appeal followed.     On March 17,

2016, the trial court ordered the Commonwealth to file          a   concise statement

of errors complained of on              appeal.    See Pa.R.A.P.      1295(b).   The

Commonwealth filed        a   timely Rule 1925(b) statement on April 6, 2016. See

id.    On May 4, 2016, the           trial court issued an opinion.    See Pa.R.A.P.

1925(a).


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       In the opinion, the trial court found that the Commonwealth had not

made   a    prima facie case for theft of the leased property or receiving stolen

property. (See Opinion,       5/04/16,       at 3). The trial court did not find that the

arbitration clause precluded the Commonwealth's bringing of criminal trials

but stated that, because it believed the Commonwealth's evidence was

insufficient, the parties should have disposed of the matter in arbitration.

(See id.)    .




       On appeal, the Commonwealth raises the following question                 for our

review:

       I.        Did  the [trial court] abuse its discretion in granting
                 Appellee's motion to quash criminal information CP- 14 -CR-
                 1662 -2015 on the basis of the Commonwealth's failure to
                 establish a prima facie case because:

                 A.    A motion to dismiss/quash is not the proper
                       means by which to test the                 adequacy,
                       competency,   or     sufficiency            of   the
                       Commonwealth's evidence?

                 B.    The motion       todismiss/quash cannot be
                       considered an  incorrectly styled petition for a
                       writ of habeascorpus because Appellee did not
                       even attempt  to challenge the sufficiency of
                       the evidence at any time after the preliminary
                       hearing?

                 C.    Even   assuming, arguendo, that Appellee's
                       motion to dismiss /motion to quash is
                       considered an "incorrectly styled" petition for
                       writ of habeas corpus, the Commonwealth's
                       evidence is sufficient to bind Appellee over to
                       the Centre Court of Common Pleas?

(Commonwealth's Brief, at         4).




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      We briefly note our settled standard of review.

              The decision to grant a motion to quash a criminal
      information or indictment is within the sound discretion of the
      trial judge and will be reversed on appeal only where there has
      been a clear abuse of discretion. Discretion is abused when the
      course pursued by the trial court represents not merely an error
      of judgment, but where the judgment is manifestly unreasonable
      or where the law is not applied or where the record shows that
      the action is a result of partiality, prejudice, bias or ill will.

Commonwealth v. Weigle, 949 A.2d 899, 902                          (Pa.   Super. 2008),

affirmed, 997 A.2d 306 (Pa. 2010) (quotation marks and citations omitted).

Furthermore:

                  it is settled that the evidentiary sufficiency, or lack
                  .   .   .


      thereof, of 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.   Indeed, 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.




            At the preliminary hearing 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. A prima facie
      case exists when the Commonwealth produces evidence of each
      of the material elements of the crime charged and establishes
      probable cause to warrant the belief that the accused committed
      the offense. Furthermore, the evidence need only be such that,
      if presented at trial and accepted as true, the judge would be
      warranted in permitting the case to be decided by the jury.

Commonwealth v. Karetny, 880 A.2d 505, 513 -14                    (Pa. 2005) (citations

omitted). The function of      a   preliminary hearing "is to avoid the incarceration

or trial of   a   defendant unless there   is   sufficient evidence to establish   a   crime

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was committed and the probability the defendant could be connected with

the crime. Its purpose is not to prove defendant's guilt." Commonwealth

v.   Jackson, 849 A.2d 1254, 1257 (Pa. Super. 2004) (citation omitted).
        The Commonwealth claims that the trial court abused its discretion in

quashing the criminal information because           a   motion to dismiss   is   not the

proper procedure to test the adequacy of the Commonwealth's evidence.

(See Commonwealth's Brief, at 10). Specifically, it says that Appellee filed           a


motion to dismiss /quash based on the arbitration clause contained in the

lease agreement, which Appellee alleged precluded the Commonwealth from

prosecuting the matter.          (See id. at 11).   It contends that the trial court
"used [the motion] as    a   vehicle to determine that Appellee was not guilty

and dismissed the prosecution."         (Id.). The Commonwealth avers that the
trial court's action runs afoul of this Court's decision in Commonwealth v.

Shaffer, 557 A.2d 1106       (Pa. Super. 1989).     (See id. at 10 -13). We agree.

        In Shaffer, we stated that:

              A motion to quash is an appropriate means for raising
        defects apparent on the face of the information or other defects
        which would prevent prosecution.         It is neither a guilt
        determining procedure nor a pre -trial means for determining the
        sufficiency of the Commonwealth's evidence.         Neither the
        adequacy nor competency of the Commonwealth's evidence can
        be tested by a motion to quash the information.

Shaffer, supra at 1106 -07 (citations omitted). Thus, we held that the trial
court had erred in using     a   motion to quash as     a   means of determining guilt

and acquitting the defendant. See id.


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          Here, although Appellee did not challenge the sufficiency of the

Commonwealth's evidence in             her motion, the trial        court sua sponte

evaluated the testimony from the preliminary hearing, (see Trial Ct. Op., at

3), weighed its adequacy, and made         a   de facto finding that Appellee was not

guilty.    (See id.). This was error. See Shaffer, supra at 1106 -07.               The

sole question before the trial court at this stage was whether there were

"defects apparent on the face of the information or other defects which

would prevent prosecution. "2         Id. at 1106; see also Commonwealth              v.

Nicodemus, 636 A.2d 1118, 1121             (Pa. Super. 1993), appeal denied, 655

A.2d 512 (Pa. 1994) ( "[A]n omnibus pretrial motion may contain            a   motion to

quash an indictment or information when it is alleged that the indictment or

information    is   defective, but it cannot be   a   means of testing the adequacy or

competency of the Commonwealth's evidence. ") (citations omitted).                   By

quashing the information based on the adequacy of the evidence rather than



2 The proper means of challenging the sufficiency of the Commonwealth's
evidence is by way of a writ of habeas corpus. See Commonwealth v.
Marti, 779 A.2d 1177, 1179 n.1 (Pa. Super. 2001). While we have
sometimes treated a motion to dismiss /quash as an incorrectly styled
petition for a writ of habeas corpus, we have only done so in cases where
the defendant challenged the sufficiency of the evidence in the motion and
where the Commonwealth has not objected.                See id.; see also
Commonwealth v. Ballard, 460 A.2d 1091, 1092 n.1 (Pa. 1983) (treating
pleading challenging sufficiency of evidence incorrectly styled as motion to
quash as mistitled petition for writ of habeas corpus). As discussed above,
this is simply not the case here and, therefore, there is no basis for treating
Appellee's motion as a mistitled petition for a writ of habeas corpus. See
Ballard, supra at 1092 n.1; Marti, supra at 1179 n.1.

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any defect on the face of the information, the trial court erred and abused its

discretion. See Commonwealth v. Moser, 476 A.2d 980, 982 (Pa. Super.

1984) ( "The trial court's quash of the information was improper because its

rationale for doing so was more         a   judgment of the Commonwealth's

evidence than      a   determination   of the   validity of the information. ").

Accordingly, we are constrained to reverse and remand the case for

proceedings consistent with this opinion.

         Order reversed. Case remanded. Jurisdiction relinquished.



Judgment Entered.




J:seph    Seletyn,
         D.
Prothonotary


Date: 1/17/2017




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