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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.
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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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