J-A01036-25
2025 PA Super 117
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
v. :
:
:
RICHARD JONES :
:
Appellee : No. 904 EDA 2024
Appeal from the Order Entered February 26, 2024
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0001518-2023
BEFORE: DUBOW, J., KING, J., and SULLIVAN, J.
OPINION BY SULLIVAN, J.: FILED JUNE 6, 2025
The Commonwealth appeals from the order granting the motion of
Richard Jones (“Jones”) to quash 1 and dismiss the third-degree murder and
conspiracy charges against him. 2 After careful review, we reverse.
We summarize the relevant factual and procedural history of this case
as follows. At around 2:30 a.m. in June 2022, then-fourteen-year-old Jones,
with his fourteen-year-old co-defendant G.M., were part of a group of minors
near the Stephen Klein Wellness Center near the intersection of North 22nd
Street and Cecil B. Moore Avenue in Philadelphia. Jones and G.M. encountered
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1 A pre-trial motion for writ of habeas corpus challenging the sufficiency of the
evidence presented by the Commonwealth at a preliminary hearing is
generally referred to in Philadelphia County as a “motion to quash the return
of transcript.” See, e.g., Commonwealth v. Ouch, 199 A.3d 918, 922 n.2
(Pa. Super. 2018).
2 See 18 Pa.C.S.A. §§ 2502(c), 903(a).
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a seventy-three-year-old man (“the victim”) at whom Jones once, and G.M.
twice, threw a traffic cone, which ultimately caused his death.
Video footage, which captured the incident, reveals the following:
1:04-1:07: G.M. picks up the cone and starts to hand it to
Jones.
1:09: Both G.M. and Jones are holding the cone.
1:10-1:17: Jones hits the victim with the cone from behind,
knocking him to the ground, and runs out of the frame to the
other side of the street.
1:22-1:25: G.M. hits the victim with the cone as he is trying
to stand up.
1:30-1:35: G.M. hits the victim with the cone again, after he
has stood up, and as he is trying to walk away.
1:32: Jones walks back into the frame as G.M. is about to hit
the victim with the cone a second time, this time with a bag
in his hand that he was not previously carrying.
1:36: Jones is looking and walking in the victim’s direction
smiling.
9:15-9:35: The group, including those who assaulted the
victim, reconvenes; Jones hands a Target bag to G.M. and then
mockingly reenacts the assault on the victim.
See N.T., 2/26/24, Commonwealth’s Ex. C-3. 3 Immediately following the
attack, some of the minors fled, while others, including G.M., remained at the
scene, as uninvolved pedestrians approached the area. One of the pedestrians
used G.M.’s phone to call 911, after which G.M. took her phone back, and she
____________________________________________
3 Citations to the video reference the runtime of the video rather than the
timestamp on the screen.
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and the other remaining minors left. See id. at 3:11-3:22, 5:27-7:38.4 The
victim was then taken to the hospital where he died from brain injuries. See
N.T., 2/26/24, at 25-26, 41.5
In July 2022, Jones was arrested and charged with third-degree murder
and conspiracy to commit murder. A preliminary hearing was held in February
2023. Both charges were held for court. In February 2024, Jones filed a
counseled motion to quash both charges. On February 26, 2024, the trial
court held a hearing on the motion.
At the hearing, the Commonwealth introduced the video surveillance
footage from the incident, described above, and also the testimony of medical
examiner Victoria Sorokin, M.D. (“Dr. Sorokin”), who testified that the victim
died from brain injuries as a result of the assault, and concluded it was the
“totality” of the injuries that caused his death rather than any one specific
blow. See id. at 41. Following arguments, the court granted Jones’s motion
____________________________________________
4 The trial court wrongly inferred that it was one of the minors in the group
who called 911. See Trial Ct. Op., 4/11/24, at 2.
5 The trial court implies the video suggests the victim initially threw the traffic
cone at the minors, though it did not make contact with them; based on our
review of the video, this fact is unsupported by the record. Compare Trial
Ct. Op., 4/11/24, at 2 with N.T., 2/26/24, Commonwealth’s Ex. C-3, at 1:00
– 1:05 (depicting the cone falling to the ground and into the frame of the
video around some of the minors, but not showing the cone’s origin).
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and dismissed the charges.6 The Commonwealth filed a timely notice of
appeal, and both the Commonwealth and the trial court complied with
Pa.R.A.P. 1925.
The Commonwealth raises the following issue for our review:
Did the lower court err in concluding that the Commonwealth did
not establish a prima facie case of third-degree murder and
conspiracy where the elderly victim died of trauma to his brain
after [Jones] and another teen threw a heavy traffic cone at the
back of [his] head and then joked about it?
Commonwealth’s Brief at 3.
Our standard of review for an order dismissing a criminal charge, based
on the sufficiency of the evidence establishing a prima facie case at a
preliminary hearing, is as follows:
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.
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. Therefore, we are not
bound by the legal determinations of the trial court.
Commonwealth v. Ouch, 199 A.3d 918, 923 (Pa. Super. 2018) (internal
citations, quotations, and brackets omitted).
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6 The trial court explained that G.M. was also arrested and charged with third-
degree murder and conspiracy to commit third-degree murder. After waiving
her right to a preliminary hearing, and with agreement from the
Commonwealth, the court transferred her case to family court for disposition
and treatment. See Trial Ct. Op., 4/11/24, at 1 n.1.
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With respect to preliminary hearings, this Court has explained the
purpose of the hearing is:
. . . [t]o determine whether the Commonwealth has made
out a prima facie case for the offenses charged. 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 establishes a prima facie case when it
produces evidences that, if accepted as true, would warrant the
trial judge to allow the case to go to a jury. The Commonwealth
need not prove the elements of the crime beyond a reasonable
doubt; rather, the prima facie standard requires evidence of the
existence of each and every element of the crime charged.
Moreover, the weight and credibility of the evidence are not
factors at this stage, and the Commonwealth need only
demonstrate sufficient probable cause to believe the person
charged has committed the offense. Inferences reasonably drawn
from the evidence of record which would support a verdict of guilty
are to be given effect, and the evidence must be read in the light
most favorable to the Commonwealth’s case.
Id. (internal citations and quotations omitted; emphasis in original).
The Commonwealth challenges the trial court’s order dismissing Jones’s
third-degree murder and conspiracy charges based on what it asserts was an
erroneous conclusion that the Commonwealth failed to put on a prima facie
case, specifically as to Jones’s mens rea.
This Court has explained the law relevant to mens rea for third-degree
murder as follow:
Pennsylvania retains the common law definition of murder,
which is a killing conducted “with malice aforethought.” Section
2502 of the Pennsylvania Crimes Code categorizes murder into
degrees. See generally 18 Pa.C.S.[A.] § 2502(a)-(c). Third-degree murder is defined as “all other kinds of murder,” i.e., those
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committed with malice that are not intentional (first-degree) or
committed during the perpetration of a felony (second-degree).
Id. The pertinent provision of the aggravated assault statute
requires proof that the defendant “attempt[ed] to cause serious
bodily injury to another, or cause[d] 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). . . . [T]he mens rea required for a conviction of
aggravated assault, like third-degree murder, is malice;
only the result of the crimes differ. See Commonwealth v.
O’Hanlon, 653 A.2d 616, 618 (Pa. 1995) (“Aggravated assault is,
indeed, the functional equivalent of a murder in which, for some
reason, death fails to occur.”); [Commonwealth v.] Kling, 731
A.2d [145,] 147 [(Pa. Super. 1999)] (“There is no distinction
between the malice essential to third degree murder and that
necessary for aggravated assault.”).
Commonwealth v. Packer, 168 A.3d 161, 168 (Pa. 2017) (some internal
citations and quotations omitted; emphasis added).
Regarding the “malice” requirement, this Court has explained:
. . . Malice is a legal term, implying much more. It comprehends
not only a particular ill-will, but every case where there is
wickedness of disposition, hardness of heart, cruelty, recklessness
of consequences, and a mind regardless of social duty, although
a particular person may not be intended to be injured.
Id. (internal citation omitted). For either third-degree murder or aggravated
assault, malice is “present under circumstances where a defendant did not
have an intent to kill, but nevertheless displayed a conscious disregard for an
unjustified and extremely high risk that his actions might cause death or
serious bodily harm.” Id. (internal citations and quotations omitted). Malice
also “would be present if the defendant had an intent to do the deceased great
bodily harm.” Commonwealth v. Buzard, 76 A.2d 394, 396 (Pa. 1950).
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“Ordinarily[,] where an assault is made with bare fists only, without a
deadly weapon, and death results[,] there would only be manslaughter.”
Commonwealth v. Dorazio, 74 A.2d 125, 129 (Pa. 1950). The intent
involved must be to produce a bodily injury “as may be expected to involve
serious consequences, either [periling] life or leading to great bodily harm.”
Id. Crucially, “[w]hether the malice necessary to constitute murder
may be implied from the use of fists alone must depend on the
particular circumstances.”
Id. at 130 (emphasis added). Relevant factors
include “[t]he size of the assailant, the manner in which the fists are used, the
ferocity of the attack and its duration[,] and the provocation are all relevant
to the question of malice.”
Id. Additionally, “it is not necessary that the injury
be intended to be permanent or dangerous to life[;] it is malicious to intend
injury such as to seriously interfere with health and comfort.”
Id. Indeed,
“the Commonwealth may show, and the jury is not precluded from finding,
that malice existed even though a deadly weapon was not used. Malice may
be found from the attending circumstances.” Buzard,
76 A.2d at 396. As
noted above, “the mens rea required for a conviction of aggravated assault,
like third-degree murder, is malice; only the result of the crimes differ.”
Packer, 168 A.3d at 168. Accord Commonwealth v. Frye,
319 A.3d 602,
608 (Pa. Super. 2024).
Moreover, our Supreme Court has explained the law pertaining to
conspiracies as follows:
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In order to prove the existence of a criminal conspiracy, the
Commonwealth must demonstrate that the defendant: (1)
entered 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. . . .
[See 18 Pa.C.S.A. § 903.] . . ..
At the heart of every conspiracy lies the common
understanding or agreement between the actors. Implicit in any
conspiracy is proof . . . that an accused agrees to participate in
the alleged criminal activity. The criminal union being prosecuted
cannot be based upon an agreement to complete a broad,
undefined objective at some unknown point. Rather, the
agreement must rest upon the mutual specific intent to carry out
a particular criminal objective. The sine qua non of a conspiracy
is the shared criminal intent. Without this common purpose, a
conspiracy cannot be maintained.
Proving the existence of such an agreement is not always
easy, and is rarely proven with direct evidence. An explicit or
formal agreement to commit crimes can seldom, if ever, be proved
and it need not be, for proof of a criminal partnership is almost
invariably extracted from the circumstances that attend its
activities. Indeed, a conspiracy may be proven inferentially by
showing the relation, conduct, or circumstances of the parties, and
the overt acts of alleged co-conspirators are competent as proof
that a criminal confederation has in fact been formed.
A conspiracy cannot be established based only upon mere
suspicion and conjecture. Preexisting relationships or mere
association of participants, without more, will not suffice to
establish a prosecutable criminal conspiracy. Mere association
with the perpetrators, mere presence at the scene, or mere
knowledge of the crime is insufficient to prove that a particular
actor was involved in a criminal conspiracy.
Commonwealth v. Chambers, 188 A.3d 400, 409-10 (Pa. 2018) (internal
citations, quotations, emphasis, and brackets omitted).
The Pennsylvania Supreme Court addressed in detail how a conspiracy
could be ascertained in context of fights, which we quote as follows:
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Fights involving multiple participants, particularly those in
which a person interjects herself into a brawl after it has
commenced, present unique challenges for determining whether
a conspiracy existed. As suggested above, direct evidence of the
formation of a conspiratorial agreement is rare, and often must be
derived from the facts and circumstances of each case. The
agreement need not be formal, nor must it even be expressly
communicated. It can be established instantaneously, or it can
be the product of drawn-out deliberations. By way of example, in
the context of multi-person fights, two participants can form a
conspiracy to assault another person by discussing at length a
plan to assault that person, or, alternatively, those same
individuals can form the illicit agreement by mere nodding of
heads, so long as they possess the requisite intent.
A conspiracy can form after one of the actors begins
committing a substantive crime, such as an assault. Yet, as is the
case here, determining if and when such a conspiracy arose can
be difficult. Consider a case in which two people engage in a fight
and another person joins in after the fight has begun. If the
intervening person decided, entirely upon her own accord, to join
the fight, no conspiracy would exist, regardless of her relationship
to either combatant. The conspirators must at some point agree
(and intend) to commit—or solicit or aid in the planning of—an
assault. One joining the fight, but acting only upon her own
volition and motivation, does not make a conspiracy.
Nonetheless, even if no conspiracy existed when the third
party initially intervened, subsequent events can create a criminal
conspiracy. For example, imagine two men fighting each other
outside of a bar. A third man, a friend of one of the combatants,
sees the fight and decides, on his own, to jump into the fight to
help his friend. At that point, because there has not yet been a
meeting of the minds, no conspiracy exists. But, imagine next
that the original fighter grabs and holds his opponent by the arms
and then nods to the intervening friend, who then starts
repeatedly punching the restrained man. In that scenario, a
conspiracy has formed when the original fighter holds his
opponent and nods to the intervening man, even though no
conspiracy yet existed at the point when the third man first joined
the fight.
Each case must be evaluated on its own set of facts. Despite
the variable circumstances under which a conspiracy can form,
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particularly in assault cases, it is axiomatic and well-established
that persons do not commit the offense of conspiracy when they
join into an affray spontaneously, rather than pursuant to a
common plan, agreement, or understanding.
Id. at 411 (internal citation and quotations omitted). Importantly, “[o]nce
the conspiracy is established beyond a reasonable doubt, a
conspirator can be convicted of both the conspiracy and the
substantive offense that served as the illicit objective of the
conspiracy.”
Id. at 410 (internal citation omitted; emphasis added).
Accord Commonwealth v. Fisher,
80 A.3d 1186, 1196 (Pa. 2013) (holding
that where defendants “agreed to engage in the intentional, malicious attack
of the victim, without regard to the consequences of that act[, which] resulted
in the victim’s death, their conspiracy to commit third[-]degree murder
convictions were appropriate . . ..”).
The Commonwealth argues the trial court erred in dismissing both the
third-degree murder charge and the conspiracy charge. In support of the
third-degree murder charge, the Commonwealth argues that the
circumstances of Jones’s assault of the victim establish malice, including the
size disparity between Jones and the victim, the fact that the victim, a
seventy-three-year-old man, was defenseless, and Jones struck him from
behind with the cone with enough force to cause him to fall. See
Commonwealth’s Brief at 5, 16. The Commonwealth additionally asserts the
following in support of the conspiracy charge: G.M. handed Jones the cone he
threw at the victim; then, while Jones moved out of the frame for only a few
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seconds, G.M. picked up the cone and threw it at the victim, after which Jones
moved back into the frame, smiling; and, after the assault, Jones handed G.M.
his bag while he mimicked the victim’s fall to the ground. See id. at 19.
The trial court considered the Commonwealth’s arguments and rejected
them. With regard to Jones’s malice, or lack thereof, the trial court concluded
that Jones threw the cone a single time and did not strike the victim thereafter,
but “walked away,” and, accordingly, the Commonwealth could not establish
Jones knew “there was an unjustified and extremely high risk that his actions
might cause serious bodily injury or the death of the victim, or that he had a
conscious disregard for that risk.” Trial Ct. Op., 4/11/24, at 4.
With regard to conspiracy, the trial court concluded as follows:
To prove conspiracy, the Commonwealth must demonstrate
that [Jones] entered into an agreement to commit or aid in an
unlawful act with another person or persons with a shared criminal
intent and that an overt act was done in furtherance of the
conspiracy. . . ..
Here, [Jones] demonstrated no shared criminal intent with
[G.M.] The video did not establish that the two agreed in any way
to act in tandem. [Jones] threw the traffic cone one time, after
which he crossed the street and left the scene.[7] [G.M.] continued
on her own to pick up the cone and strike the decedent twice over,
knocking the man to the ground on both occasions. Like the
defendant in Chambers, [G.M.] appears to have joined the
____________________________________________
7 This depiction is an inaccurate recitation of the actions depicted in the video.
While Jones did jog across the street after he threw the cone G.M. handed him
at the victim, Jones merely went across the street and outside of the video
frame. He comes back into the video frame approximately 15 seconds later,
carrying a bag in his hand and walking toward G.M. and the rest of the minors.
Jones did not leave the “scene” entirely as is intimated in the trial court
opinion.
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altercation upon her own volition and motivation. There is no
evidence that [Jones] or [G.M.] expressly agreed, gestured
to one another, or invited each other's participation in any
way to work in concert against the decedent; consequently,
the Commonwealth did not establish [a] prima facie [case] that
the two formed a conspiracy.
Trial Ct. Op., 4/11/24, at 5 (unnecessary capitalization omitted; emphasis
added).
Following our review, we conclude that the trial court erred. We focus
first on the conspiracy charge because it is well settled that if Jones is liable
for conspiracy to commit third-degree murder, then he is liable for the
substantive offense as well. See Chambers, 188 A.3d at 410. The evidence,
when viewed in the light most favorable to the Commonwealth as the law
requires, shows that from the outset Jones and G.M. worked in tandem to
confront the victim and throw the cone at him, with G.M. initially handing the
cone to Jones, Jones throwing it first, and G.M. throwing it two more times
thereafter. The agreement between Jones and G.M. to throw the cone at the
victim is established at the moment G.M. hands the cone to Jones to throw at
the victim. See N.T., 2/26/24, Commonwealth’s Ex. C-3, at 1:04-1:09. The
video shows Jones’s and G.M.’s association even before the first blow to the
victim. This initial hand off showed a shared understanding that they would
throw the cone at him; Jones and G.M. both threw the cone at the victim; and
then they reunited just after the assault, after which Jones is observed joking
with G.M. about the attack and mimicking the victim’s fall to the ground. See
id. at 1:10-1:38, 9:15-9:30. Thus, the trial court erred in overlooking these
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indicia of a shared understanding between Jones and G.M. and concluding, to
the contrary, that there was no shared understanding. See Trial Ct. Op.,
4/11/24, at 5 (stating, “[G.M.] appears to have joined the altercation upon
her own volition and motivation. There is no evidence that [Jones] or [G.M.]
expressly agreed, gestured to one another, or invited each other’s
participation in any way to work in concert against the decedent . . ..”
(emphasis added).
Because the evidence supported at least a prima facie case of an
agreement, and intent, to assault the victim with the cone, we look to the
remaining elements of third-degree murder. There is no dispute that the
victim died from some combination of the blows to his head caused by Jones
and G.M. and the fall to the ground. See N.T., 2/26/24, at 41 (Dr. Sorokin
testifying that the victim “was struck on the head multiple times[,] plus he fell
on the hard pavement. So the totality of injuries caused his death”). This
establishes the overt acts of the co-conspirators as well as causation.
Having established a prima facie case of conspiracy as well as the
victim’s death as a result of Jones’s and G.M.’s combined actions, we lastly
look to malice. As this Court has recently explained, “For either third-degree
murder or aggravated assault, malice is present under circumstances where
a defendant did not have an intent to kill, but nevertheless displayed a
conscious disregard for an unjustified and extremely high risk that his actions
might cause death or serious bodily harm.” Frye, 319 A.3d at 607 (internal
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citation and quotations omitted). Here, malice is established by the fact that
Jones threw a traffic cone from behind at an elderly victim, knocking him to
the ground, and then G.M. threw a traffic cone two times at the elderly victim
from behind as he was trying to rise up from the ground and walk away,
having been previously hit from behind with the traffic cone. See, e.g.,
Buzard, 76 A.2d 395-96 (several strikes to the head of a victim from behind
which cause the victim to die are enough to show malice). Thus, there was a
prima facie case that Jones and G.M. agreed to assault the victim with cone,
and Jones and G.M. both performed overt acts showing the requisite malice in
furtherance of this shared intent to attack the victim.
Accordingly, the Commonwealth put forth a prima facie case of
conspiracy to commit third-degree murder, and thereby, also a prima facie
case of Jones’s liability for the substantive offense of third-degree murder.
See Chambers, 188 A.3d at 410 (stating that once the conspiracy is
established beyond a reasonable doubt, a conspirator can be convicted of both
the conspiracy and the substantive offense that served as the illicit objective
of the conspiracy). The trial court erred in concluding to the contrary.
Notwithstanding Jones’s liability for conspiracy, and thereby the
substantive offense of third-degree murder, we note that the Commonwealth
also put on a prima facie case for the substantive offense of third-degree
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murder based on an accomplice liability theory. 8 A person is an accomplice
and “equally criminally liable for the acts of another if he acts with the intent
of promoting or facilitating the commission of an offense and agrees, aids, or
attempts to aid such other person in either planning or committing that
offense.” Chambers, 188 A.3d at 415 (internal citation and quotations
omitted); see also 18 Pa.C.S.A. § 306(b)(3), (c)(1) (setting forth the
requirements for accomplice liability). The “least degree of concert or
collusion in the commission of the offense is sufficient to sustain a finding of
responsibility as an accomplice.” Commonwealth v. Kimbrough,
872 A.2d
1244, 1251 (Pa. Super. 2005) (internal citation and quotation omitted)
(affirming a conviction for third-degree murder under an accomplice theory of
liability). The evidence discussed supra establishes a prima facie case of
Jones acting with the intent to facilitate the malicious assault of the seventy-
three-year-old victim, which resulted in his death, by coordinating with G.M.
____________________________________________
8 A defendant may be convicted of a crime under an accomplice liability theory
even though charged as a principal. See, e.g., Commonwealth v. Spotz,
716 A.2d 580, 588 (Pa. 1998). Unlike conspiracy, an inchoate crime,
accomplice liability is an uncharged theory of criminal liability that the
Commonwealth may use to prove guilt of a substantive criminal offense.
Moreover, even at trial, the Commonwealth’s failure to initially proceed on the
theory of accomplice liability does not later preclude a defendant’s conviction
under this theory as long as the defendant knows the Commonwealth may
pursue theories of liability that link the defendant and another in the
commission of crimes. See, e.g.,
id. at 588; Commonwealth v. Potts,
566
A.2d 287, 293 (Pa. Super. 1989).
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to throw the traffic cone at him from behind, with Jones aiding the assault by
throwing the cone first at the victim.
In sum, we reverse the trial court’s order granting Jones’s motion to
quash and dismiss the conspiracy and third-degree murder charges, and
remand for further proceedings consistent with this decision.
Order reversed. Case remanded. Jurisdiction relinquished.
Date: 6/6/2025
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