J-S17042-23
2023 PA Super 202
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. :
:
ZAVION TAVARIS LITTLE :
:
Appellee : No. 29 WDA 2023
Appeal from the Order Entered December 22, 2022
In the Court of Common Pleas of Blair County
Criminal Division at No(s): CP-07-CR-0001071-2022
BEFORE: LAZARUS, J., OLSON, J., and KING, J.
OPINION BY KING, J.: FILED: October 13, 2023
Appellant, the Commonwealth of Pennsylvania, appeals1 from the order
entered in the Blair County Court of Common Pleas, which granted the motion
of Appellee, Zavion Tavaris Little, for writ of habeas corpus and dismissed the
charge against Appellee of conspiracy to commit robbery. We affirm.
In its opinion, the trial court set forth the relevant facts and procedural
history of this case as follows.
On or about May 28, 2022, the 16-year-old [Appellee] was
charged as an adult in Blair County…with, in relevant part,
Count 1, Conspiracy to Commit Robbery—Inflict Serious
Bodily Injury, 18 Pa.C.S.[A.] § 903(a), and Count 13,
Escape, 18 Pa.C.S.[A.] § 5121(a).1 On or about June 7,
2022, and June 15, 2022[,] a preliminary hearing was held.
Following conclusion of the hearing the charges were bound
over to the Blair County Court of Common Pleas for further
disposition. On or about June 23, 2022, [Appellee] filed a
____________________________________________
1 The Commonwealth certified in its notice of appeal that the order appealed
from will terminate or substantially handicap the prosecution, in accordance
with Pa.R.A.P. 311(d).
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pleading titled “Emergency Habeas Corpus for Lack of
jurisdiction.” The court ordered the parties to submit
memoranda of law in advance of their position. In his
Memorandum of Law, [Appellee] argued that the
Commonwealth did not establish a prima facie case of
Conspiracy to Commit Robbery or of Escape in the
jurisdiction of Blair County, Pennsylvania.[2]
1 [Appellee] was also charged with other crimes…:
Count 2, Receiving Stolen Property, 18 Pa.C.S.[A.] §
3925(a), Count 3, Fleeing or Attempting to Elude
Officer, 75 Pa.C.S.[A.] § 3733(a), Count 4, Possessing
Instruments of Crime, 18 Pa.C.S.[A.] § [9]07(a),
Count 5, Recklessly Endangering Another Person, 18
Pa.C.S.[A.] § 2705, Counts 6, 7, 8, 9, 10, 11, and 12,
traffic violation summaries.
…
[The Commonwealth introduced the following
testimony/evidence at the preliminary hearing.] Trooper
Eric Griswold of the Pennsylvania State Police testified that
he was working an overtime shift on May 28, 2022 from
7:00 a.m. to 10:00 a.m., on I-99 at the Kettle Road
underpass, where he was using radar and watching
southbound traffic. Shortly after 8:00 a.m., Griswold
noticed a Kia Sorrento traveling at 93 mph in a 70 mph zone.
He pulled out and waited until he got close enough to
observe the license plate. At that point he could see it was
a New York license plate. He attempted to effectuate a
traffic stop for the speeding violation. Despite the Trooper
using his vehicle’s emergency lights, the Sorrento did not
stop along the interstate, and instead traveled to the 17th
Street exit farther south near Altoona. The Sorrento exited
at 17th Street and traveled towards the City of Altoona
before turning right onto Valley View Blvd. During the
pursuit, the Trooper followed directly behind the Sorrento,
which came to a stop on the right shoulder of the roadway
____________________________________________
2 The parties agree that given Appellee’s age, the charge of conspiracy to
commit robbery was the only offense that placed Appellee’s case before the
criminal division of the Blair County Court of Common Pleas rather than in the
juvenile division.
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in the area of 16th Street.
As the Sorrento came to a stop, Griswold got out of his
vehicle and commanded the driver of the Sorrento to open
the window and show his hands. The driver initially
complied, and Griswold was able to see that the driver was
wearing a dark T-shirt. Griswold initially could not see
whether or not there were other occupants in the vehicle,
and after the driver stuck his hands out of the window,
Griswold approached the vehicle. As he approached, the
driver “put his hands back in and took off, continuing
traveling north on Valley View Boulevard.” Griswold
pursued the Sorrento for “approximately 12-13 miles.”
During the pursuant, Griswold saw the Sorrento “blow
through red lights, run people off the road, travel an
excessive speed of 130 miles an hour, weaving in and out
of traffic causing danger to all motorists that were on the
roadway.” The driver attempted to enter the I-99 ramp at
the Tipton/Grazierville exit, and was unable to negotiate a
curve and crashed into a grassy median. After the crash,
Griswold approached the Sorrento to determine whether the
occupant or occupants were injured; two black males exited
the vehicle and got on the ground at the trooper’s
command. Griswold was unable to see the occupants’ faces
because they were wearing masks, with the driver wearing
a black mask and the passenger wearing a blue camouflage
mask. Griswold also described the clothing the two
occupants were wearing, with the driver wearing a black T-
shirt with a Chicago Bulls 23 insignia and the passenger
wearing a black sweatshirt with Champion across the back.
Griswold provided the occupants with Miranda[3] warnings,
and [Appellee] agreed to speak with him. [Appellee’s] mask
was removed and he identified himself[.] [Appellee] told
the trooper he had stolen the Kia Sorrento he had been
driving from a driveway at a house near a gas station in New
York or just inside Pennsylvania. He said that he had
previously driven another vehicle in New York, the latter of
which he claimed to have had permission to drive.
[Appellee] told Griswold that “…the first vehicle that he had
____________________________________________
3 Miranda v. Arizona, 384 U.S. 436,
86 S.Ct. 1602,
16 L.Ed.2d 694 (1966).
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driven to that location had [run] out of gas and therefore
they needed another vehicle.” Trooper Griswold was asked,
“Did [Appellee] tell you in his statement to you why he and
his co-defendant decided to steal the second vehicle in
Ellicottville [New York]?” He replied, “I actually asked him
why he wouldn’t have just stolen gas and he wasn’t really
able to—he just told me he didn’t—he wasn’t able to get me
a legitimate reason why he stole a vehicle rather than steal
gas.” The trooper found a black machete located on the
driver’s side floorboard. [Appellee] denied it was his. To
the Trooper’s knowledge, [Appellee] did not steal a car in
Pennsylvania or rob a person in Pennsylvania.
Trooper Joseph Fay testified that he was on patrol at the
time of the incident, and that he “traveled parallel with
Griswold on the interstate and Route 220 until the point
where that vehicle crashed.” When [Appellee] was
transported to UPMC Altoona via ambulance, Trooper Fay
followed. At the hospital, Fay spoke with [Appellee], who
admitted that he and his co-defendant had robbed an
individual in New York. [Appellee] also told the trooper that
he and his co-defendant had worn masks during the
robbery, and that it was their intention to take the robbery
victim’s car so they could travel to North or South Carolina.
[Appellee] stated that the pair had taken a second vehicle
with keys in it when the first vehicle had run out of gas. He
told the trooper he was traveling through Pennsylvania to
get to the Carolinas. To the Trooper’s knowledge he did not
commit a robbery in Pennsylvania.
…
Blake Petty testified that he was a criminal investigator from
Rochester, New York, assigned to investigate a “knife point
car-jacking” that had occurred in the City of Rochester on
May 27, 2022. Petty testified that he and his partner
responded to the area at around 10:00 p.m. and that the
victim in that incident, Daryl Coley, had been stabbed
“multiple times in the back and lower leg.” The robbery
victim was not able to identify his assailants. The victim
told Petty and his partner that his vehicle, a 2006 Toyota
Camry, had been stolen. The New York investigators had
retrieved surveillance video, time-stamped 9:43 p.m. on
May 27, 2022, and were able to see the victim leave Kandi’s
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Bar in Rochester, New York, as well as two individuals
walking behind him who later “attacked” him in a parking
lot around the corner. Petty was able to identify items of
clothing the individuals were wearing, including a black
Champion style sweatshirt.
Petty testified that the stolen Camry was recovered the
following day, May 28, 2022, around 7:00 p.m. at a Kwik
Fill gas station in Ellicottville, New York. Investigators
recovered a “small folding silver bladed knife” from “the
driver’s side floorboard.” The knife appeared “to have blood
on the blade,” and was collected by law enforcement and a
sample was submitted for DNA testing. Petty reviewed
surveillance video from Ellicottville, which showed “two
individuals getting out of Mr. Coley’s 2006 Camry with the
same license plate. It shows the two males getting out, one
of which has the same—appearing the same black embossed
Champion sweatshirt and the other male wearing a black T-
shirt with a Bulls 23 Michael Jordan T-shirt.” They first
parked in front of one of the gas pumps and later pulled the
car into a parking spot. Both individuals went into the store.
There was additional surveillance footage from inside the
store. It depicted both males inside the store, one wearing
the black Champion sweatshirt, and the other wearing a
black T-shirt with the Bulls logo basketball team with the
number 23 on the front. Petty was not able to see the face
of either suspect in the surveillance footage because they
are both wearing masks. One was wearing a black mask
and one was wearing a blue camouflage style mask. They
entered and left the store without incident.
Petty testified that the two individuals did not rob the gas
station attendant for money or gas or a vehicle, nor accost
anyone outside the gas station. Petty identified a blue
camouflage ski mask that was retrieved by Pennsylvania
State Police following the Blair County crash as being
consistent with the ski mask one of the individuals was
wearing in surveillance footage from New York.
Hollie Chamberlain, a resident of Ellicottville, New York,
testified at the preliminary hearing that she lives near the
Kwik Fill gas station and that her vehicle, a Kia Sorrento with
New York license plates, had been stolen from outside her
residence on the evening of May 27, 2022. Chamberlain
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testified that her vehicle had been unlocked and undamaged
when she parked it, and that her keys were in the car’s
center console. Her father called her in the morning when
he noticed the car missing from her driveway. She had not
given [Appellee] or anyone permission to use her vehicle.
The vehicle was not taken from her by force.
She testified that neither she nor anyone she resides with
or associates with keeps knives in her car, and that she did
not have a knife in her vehicle when she last parked it. She
was shown Commonwealth’s Exhibit 1 which is
characterized in the transcript as a photograph of a knife;
she testified she had never seen that knife before.
(Trial Court Opinion, filed 1/9/23, at 1-7) (internal citations omitted).
On December 22, 2022, the trial court granted Appellee’s motion for
writ of habeas corpus for the charge of conspiracy to commit robbery and
denied the motion with respect to the escape charge. The Commonwealth
filed a timely notice of appeal per Rule 311(d) on January 6, 2023. On January
17, 2023, the court ordered the Commonwealth to file a concise statement of
errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). On February
6, 2023, the Commonwealth timely complied.
The Commonwealth raises the following issues on appeal:4
1) Did the trial court err as a matter of law in granting the
petition for writ of habeas corpus in finding that the
Commonwealth failed to meet its prima facie burden of proof
on the crime of conspiracy to commit robbery?
2) Did the trial court abuse its discretion in determining the
Commonwealth had not met its prima facie burden of proof
on the conspiracy to commit robbery charge when the trial
court had previously accepted a factual basis for the co-
____________________________________________
4 Appellee has not filed a responsive brief.
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defendant’s juvenile court admission to conspiracy to
commit robbery?
(Commonwealth’s Brief at 6).
“In reviewing a trial court’s order granting a defendant’s petition for writ
of habeas corpus, we must generally consider whether the record supports
the trial court’s findings, and whether the inferences and legal conclusions
drawn from those findings are free from error.” Commonwealth v. Hilliard,
172 A.3d 5, 10 (Pa.Super. 2017) (internal citations and quotation marks
omitted). Further, “the evidentiary sufficiency, or lack thereof, of the
Commonwealth’s prima facie case for a charged crime is a question of law,”
and the appellate court’s review is plenary. Commonwealth v. Karetny,
583 Pa. 514, 528,
880 A.2d 505, 513 (2005).
In its first issue, the Commonwealth argues that the testimony elicited
at the preliminary hearing demonstrates that Appellee and his co-defendant
robbed someone, and intended to continue robbing people and stealing
vehicles, to facilitate a drive to North or South Carolina. The Commonwealth
asserts it presented prima facie evidence that the intended scope of the
conspiracy was to steal cars (rather than gasoline) from the time Appellee and
his co-defendant left New York until they reached the Carolinas. The
Commonwealth highlights the following evidence adduced at the preliminary
hearing: Appellee’s statement that the pair intended to travel to the Carolinas
and stole another vehicle when the first vehicle ran out of gas; the short period
of time between the robbery and the car thefts in New York and the crash in
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Blair County; the presence of the machete in the driver’s floorboard of the
wrecked Kia Sorrento as well as the knife found on the driver’s side floorboard
of the Toyota Camry stolen in the New York knifepoint robbery; and Appellee’s
false statement to the police about having permission to drive the Camry. The
Commonwealth maintains that these pieces of evidence collectively show that
Appellee and his co-defendant intended to commit armed robbery, if
necessary, to steal vehicles in furtherance of their plan to get to the Carolinas.
The Commonwealth submits it produced prima facie evidence that
Appellee and his co-defendant were working together in furtherance of their
conspiracy to commit robbery from its inception in New York until its defeat in
Blair County. The Commonwealth claims that Appellee articulated that his
plan was to drive to the Carolinas with his co-defendant but the two had no
way to get there. The Commonwealth posits that the two worked in concert
to rob the owner of a 2006 Camry so they could steal his vehicle. The
Commonwealth emphasizes that Appellee and his co-defendant were seen on
surveillance video in New York wearing the same clothing they wore when
apprehended, they both wore ski masks to conceal their identities, and they
were both present in the Kia Sorrento when it crashed.
The Commonwealth further contends that Appellee lied to Trooper
Griswold about having permission to drive the stolen Toyota Camry in New
York. The Commonwealth maintains that Appellee told Trooper Fay that
Appellee and his co-defendant decided to visit his father in one of the Carolinas
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but had no means to get there. The Commonwealth claims that Appellee
admitted to Trooper Fay that Appellee and his co-defendant saw an individual
on the street in New York, approached him, Appellee acted like he had a
firearm, and robbed the individual. Appellee and his co-defendant then drove
the stolen vehicle until it ran out of gas, at which point they stole a second
vehicle. The Commonwealth emphasizes that Appellee admitted that he and
his co-defendant wore masks to hide their identities. The Commonwealth
emphasizes that the crimes in New York occurred within hours of the crash of
the stolen Kia Sorrento in Pennsylvania.
Based on these facts, the Commonwealth insists the conspiracy to
commit robbery lasted from its inception in New York until the vehicle crash
in Blair County. The Commonwealth submits that the presence and use of ski
masks, the machete found in the Kia Sorrento, and Appellee’s statements that
he and his co-defendant stole cars rather than gas in their effort to get to the
Carolinas establish an overt act that the conspiracy was in effect as Appellee
and his co-defendant traveled through Blair County. Under these
circumstances, the Commonwealth submits that it presented prima facie
evidence of Appellee and his co-defendant’s conspiracy to commit robbery
which began in New York and continued until the conspiracy was defeated by
the vehicle crash in Blair County. The Commonwealth concludes that the trial
court erred in granting Appellee’s motion for writ of habeas corpus, and this
Court must grant relief. We disagree.
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“The purpose of a preliminary hearing is to avoid the incarceration or
trial of a defendant unless there is sufficient evidence to establish a crime was
committed and the probability the defendant could be connected with the
crime.” Commonwealth v. Jackson, 849 A.2d 1254, 1257 (Pa.Super. 2004)
(internal citation omitted). See also Pa.R.Crim.P. 542(D) (stating issuing
authority shall determine from evidence presented at preliminary hearing
whether there is prima facie case that (1) offense has been committed; and
(2) defendant has committed it).
The Commonwealth establishes a prima facie case when it
produces evidence that, if accepted as true, would warrant
the trial judge to allow the case to go to a jury. [T]he
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.
Commonwealth v. Marti, 779 A.2d 1177, 1180 (Pa.Super. 2001) (internal
citations and quotation marks omitted).
Following a preliminary hearing,
A pre-trial habeas corpus motion is the proper means for
testing whether the Commonwealth has sufficient evidence
to establish a prima facie case. 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
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evidence presented at the preliminary hearing and also may
submit additional proof.
Commonwealth v. Dantzler, 135 A.3d 1109, 1112 (Pa.Super. 2016) (en
banc) (internal citations and quotation marks omitted). See also
Commonwealth v. Predmore,
199 A.3d 925 (Pa.Super. 2018) (en banc),
appeal denied,
652 Pa. 301,
208 A.3d 459 (2019) (reiterating that pretrial
motion for writ of habeas corpus is appropriate method for defendant to test
whether Commonwealth has established prima facie case; Commonwealth is
entitled to rely on evidence presented at preliminary hearing when responding
to pretrial motion for writ of habeas corpus).
The Crimes Code defines the offenses of conspiracy and robbery, in
relevant part, as follows:
§ 903. Criminal conspiracy
(a) Definition of conspiracy.—A person is guilty 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.
…
(e) Overt act.—No person may be convicted of conspiracy
to commit a crime unless an overt act in pursuance of such
conspiracy is alleged and proved to have been done by him
or by a person with whom he conspired.
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18 Pa.C.S.A. § 903(a), (e).
§ 3701. Robbery
(a) Offense defined.—
(1) A person is guilty of robbery if, in the course of
committing a theft, he:
(i) inflicts serious bodily injury upon another[.]
18 Pa.C.S.A. § 3701(a)(1)(i).
Regarding conspiracy, this Court has explained:
To sustain a conviction for criminal conspiracy, the
Commonwealth must establish that 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. This overt act need not be committed by
the defendant; it need only be committed by a coconspirator.
Proof of a conspiracy is almost always extracted from
circumstantial evidence. The Commonwealth may present
a web of evidence linking the defendant to the conspiracy
beyond a reasonable doubt. The evidence must, however,
rise above mere suspicion or possibility of guilty collusion.
Mere association, presence at the scene, or knowledge of
the crime is insufficient; the Commonwealth must prove
that the defendant became an active participant in the
criminal enterprise and that he had knowledge of the
conspiratorial agreement.
Commonwealth v. Hennigan, 753 A.2d 245, 253 (Pa.Super. 2000) (internal
citations, footnote, and quotation marks omitted).
“[A] prosecution for criminal conspiracy may be brought in any county
where the unlawful combination was formed, or in any county where an overt
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act was committed by any of the conspirators in furtherance of the unlawful
combination.” Commonwealth v. Gross, 627 Pa. 383, 393,
101 A.3d 28,
34 (2014) (internal citation omitted). “The duration of a conspiracy depends
upon the facts of the particular case, that is, it depends upon the scope of the
duration of the agreement entered into by its members.”
Id. at 394,
101 A.3d
at 34 (internal citation omitted).
Instantly, Appellee filed a motion for writ of habeas corpus on the charge
of conspiracy to commit robbery. In his motion, Appellee claimed the
Commonwealth presented insufficient prima facie evidence at the preliminary
hearing that Appellee and his co-defendant conspired to commit robbery (as
opposed to theft) in Blair County, Pennsylvania. The trial court granted
Appellee’s motion for writ of habeas corpus, reasoning as follows:
The testimony from the preliminary hearing shows that the
two defendants worked in concert in New York to rob the
owner of a 2006 Camry. They were seen on surveillance
video together in New York wearing the same clothing they
wore when apprehended, and they both wore ski masks to
conceal their identities. After robbing the victim of his
Camry, they abandoned it at a gas station in New York after
it ran out of gas.
They were again seen on surveillance video at the gas
station in New York with the same clothing and masks.
However, they did not rob the gas station, or commit
violence against any person inside or outside the gas
station; they took a car from a nearby driveway that was
parked with the keys inside it, and began driving.
Although it is clear on a prima facie basis that the
defendants committed a robbery in New York, and
further that the defendants agreed together, or
conspired, to commit theft of the Kia Sorrento parked
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with the keys in it from Hollie Chamberlain, in New
York, and to receive stolen property, to wit the stolen
Kia Sorrento, and took a step in furtherance of the
continued conspiracy to receive stolen property,
namely continuing to drive the car, in both New York
and Pennsylvania, the Commonwealth has produced
no facts to show that the defendants conspired to
commit a robbery in Pennsylvania, much less in Blair
County, Pennsylvania, or that they took a step in Blair
County, Pennsylvania, in furtherance of conspiracy to
commit robbery.
Instead, the testimony about the defendants’ activities in
Blair County was initially that they were driving South on I-
99. The Commonwealth had produced no evidence to show
that the attention of the authorities in Blair County,
Pennsylvania, would have been drawn to [Appellee] if he
had been driving the speed limit.
Although the Commonwealth points to the fact that the
defendants were wearing masks, obscuring their identities
while fleeing is not evidence of intent to inflict serious bodily
injury on another in the course of committing theft. …
…
Nor is the mere fact that a machete was found in the car
evidence of conspiracy to commit robbery; [Appellee]
denied ownership of the machete, and neither [Appellee]
nor co-defendant, who both freely admitted other crimes,
made any statements to the fact that it was their intent to
do anything in Pennsylvania other than travel through it to
go to the Carolinas. The folding knife allegedly used in the
robbery was abandoned in New York and not brought to
Pennsylvania; this can equally be taken as concealment of
the knife or abandonment of the idea to commit robbery.
The court finds that defendants’ actions in New York, their
voiced plan to get to the Carolinas, their traveling through
Blair County wearing masks, and fleeing from police chasing
them for speeding are not sufficient to show a prima facie
case including some overt act indicating specifically that a
conspiracy to commit robbery in Blair County was
formulated or was in effect as they traveled through Blair
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County on I-99.
In this case, viewing the Commonwealth’s testimony in the
light most favorable to the Commonwealth, as we must, …
the court finds that the Commonwealth has presented prima
facie evidence that a conspiracy to commit robbery beg[a]n
in New York and culminated with a robbery in New York.
The Commonwealth’s suspicion and conjecture that the
juvenile defendants were going to begin committing robbery
or conspiring to commit robbery in Pennsylvania, when they
had stopped doing so in New York, does not meet its prima
facie burden.
In summary, based on its reading of the law, which was
greatly aided by the well drafted memorandum of law from
each party, which the original deciding Magisterial District
Judge did not have the opportunity to review, and the
transcript of the preliminary hearing proceedings, this court
finds from the totality of the circumstances in this case and
the case law that the Commonwealth has not proven a
prima facie case that [Appellee] committed conspiracy to
commit robbery in Blair County. The Commonwealth has
shown a prima facie case of other crimes in Blair County
impulsively committed by these juveniles, (see FN 1…), but
not conspiracy to commit robbery.
(Trial Court Opinion at 11-15) (internal citations omitted) (emphasis added).
The trial court accurately summarized the testimony adduced at the
preliminary hearing. The testimony demonstrated that Appellee and his co-
defendant wanted to visit Appellee or his co-defendant’s father in North or
South Carolina but had no means to do so. Appellee and his co-defendant
subsequently committed a robbery in New York on May 27, 2022, during which
time they held up the owner of a Toyota Camry and stole his vehicle. About
two hours away, while still in New York, the car ran out of gas. The men
abandoned the Toyota Camry at the gas station as well as a small folding
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silver bladed knife, which was found in the floorboard of the vehicle. Next,
the men went inside the gas station wearing masks, but they did not rob the
gas station attendant or commit any crimes therein. Instead, they discovered
an unlocked Kia Sorrento in a driveway nearby the gas station, and they stole
that vehicle. The owner of the vehicle was unaware her vehicle was stolen
until later and conceded that no force was used to deprive her of the car. The
next day, while in Pennsylvania, police observed the Kia Sorrento traveling at
an excessive speed and Trooper Griswold effectuated a traffic stop.
Ultimately, a chase ensued, and the vehicle Appellee was driving crashed.
Under these circumstances, we agree with the trial court that the
Commonwealth did not meet its burden to establish a prima facie case that
Appellee committed the offense of conspiracy to commit robbery under
Section 3701(a)(1)(i), in Pennsylvania. In other words, the Commonwealth
presented insufficient prima facie evidence that Appellee and his co-defendant
agreed to inflict serious bodily injury upon another in the course of committing
a theft and took some overt act in furtherance of that agreement in this
jurisdiction. See 18 Pa.C.S.A. §§ 903, 3701(a)(1)(i). See also Gross,
supra;Hennigan, supra. Rather, as the trial court opined, the
Commonwealth presented prima facie evidence that Appellee and his co-
defendant conspired to commit the theft of the Kia Sorrento in New York and
took an overt act in furtherance of that plan while in Pennsylvania by
continuing to drive the stolen vehicle in this state. There is simply no evidence
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on this record that Appellee and his co-defendant committed any overt act in
Pennsylvania in furtherance of a conspiracy to commit robbery. See id.
Therefore, the record supports the trial court’s findings and its legal conclusion
to grant Appellee’s motion for writ of habeas corpus on the charge of
conspiracy to commit robbery is free of legal error. See
Hilliard, supra.
In its second issue, the Commonwealth argues that Appellee’s co-
defendant tendered an admission to the offense of conspiracy to commit
robbery on or about July 7, 2022, when his case was transferred to juvenile
court. The Commonwealth asserts that it agreed to transfer the co-
defendant’s case to juvenile court (but not Appellee’s case) because the co-
defendant was less culpable than Appellee. The Commonwealth submits that
the testimony and evidence presented at Appellee’s preliminary hearing is
consistent with the information presented in the affidavit of probable cause in
both Appellee’s and the co-defendant’s cases, which can be seen as the factual
basis for the co-defendant’s admission to conspiracy to commit robbery. The
Commonwealth emphasizes that the court accepted the co-defendant’s
admission at the adjudicatory hearing as knowing, intelligent, and voluntary.
The Commonwealth maintains that the Pennsylvania Rules of Juvenile Court
Procedure require a court to find a factual basis for an admission before
accepting the juvenile’s admission. The Commonwealth claims the trial court
accepted a factual basis to justify the offense of conspiracy to commit robbery
for the less-culpable co-defendant when it accepted the co-defendant’s
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admission. The Commonwealth concludes that “[t]o accept a factual basis for
conspiracy to commit robbery in the less-culpable co-defendant’s juvenile
admission and to grant a writ of habeas corpus on the same facts leads to
inconsistent and unfair results, and demonstrates an unreasonable exercise of
judgment.” (Commonwealth’s Brief at 32). We disagree that relief is due.
Preliminary, we observe that the Commonwealth did not raise this issue
in its memorandum of law in opposition to Appellee’s motion for writ of habeas
corpus. Rather, the Commonwealth advanced this particular argument for the
first time in its Rule 1925(b) statement. Because the Commonwealth did not
present this argument before the trial court at the appropriate stage of the
proceedings when the trial court would have had an opportunity to consider it
before ruling on Appellee’s motion, the claim is waived. See generally
Commonwealth v. Tucker, 143 A.3d 955 (Pa.Super. 2016), appeal denied,
641 Pa. 63,
165 A.3d 895 (2017) (stating failure to make timely and specific
objection before trial court at appropriate stage of proceedings will result in
waiver of issue on appeal).
Additionally, although the Commonwealth’s brief cites to a proceeding
relating to Appellee’s co-defendant wherein the co-defendant allegedly
admitted to conspiracy to commit robbery, this transcript is not in the certified
record on appeal. The fact that the Commonwealth included this transcript in
the reproduced record is of no moment, as we cannot consider evidence which
is outside of the certified record. See Commonwealth v. Holston, 211 A.3d
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1264 (Pa.Super. 2019) (en banc) (reiterating that our review is limited to
those facts which are contained in certified record and what is not contained
in certified record does not exist for purposes of our review).
Further, the Commonwealth does not develop this argument with
relevant legal authority in its appellate brief. Aside from one blanket citation
to the definition of an abuse of discretion and one citation to a Rule of Juvenile
Court Procedure governing admissions in juvenile court (see Commonwealth’s
Brief at 29, 31), the Commonwealth cites no law in support of its claim. In
other words, the Commonwealth provides no legal authority for its contention
that the court should have considered Appellee’s co-defendant’s admission in
a juvenile adjudicatory proceeding when deciding Appellee’s motion for
writ of habeas corpus in adult criminal court. The Commonwealth’s failure to
develop this issue on appeal with relevant legal authority constitutes waiver
of the claim on appeal on this ground as well. See Pa.R.A.P. 2119(a) (stating
argument shall be divided into as many sections as there are questions
presented, followed by discussion with citation to relevant legal authority).
For all of these reasons, the Commonwealth’s second appellate issue is
waived. Accordingly, we affirm.
Order affirmed.
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DATE: 10/13/2023
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