Com. v. Kirby, N.

J-S65044-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
NICHOLAS KIRBY,
Appellee No. 1140 EDA 2014
Appeal from the Order Entered February 6, 2014
in the Court of Common Pleas of Philadelphia County
Criminal Division at No.: CP-51-CR-0012235-2013
BEFORE: PANELLA, J., OLSON, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED JANUARY 13, 2015
The Commonwealth appeals1 from the order of February 6, 2014,
which granted the motion of Appellee, Nicholas Kirby, to quash certain of the
charges against him.2 Under the circumstances of this case, we hold the
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
The Commonwealth may take an appeal of right from an order that does
not end the entire case if the Commonwealth certifies in the notice of appeal
that the order will terminate or substantially handicap the prosecution. See
Pa.R.A.P. 311(d); see also Commonwealth v. Torres, 764 A.2d 532, 536,
n.2 (Pa. 2001). The Commonwealth has filed such a certification in this
case.
2
The trial court quashed charges of aggravated assault, 18 Pa.C.S.A. §
2702(a)(1); terroristic threats, 18 Pa.C.S.A. § 2706(a)(1); and recklessly
endangering another person, 18 Pa.C.S.A. § 2705. (See Order, 2/06/14, at
unnumbered page 1). At the hearing on Appellee’s motion, the
Commonwealth agreed to the dismissal of the terroristic threats charge.
(Footnote Continued Next Page)
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Commonwealth did establish a prima facie case of aggravated assault.
Accordingly, we reverse and remand for trial.
We take the underlying facts in this matter from the trial court’s June
10, 2014 opinion.
On March 18, 2013, Allen Taylor [Taylor] and his wife,
Regina [Regina], were walking home in Philadelphia, when
[Appellee] and another unknown male walked past them and
approached a neighbor’s door. One of the men began kicking the
neighbor’s door. [Taylor] testified that he asked the men to
stop, and told [Regina] to go call 911. At that point, [Appellee]
started to walk away while the other male remained at the
neighbor’s front door. [Regina] was on her step with their dog.
When her dog barked, [Appellee] threatened [Regina], stating,
“I will kill you and your dog.” At this point, [Taylor] ran up to
position himself between [Regina] and [Appellee] to protect
[her]. [Taylor] testified that [Regina] yelled “look out,” at which
time the other unknown male jumped onto Taylor’s back, and
[Appellee] punched Taylor once in the face. [Taylor] stated that
he “went down” as a result of being tackled by the other male,
and he “couldn’t tell you much after that.” [Taylor] could not
state who hit him after that, just that he was beaten, and the
men then walked away.
As a result of the incident, [Taylor] testified that his leg
was broken, requiring rods and screws being implanted, and he
suffers from dizziness and memory loss. [Taylor] did not testify
as to how his leg was broken, as to whether from the fall or
otherwise. There was no testimony that any weapon, other than
fists, was used during the ordeal. The complainant testified that
he did not know where he fell, he did not know which defendant
did what once he fell, and that the assault stopped when the two
men walked away. As to [Appellee], [Taylor] could only testify
that [Appellee] punched him once. The Commonwealth did not
call [Regina], or any other witnesses to the incident to testify.
_______________________
(Footnote Continued)
(See N.T. Motion Hearing, 2/06/14, at 5). In its brief, the Commonwealth
challenges only the quashal of the aggravated assault charge. (See
Commonwealth’s Brief, at 4).
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(Trial Court Opinion, 6/10/14, at 3-4) (record citations omitted).
A preliminary hearing in this matter took place on September 27,
2013, and the court bound Appellee over for trial on charges of aggravated
assault, simple assault, conspiracy, terroristic threats, and recklessly
endangering another person. On October 4, 2013, Appellee filed a motion to
quash, wherein Appellee argued that the trial court should dismiss all
charges except for simple assault. (See Motion to Quash, 10/04/13, at
unnumbered pages 1-2; N.T. Motion Hearing, 2/06/14, at 2).3 Following
argument, the trial court dismissed all charges except those of simple
assault and conspiracy. (See id. at 6).
On March 6, 2014, the Commonwealth filed a motion to reconsider the
quashal of the aggravated assault charge only. (See Motion for
Reconsideration, 3/06/14, at 3-4). The trial court denied the motion for
reconsideration on March 12, 2014. The instant timely appeal followed. The
trial court did not order the Commonwealth to file a concise statement of
errors complained on appeal pursuant to Pa.R.A.P. 1925(b). See Pa.R.A.P.
1925(b). Nevertheless, the Commonwealth filed a Rule 1925(b) statement
on April 11, 2014. The trial court issued an opinion on June 10, 2014. See
Pa.R.A.P. 1925(a).
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3
The trial court deemed the motion to quash to be a petition for a writ of
habeas corpus. (See Trial Ct. Op., 6/10/14, at 2).
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On appeal, the Commonwealth raises a single question for our review:
Did the evidence at the preliminary hearing establish a
prima facie case of aggravated assault where [Appellee] and an
accomplice beat the victim for five minutes, causing him to
suffer a concussion and a broken leg?
(Commonwealth’s Brief, at 4).
Our standard of review 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. 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). Further, we note that 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 was committed and the probability the
defendant could be connected with the crime. Its purpose is not to prove
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defendant’s guilt.” Commonwealth v. Jackson, 849 A.2d 1254, 1257 (Pa.
Super. 2004) (citation omitted).
A person commits aggravated assault if he:
(1) attempts to cause serious bodily injury to another, or causes
such injury intentionally, knowingly or recklessly under
circumstances manifesting extreme indifference to the value of
human life.
18 Pa.C.S.A. § 2702(a)(1). We have defined “serious bodily injury” as
“[b]odily injury which creates a substantial risk of death or which causes
serious permanent disfigurement, or protracted loss or impairment of the
function of any bodily member or organ.” 18 Pa.C.S.A. § 2301.
Here, trial court found that the testimony at the preliminary hearing
demonstrated that Appellee only hit the victim, Taylor, once and the
testimony was “sparse” as to what occurred when the victim was on the
ground. (Trial Ct. Op., at 5). The record does not support this finding.
Taylor testified that Appellee threatened to kill his wife Regina; when Taylor
moved between Appellee and Regina, the co-conspirator jumped on his
back, and Appellee punched him. (See N.T. Preliminary Hearing, 9/27/13,
at 5-6). While Taylor had little specific memory of what occurred after he
fell to the ground, he testified that he remembered one of the men who was
on top of him hitting him in the face and leg, and both men “were beating on
me.” (Id. at 11; see also id. at 6) (“I was being hit all over.”). Further,
the testimony at the preliminary hearing established that, because of the
incident, Taylor sustained a concussion and a broken leg, which required the
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insertion of rods and screws, causing him to miss two months of work; he
continues to suffer from dizzy spells and memory loss. (See N.T.
Preliminary Hearing, 9/27/13, at 6-7).
Viewing the evidence in the light most favorable to the
Commonwealth, the Commonwealth established a prima facie case that
Appellee who was acting in concert with a second man, caused serious bodily
injury to Taylor. See Commonwealth v. Bradley, 69 A.3d 253, 257 (Pa.
Super. 2013), appeal denied, 79 A.3d 1095, (Pa. 2013) (broken arm was
sufficient to show serious bodily injury); Commonwealth v. Rightley, 617
A.2d 1289, 1295 (Pa. Super. 1992) (concussion was sufficient to show
serious bodily injury).
Moreover, Appellee and his co-conspirator acted recklessly under
circumstances manifesting extreme indifference to the value of human life,
when, without provocation, they jumped Taylor and beat him. See
Commonwealth v. Patrick, 933 A.2d 1043, 1046 (Pa. Super. 2007),
appeal denied, 940 A.2d 364 (Pa. 2007) (Commonwealth established prima
facie case for aggravated assault where defendant made surprise attack on
victim, punching him on head, which knocked him to ground and showed
reckless indifference under circumstances).
In addition, the Commonwealth made a prima facie showing that
Appellee attempted to cause serious bodily injury. We have stated that,
“[t]he intent to cause serious bodily harm may be shown by circumstances
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surrounding the incident. Furthermore, the conduct giving rise to the
inference that the defendant intended to inflict serious bodily harm need not
in itself be life threatening.” Commonwealth v. Caterino, 678 A.2d 389,
391 (Pa. Super. 1996), appeal denied, 684 A.2d 555 (Pa. 1996) (citations
omitted). As stated above, the circumstances surrounding the incident
demonstrated that Appellee, without provocation, threatened to kill Regina,
and he and his co-conspirator beat Taylor for approximately five minutes
while he was on the ground. This was sufficient to establish a prima facie
case for aggravated assault. See Commonwealth v. Glover, 449 A.2d
662, 666 (Pa. Super. 1982), affirmed, 458 A.2d 935 (Pa. 1983) (evidence
sufficient to sustain conviction for aggravated assault where defendant,
acting with two other men, struck victim repeatedly).
Thus, we find that the trial court erred in quashing the charge of
aggravated assault. The Commonwealth established a prima facie case that
Appellee committed aggravated assault. See Karenty, supra at 513-14;
Patrick, supra at 1046. Accordingly, we reverse the trial court’s order and
remand the case for proceedings consistent with this decision.
Order reversed. Case remanded. Jurisdiction relinquished.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/13/2015
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