Com. v. Duplessis, R.

J-A26038-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. :
:
RICARDO DUPLESSIS :
:
Appellee : No. 2601 EDA 2021
Appeal from the Order Entered November 17, 2021
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0007098-2021
BEFORE: BOWES, J., KING, J., and PELLEGRINI, J.*
MEMORANDUM PER CURIAM: FILED MARCH 3, 2023
Appellant, the Commonwealth of Pennsylvania, appeals from the order
entered in the Philadelphia County Court of Common Pleas, which granted the
motion to quash filed by Appellee, Ricardo Duplessis, and dismissed the
charges brought in the criminal information. We reverse and remand.
The trial court set forth the relevant facts of this appeal as follows:
On December 30, 2020, Alphonzo Anderson (“Decedent”),
was shot and killed at 1109 Rosalie Street. [Appellee] was
arrested and charged with Murder and associated charges
on January 4, 2021. A preliminary hearing was held on
August 9, 2021, where the Commonwealth called Marquita
Grasty as the only testifying witness. Ms. Grasty’s
identification of [Appellee] was stipulated between counsel
as Ms. Grasty and [Appellee] share a child. Ms. Grasty
testified that she and [Appellee] have known each other
since 2011, dating on and [off] for approximately six years.
Ms. Grasty gave birth to their child in 2017, and officially
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
J-A26038-22
ended the relationship with [Appellee] in 2019. Over the
course of her relationship with [Appellee], Ms. Grasty began
dating the Decedent on and off in 2016. [Appellee] was
aware of this relationship.
On the night of December 29, 2020, Ms. Grasty was at home
where she called the Decedent a Lyft at approximately
10:00 p.m. While Ms. Grasty intended to send a screenshot
of the Lyft ride to the Decedent, she accidently sent the
screenshot to [Appellee], and her mother. [Appellee]
responded to the text message asking if Ms. Grasty would
speak on the phone. [Appellee] further stated that Ms.
Grasty would not speak to him since the Decedent would be
at her home. Ms. Grasty replied to [Appellee’s] message,
stating “Mr. Anderson was coming to get something out of
her car and then going home.”
The Decedent arrived at Ms. Grasty’s home at
approximately 11:00 p.m. [Appellee] texted Ms. Grasty
stating, “he was going for a walk.” Ms. Grasty did not
respond. The Decedent was inside Ms. Grasty’s home for a
few hours before leaving to sleep in Ms. Grasty’s Honda
Accord, parked in the rear of her home. To Ms. Grasty’s
knowledge, people did not usually travel in the back area of
her home, but [Appellee] had previously been in that area.
When the Decedent left to sleep in the car, Ms. Grasty went
to her bedroom to go to sleep. Overnight, Ms. Grasty woke
up to the sound of four gunshots. Ms. Grasty sent a text
message, checking on the Decedent. Without receiving a
response, Ms. Grasty went back to sleep under the
assumption the Decedent was still asleep. At approximately
7:00 a.m. Ms. Grasty walked outside to find the Decedent
sitting in the car, covered in blood. Counsel further
stipulated that if Officers McDonna and McCabe were to
testify, they would attest to arriving at 1109 Rosalie Street
on December 30, 2020 at approximately 7:39 a.m. where
they found the Decedent sitting in a gray Honda Accord with
gunshot wounds to the face.
A video compilation created during the investigation was
presented at the preliminary [hearing]. Ms. Grasty was
previously shown the video during an initial interview with
the homicide unit. While on the stand, Ms. Grasty viewed
the same video with the inclusion of additional angles.
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Testifying to the video compilation, Ms. Grasty identified
[Appellee] as the individual seen walking on Summerdale
Avenue. Despite defense counsel objections, Ms. Grasty’s
identification of [Appellee] was admitted. Ms. Grasty further
testified that she was able to accurately identify [Appellee]
based on familiarity with his general demeanor due to their
long-term relationship. Although [Appellee] knew Ms.
Grasty to park her car behind her home, Ms. Grasty testified
that [Appellee] would not have known the Decedent was
sleeping in her car. Ms. Grasty initially said that she did not
know [Appellee] to own a gun but attested to his history of
violence. In 2019, [Appellee] choked Ms. Grasty during a
domestic altercation. Ms. Grasty originally testified that
[Appellee] did not make any comment regarding her
relationship to the Decedent during the incident, however,
upon refreshing her recollection with a police statement, it
was established that [Appellee] wrote in a letter to Ms.
Grasty “while I was choking you, all I saw was your
boyfriend [Decedent].” Further testimony based on the
prior statement revealed that Ms. Grasty was aware
[Appellee] owned a firearm that he stored in his basement
ceiling.
On cross examination, Ms. Grasty testified that multiple
residents regularly parked their vehicles in the alley located
behind her home. Ms. Grasty was aware that the Decedent
was charged with dealing drugs and carrying an illegal
firearm but was unaware of his involvement at the time of
his death. Ms. Grasty admitted that there was nothing
specifically unique about [Appellee’s] walk to make it
identifiable, nor had [Appellee] suffered an injury that would
make his walk distinctive. The only time [Appellee] went to
Ms. Grasty’s home at night was upon his release from jail in
2020 to pick up their son.
Lastly, counsel stipulated to the video compilation which is
summarized as follows: The video, time stamped at
approximately 5:45 a.m., shows an individual walking down
Summerdale Ave. toward the back alley where Ms. Grasty’s
parked vehicle is located. An individual is seen dressed in
plain, dark, clothing and black shoes. Video surveillance
from a private residential home located on Rosalie Street,
showed the individual entering the alleyway and walking in
the direction of the gray Honda Accord. The individual
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proceeds to investigate the vehicle and remove a firearm
from his jacket pocket. Surveillance shows the individual
walking around the car with the firearm in hand. The
individual then walks to the other side of the alleyway, out
of view of the camera. Approximately [two] minutes lapse,
and the individual walks past the car again without the
firearm present. The next camera angle shows the
individual standing at the Summerdale Ave. entrance to the
alleyway for several minutes. After, the individual returns
to the alley he is seen walking towards the car, with the
firearm in hand. The individual approaches the car, looks
inside, and proceeds to fire [three] gunshots into the car.
The individual then runs out [of] the alley toward Frontenac
Street. The video surveillance concludes on Frontenac
Street showing the same individual dressed in dark clothing
exiting the alley way and running up the street.
(Trial Court Opinion, filed 3/17/22, at 2-5) (internal footnotes and record
citations omitted).
At the conclusion of the preliminary hearing, Appellee was held for court
on charges of murder, carrying a firearm without a license, carrying a firearm
on public streets in Philadelphia, and possessing instruments of crime (“PIC”).1
On September 22, 2021, Appellee filed a motion to quash the charges. In it,
Appellee argued that the Commonwealth “failed to establish a prima facie
case” as to any of the charges. (Motion, filed 9/22/21, at ¶3). The court
conducted another hearing on November 17, 2021. That same day, the court
granted Appellee’s motion and dismissed all charges. Specifically, the court
determined “that the Commonwealth failed to establish a prima facie case of
identity.” (N.T. Pretrial Hearing, 11/17/21, at 5).
____________________________________________
1 18 Pa.C.S.A. §§ 2502, 6106, 6108, and 907, respectively.
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The Commonwealth timely filed a notice of appeal on December 7, 2021.
On January 4, 2022, the court ordered the Commonwealth to file a Pa.R.A.P.
1925(b) concise statement of errors complained of on appeal. The
Commonwealth timely filed its Rule 1925(b) statement on January 18, 2022.
The Commonwealth now raises one issue for our review:
Did the [trial] court err in ruling that the evidence was
insufficient to establish a prima facie case that [Appellee]
committed the crimes charged, where [Appellee’s] ex-
girlfriend—who had known him for more than eight years—
identified him from a surveillance video as the person who
repeatedly shot the victim as he lay sleeping in a car parked
in an alleyway behind her house?
(Commonwealth’s Brief at 4).
The following principles apply to this Court’s review of an order granting
a pretrial petition for writ of habeas corpus:
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. Whether the Commonwealth satisfied its
burden of establishing a prima facie case for each charged
crime is a question of law, to which this Court’s standard of
review is de novo and our scope of review is plenary.
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
evidence presented at the preliminary hearing and also may
submit additional proof.
Commonwealth v. Wyatt, 203 A.3d 1115, 1117 (Pa.Super. 2019) (internal
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citations and quotation marks omitted).
On appeal, the Commonwealth emphasizes Ms. Grasty’s preliminary
hearing testimony identifying Appellee as the individual depicted in the
surveillance video. In support of this identification, the Commonwealth
reiterates that Ms. Grasty “was intimately familiar with [Appellee’s]
appearance, gait, and demeanor because she had known him for nine years,
dated him for six years, and had a child with him.” (Commonwealth’s Brief at
12). To the extent that the trial court found Ms. Grasty’s testimony
unconvincing, the Commonwealth insists that the court made “an improper
pretrial credibility determination.” (Id. at 13). The Commonwealth concludes
that it presented a prima facie case as to each of the criminal charges, and
this Court must reverse the order granting Appellee’s pretrial motion. We
agree.
“The purpose of a preliminary hearing is to determine whether the
Commonwealth has made out a prima facie case for the offenses charged.”
Commonwealth v. Ouch, 199 A.3d 918, 923 (Pa.Super. 2018).
The preliminary hearing is not a trial. The principal function
of a preliminary hearing is to protect an individual’s right
against an unlawful arrest and detention. At this hearing
the Commonwealth bears the burden of establishing at least
a prima facie case that a crime has been committed and that
the accused is probably the one who committed it.
* * *
In addition, the evidence should be such that if presented
at trial, and accepted as true, the judge would be warranted
in allowing the case to go to the jury. The standard clearly
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does not require that the Commonwealth prove the
accused’s guilt beyond a reasonable doubt at this stage.
Most significant in this appeal, the weight and
credibility of the evidence is not a factor at this stage.
Commonwealth v. Hilliard, 172 A.3d 5, 10 (Pa.Super. 2017) (emphasis
added; internal citations and quotation marks omitted). “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.” Ouch, supra at 923 (quoting
Commonwealth v. Marti, 779 A.2d 1177, 1180 (Pa.Super. 2011)).
Additionally, the Pennsylvania Crimes Code defines first-degree murder
as follows:
§ 2502. Murder
(a) Murder of the first degree.―A criminal homicide
constitutes murder of the first degree when it is committed
by an intentional killing.
18 Pa.C.S.A. § 2502(a).
To find a defendant guilty of first-degree murder a jury must
find that the Commonwealth has proven that he or she
unlawfully killed a human being and did so in an intentional,
deliberate and premeditated manner.
It is the element of a willful, premeditated and
deliberate intent to kill that distinguishes first-degree
murder from all other criminal homicide. …
The mens rea required for first-degree murder, specific
intent to kill, may be established solely from circumstantial
evidence.
Commonwealth v. Schoff, 911 A.2d 147, 159-60 (Pa.Super. 2006) (internal
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citations and quotation marks omitted).
The Crimes Code also defines the offense of PIC as follows:
§ 907. Possessing instruments of crime
(a) Criminal instruments generally.—A person
commits a misdemeanor of the first degree if he possesses
any instrument of crime with intent to employ it criminally.
* * *
(d) Definitions.—As used in this section, the following
words and phrases shall have the meanings given to them
in this subsection:
* * *
“Instrument of crime.” Any of the following:
(1) Anything specially made or specially adapted
for criminal use.
(2) Anything used for criminal purposes and
possessed by the actor under circumstances not
manifestly appropriate for lawful uses it may have.
18 Pa.C.S.A. § 907(a), (d).
The Uniform Firearms Act provides, in relevant part, as follows:
§ 6106. Firearms not to be carried without a license
(a) Offense defined.—
(1) Except as provided in paragraph (2), any
person who carries a firearm in any vehicle or any person
who carries a firearm concealed on or about his person,
except in his place of abode or fixed place of business,
without a valid and lawfully issued license under this
chapter commits a felony of the third degree.
* * *
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§ 6108. Carrying firearms on public streets or public
property in Philadelphia
No person shall carry a firearm, rifle or shotgun at any
time upon the public streets or upon any public property in
a city of the first class unless:
(1) such person is licensed to carry a firearm; or
(2) such person is exempt from licensing under section
6106(b) of this title (relating to firearms not to be carried
without a license).
18 Pa.C.S.A. §§ 6106(a)(1) and 6108.
Instantly, the record shows that Ms. Grasty first met Appellee in 2011,
and she gave birth to his child in 2017. (See N.T. Preliminary Hearing, 8/9/21,
at 8-9). After providing some additional context for this years-long
relationship, Ms. Grasty unambiguously identified Appellee as the individual
depicted in the surveillance video:
[PROSECUTOR]: Does Homicide then show you some
video from the area around your house?
[WITNESS]: Yes.
[PROSECUTOR]: After you watch the video, do you
recognize anyone in the video?
[WITNESS]: Yes.
[PROSECUTOR]: Who do you recognize in the video?
[WITNESS]: [Appellee].
(Id. at 19-20).
Thereafter, the Commonwealth played a “compilation video,” which
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included images captured by several different cameras on the morning of the
shooting. (Id. at 20). Again, Ms. Grasty identified Appellee as the individual
in the video:
[PROSECUTOR]: Ms. Grasty, can you see this individual
walking?
[WITNESS]: Yes.
[PROSECUTOR]: Do you recognize that walk?
[WITNESS]: Yes.
[PROSECUTOR]: Whose walk is that?
[WITNESS]: [Appellee].
(Id. at 23).
At that point, defense counsel objected and argued that Ms. Grasty’s
testimony was “not a reliable identification because of our inability to see” a
clear image of the individual on the video. (Id. at 24). The court
acknowledged that “[y]ou can’t necessarily see who that is” in the video, but
Ms. Grasty made a permissible identification “based on a walk.” (Id.) When
testimony resumed, the prosecutor confirmed that Ms. Grasty was familiar
with Appellee’s walk and his “general demeanor.” (Id. at 25). Ms. Grasty
also stated that she had seen Appellee wear clothing that was similar to the
wardrobe worn by the individual in the video. (See id.)
Despite this evidence, the trial court determined that the
Commonwealth failed to establish that Appellee was the individual depicted in
the surveillance video. The court stated:
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Here, evidence established that a premeditated, intentional
killing amounting to first-degree murder occurred on
December 30, 2020. However, the Commonwealth failed to
[demonstrate] that Appellee was, more likely than not, the
individual who was responsible for the killing. During the
preliminary hearing, the Commonwealth presented a video
compilation and stipulated to the summary. Although the
video accurately depicts the events of the crime, lay witness
identification of the individual shown was not sufficient given
the lack of identifiable factors.
* * *
The video vaguely depicts an individual wearing dark
clothing without identifying graphics or apparel logos.
Additionally, the individual wore a hood, covering the head
and a significant portion of the face. The face of the
individual was not revealed in any of the varying camera
angles presented.
* * *
Although circumstantial evidence may create a logical
connection as to [Appellee’s] motive, the witness
identification based solely on her relationship with
[Appellee,] in the absence of further corroborating evidence,
is insufficient to establish that Appellee is responsible for the
killing.
(Trial Court Opinion at 7-9).
On this record, we must disagree with the court’s conclusion that the
Commonwealth failed to provide an adequate identification of Appellee. Ms.
Grasty’s testimony definitively established: 1) she had known Appellee for
years; 2) she was familiar with his appearance and demeanor; and 3) she
believed Appellee was the individual depicted in the video. Under the totality
of these circumstances, one could reasonably infer that Appellee was
responsible for the shooting. See Wyatt, supra. The trial court’s decision to
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the contrary amounts to an impermissible evaluation of the weight of the
evidence at the preliminary hearing stage. See Hilliard, supra.Our review of the testimony produced at the preliminary hearing, viewed
in the light most favorable to the Commonwealth and accepted as true at this
juncture, leads us to conclude that the Commonwealth presented sufficient
evidence to establish a prima facie case as to murder, PIC, and the firearms
charges filed against Appellee. See Ouch, supra; Hilliard, supra.Accordingly, we reverse the order granting Appellee’s motion to quash and
remand this case for further proceedings.
Order reversed. Case remanded. Jurisdiction relinquished.
Judge Bowes joins this memorandum.
Judge Pellegrini files a dissenting memorandum.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/3/2023
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