Com. v. Pickens, E.

J-S17029-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
ERIC C. PICKENS
Appellee No. 2532 EDA 2016
Appeal from the Order Entered July 18, 2016
In the Court of Common Pleas of Philadelphia County
Criminal Division at No: MC-51-CR-0010578-2016
BEFORE: OLSON, STABILE, and MUSMANNO, JJ.
MEMORANDUM BY STABILE, J.: FILED MAY 24, 2017
The Commonwealth appeals from the July 18, 2016 order entered in
the Court of Common Pleas of Philadelphia County, denying the
Commonwealth’s motion to refile charges against Appellee, Eric C. Pickens
(“Pickens”). Following review, we vacate and remand.
Pickens was arrested and charged with firearms violations, terroristic
threats, simple assault, and recklessly endangering another person (“REAP”)
following an April 13, 2016 incident between Pickens and his neighbor, the
complainant, Luis Ayala (“Ayala”).1 At an April 28, 2016 preliminary hearing
____________________________________________
1
18 Pa.C.S.A. §§ 6106(a)(1) (firearms not to be carried without a license);
6108 (carrying firearms on public streets or public property in Philadelphia);
2706(a)(1) (terroristic threats); 2701(a)(1) (simple assault); and 2705
(REAP).
J-S17029-17
before the Honorable Marvin L. Williams, Ayala testified that he was
changing a tire on his van when Pickens approached him, pointed a gun at
him, and said he would “smoke” Ayala if Ayala ever touched his car again.
N.T., 4/28/16, at 4-7. Ayala called the police to report the incident as soon
as Pickens walked away. Id. at 13.
In the course of Ayala’s cross-examination, Pickens’ counsel advised
Judge Williams that Pickens was a security guard. Id. at 10. When the
Judge asked if Pickens had a license to carry, his counsel responded, “I’m
sorry, a CA. I believe it’s in the --.” Id. at 11. The prosecutor interjected,
“Act 235 card, but that is not a license to carry.” Id.2 The Judge
acknowledged that such a card would permit the cardholder to carry his gun
“straight home, straight to work.” Id. at 10-11.
The Commonwealth’s second and final witness was the detective who
executed a search warrant on Pickens’ residence. The detective testified
that he secured a gun from Pickens’ residence but the gun was not loaded
and no magazine or ammunition was found in the residence. Id. at 16-20.
At the conclusion of the hearing, Judge Williams dismissed all charges
____________________________________________
2
See Lethal Weapons Training Act, 22 P.S. § 41 et seq. “The back of the
Act 235 card indicates that the card is not a license to carry a lethal weapon,
but the card needs to be carried by an individual to whom it is issued while
armed with a lethal weapon and while on duty or going to and from duty.”
Commonwealth v. Mitchell, 81 Pa. D. & C.4th 75 (Montgomery Co. 2007).
-2-
J-S17029-17
against Pickens without stating a reason for his ruling on the record. Id. at
21.
The Commonwealth filed a motion to refile the charges. A hearing on
the motion was held on July 18, 2016 before the Honorable Tracy Brandeis-
Roman. The prosecutor explained that the issue in the case was whether
Pickens, with an Act 235 card, “was permitted to have his firearm on the
streets of Philadelphia at the time that he had pointed the firearm and
ma[de] threats towards his neighbor, the complaining witness in this case.”
N.T., 7/18/16, at 4. At the conclusion of the hearing, Judge Brandeis-
Roman denied the Commonwealth’s request to refile, believing she did not
have the ability to overturn Judge Williams’ ruling because they were based
on his credibility determinations relating to the complaining witness. Id. at
12-14. This timely appeal followed.
In its Rule 1925(b) statement of errors complained of on appeal, the
Commonwealth posited, “[T]he lower court erred in refusing to allow refiling
of charges, on the basis of insufficient evidence for a prima facie case, where
a witness testified at the preliminary hearing that [Pickens] pointed a
handgun at him and threatened to shoot him.” Rule 1925(b) Statement,
8/4/16, at 1. In response, Judge Brandeis-Roman filed a Rule 1925(a)
opinion stating,
On appeal, the Commonwealth asserts that this [c]ourt
erred in affirming the dismissal of charges, where a witness
testified at the preliminary hearing that [Pickens] pointed a
handgun at him and threatened to shoot him. Upon further
-3-
J-S17029-17
consideration and review of the record, it is this [c]ourt’s opinion
that the facts set forth in the record demonstrate that the
Commonwealth has met its burden, and the charges should be
refiled.
At the preliminary hearing, evidence was presented that
was sufficient to establish a prima facie case on all charges. The
complaining witness did testify that [Pickens] pointed a gun at
him and threatened him. (See, N.T. April 28, 2016, at pp. 5-6.)1
This testimony was sufficient to demonstrate a prima facie case,
thus satisfying the Commonwealth’s threshold burden. This
[c]ourt had believed that the basis for the dismissal of charges
at the preliminary hearing was a matter of credibility, and that
such a finding could not be overturned. However, upon further
review, this [c]ourt has now correctly concluded that credibility
determinations for preliminary hearings are not applicable.
1
While there may be several trial issues with respect to the
alleged firearms violations, including potential affirmative
defenses to these charges, such issues are not properly before
this [c]ourt at this time.
Rule 1925(a) Opinion, 9/28/16, at 1-2 (citing Commonwealth v.
McCullough, 86 A.3d 901 (2014) (credibility is not a factor in determining
whether Commonwealth has established prima facie case at preliminary
hearing)).
The Commonwealth presents a single issue on appeal:
Did the lower court err in denying the refiling of the charges
against [Pickens] on the basis of insufficient evidence for a prima
facie case, where the Commonwealth established at the
preliminary hearing that [Pickens] pointed a gun at the victim
and threatened to shoot him?
Commonwealth Brief at 4.
“[T]he 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
-4-
J-S17029-17
appellate court’s review is plenary.” Commonwealth v. Karetny, 880 A.2d
505, 513 (Pa. 2005).
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.
Id. at 513-14 (citations omitted). “In determining the presence or absence
of a prima facie case, inferences reasonably drawn from the evidence of
record that would support a verdict of guilty are to be given effect, but
suspicion and conjecture are not evidence and are unacceptable as such.”
Commonwealth v. Packard, 767 A.2d 1068, 1071 (Pa. Super. 2001)
(citation omitted).
The Commonwealth asks us to reverse the trial court’s order in light of
that court’s acknowledgement that credibility determinations are not
appropriate at the preliminary hearing stage and its concession that the
evidence was sufficient to establish a prima facie case of the crimes charged.
Pickens, in response, does not contest the conclusion that credibility is not a
factor at the preliminary hearing stage. Further, Pickens does not argue that
the evidence was insufficient to establish a prima facie case on two charges:
-5-
J-S17029-17
carrying firearms on Philadelphia streets and simple assault. 3 Pickens does
assert the evidence was insufficient to support the remaining charges of
firearms not to be carried without a license, terroristic threats, and REAP.
Regarding the charge of carrying a firearm without a license, as the
Commonwealth recognizes, Pickens “admitted through his counsel that he
only had an ‘Act 235’ card, not a license.” Commonwealth Reply Brief at 6
(citing N.T., 4/28/16, at 10-11). Therefore, the evidence was sufficient to
establish a prima facie case that Pickens carried his gun without a license.
Id. (citing Commonwealth v. McBride, 595 A.2d 589, 592 (Pa. 1991)
(Commonwealth’s use of evidentiary inference to establish prima facie
element of crime was proper). See also Packard, 767 A.2d at 1071(inferences reasonably drawn from the evidence of record may be given
effect if they would support a verdict of guilty). The fact counsel was asked
if Pickens was licensed to carry and acknowledged in response that he had
an Act 235 card, which is not a license to carry, supports the inference
Pickens did not have a license to carry. Therefore, we agree with the
____________________________________________
3
In light of Pickens’ apparent concession that the evidence was sufficient to
establish a prima facie case of firearms on the streets of Philadelphia and
simple assault, we simply note our conclusion that evidence from the
preliminary hearing was sufficient to show that Pickens was on the
streets/sidewalks of Philadelphia when he pointed his gun at Ayala (18
Pa.C.S.A. § 6108) and that he attempted to cause bodily injury to Ayala (18
Pa.C.S.A. § 2701(a)).
-6-
J-S17029-17
Commonwealth that the evidence was sufficient to establish a prima facie
case of carrying a firearm without a license.
Pickens also contends the evidence was insufficient to support a prima
facie case for terroristic threats under 18 Pa.C.S.A. § 2701(a)(1), which
provides that “[a] person commits the crime of terroristic threats if the
person communicates, either directly or indirectly, a threat to [] commit any
crime of violence with intent to terrorize another[.]” Here, Ayala testified
that Pickens pulled a gun from his waistband, pointed it at his torso and
knees from approximately two and a half feet away, and said he would
“smoke” Ayala if he ever touched his car again. N.T., 4/28/16, at 5-6. We
agree with the Commonwealth that Pickens’ verbal threat made while
pointing a gun at Ayala at short range was sufficient to establish a prima
facie case of terroristic threats. See, e.g., Commonwealth v. McCalman,
795 A.2d 412, 418 (Pa. Super. 2002) (defendant’s use offensive language in
conjunction with pointing a gun sufficient to support terroristic threats
charge).4
Pickens also argues that the evidence was insufficient to support a
prima facie case of REAP. A person commits REAP “if he recklessly engages
in conduct which places or may place another person in danger of death or
____________________________________________
4
Pickens contends that the gun located at his residence was not loaded. We
see no significance in this fact as it does have any bearing on whether it was
loaded at the time Pickens threatened Ayala or whether Pickens’ conduct
was sufficient to establish a prima facie case of terroristic threats.
-7-
J-S17029-17
serious bodily injury.” 18 Pa.C.S.A. § 2705. Pickens claims that his gun was
not loaded when it was located in his residence so it must have been
unloaded when he pointed it at Ayala. The fact the gun was unloaded at a
later time is irrelevant and, again, the court may give effect to reasonable
inferences to infer the existence of crucial elements, even in absence of
direct evidence. See also Packard, 767 A.2d at 1071; McBride, 595 A.2d
at 592. We find the evidence was sufficient to support a prima facie case of
REAP.
We conclude the evidence was sufficient to support a prima facie case
of all crimes charged. Therefore, we vacate the trial court’s July 18, 2016
order and remand for further proceedings consistent with this Memorandum.
Order vacated. Case remanded. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/24/2017
-8-