Com. v. Pinckney, D.

J-A08039-16
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. :
:
DEMETRIUS PINCKNEY, :
:
Appellee : No. 1385 EDA 2014
Appeal from the Order April 3, 2014
in the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): MC-51-CR-0040457-2013
BEFORE: BOWES, OLSON, and STRASSBURGER,* JJ.
MEMORANDUM BY: STRASSBURGER, J.: FILED JUNE 07, 2016
The Commonwealth appeals from the April 3, 2014 order denying its
motion to refile charges against Demetrius Pinckney (Appellee). After
review, we reverse the lower court’s order and remand for further
proceedings.
On October 18, 2013, Appellee was arrested and charged with two
violations of the Uniform Firearms Act: possession of a firearm without a
license and possession of a firearm on the streets of Philadelphia. On
December 10, 2013, at the preliminary hearing on those charges, Officer
Timothy Gibson testified that on the evening of October 17, 2013, he was on
patrol and was called to investigate the report of a robbery-in-progress near
the intersection of 10th and Susquehanna Streets in Philadelphia. The victim
of the alleged robbery was placed in Officer Gibson’s patrol vehicle and
*Retired Senior Judge assigned to the Superior Court.
J-A08039-16
driven around the area in an attempt to identify a suspect. As they
approached the intersection of 12th and Susquehanna Streets, the victim
observed Appellee and identified him as the robber.1 Officer Gibson testified
that he then exited his patrol car and ordered Appellee to stop. He observed
Appellee reach for a large bulge at the front of his waistband and run to the
front door of 2135 North 12th Street. Because he suspected Appellee was
armed, Officer Gibson called for backup instead of pursuing Appellee into
2135 North 12th Street. Minutes later, Appellee was apprehended as he
exited the back door of the home. Following a search, a silver magazine
containing live .45 caliber ammunition was recovered from the kitchen sink
of the home and a black Ruger .45 caliber handgun with a silver slide was
recovered from the tank of an uninstalled toilet on the second floor.
At the end of the preliminary hearing, the Honorable Marvin L.
Williams discharged the complaint against Appellee for lack of evidence. On
December 17, 2013, the Commonwealth filed notice of its intent to refile
charges against Appellee.
A hearing on the Commonwealth’s motion to refile charges was held
on April 2 and 3, 2014. In addition to the facts elicited at the preliminary
hearing, the Commonwealth produced the testimony of Officer Leonard
Williams who interviewed Appellee after his arrest and took a statement
1
It was later determined that the robbery victim misidentified Appellee as
the person who robbed her. This information was clarified by the
Commonwealth at the hearing on its motion to refile charges. N.T.,
4/2/2014, at 5-11.
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wherein Appellee confessed to possession of the handgun recovered from
2135 North 12th Street. Following the hearing, the Honorable Joan A. Brown
determined that the Commonwealth had failed to present a prima facie case
and denied the motion to refile charges. This timely appeal followed. Both
the Commonwealth and the lower court complied with Pa.R.A.P. 1925.
The Commonwealth presents one issue for this Court’s review: “Did
the lower court err in holding that the Commonwealth failed to present
prima facie evidence that [Appellee] violated the Uniform Firearms Act
where he was unlicensed, he confessed to carrying a gun, and police
recovered the gun after he discarded it in a nearby toilet?” Commonwealth’s
Brief at 4.
We address the Commonwealth’s claim mindful of the following. It is
well-settled that “[t]he 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.” Commonwealth v. Sebek, 716 A.2d 1266,
1268-69 (Pa. Super. 1998) (emphasis and quotation omitted).
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.
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Commonwealth v. Karetny, 880 A.2d 505, 513-14 (Pa. 2005) (citations
omitted). “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.” Id. at 513.
The relevant portions of the Uniform Firearms Act at issue here
required that the Commonwealth offer evidence that Appellee carried a
firearm, as that term is defined by statute, concealed on or about his
person, without a valid and lawfully issued license to do so. 18 Pa.C.S.
§ 6106. Further, the Commonwealth must prove that he carried this firearm
on the public streets in Philadelphia, a city of the first class where such
possession is prohibited. 18 Pa.C.S. § 6108.
The lower court determined that the Commonwealth had failed to meet
its burden because “[t]he incident took place at night and happened very
quickly” and Officer Gibson’s belief that Appellee possessed a firearm was
purely speculative. Lower Court Opinion, 1/22/2015, at 3-4. We disagree.
The facts presented herein demonstrate that the Commonwealth met
its burden. Officer Gibson testified that once Appellee was identified by the
robbery victim, he ordered Appellee to stop, at which time Appellee grabbed
at a bulge on his waistband and ran to the door of a rowhome. Appellee was
apprehended minutes later, exiting the back door of the home. A resident of
the home gave the officers permission to search and a firearm and magazine
were recovered. Appellee did not have a license to carry a concealed
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firearm. Following his arrest, Appellee confessed to possession of the
firearm and admitted that he hid the magazine and the gun in 2135 North
12th Street.
In order to establish a prima facie case, “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.” Karetny, 180
A.2d at 514.2 In light of this standard, we conclude that the lower court
erred in denying the Commonwealth’s motion to refile charges against
Appellee. Accordingly, we vacate the lower court’s order and remand for
further proceedings.
Order reversed. Case remanded. Jurisdiction relinquished.
2
It is immaterial for our purposes that others were present in the home, or
that Appellee was later determined not to be the perpetrator of the robbery.
Those issues, and the validity of Appellee’s confession, may be best
challenged at a suppression hearing or argued at trial. See
Commonwealth v. Marti, 779 A.2d 1177, 1180 (Pa. Super. 2001) (stating,
“The weight and credibility of the evidence are not factors at [the pre-trial]
stage, and the Commonwealth need only demonstrate sufficient probable
cause to believe the person charged has committed the offense.”).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/7/2016
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