Com. v. Fretts, J.

J-A10035-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
JORGE FRETTS : No. 2443 EDA 2019
:
Appellee :
Appeal from the Order Entered August 14, 2019
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0002763-2019
BEFORE: BOWES, J., SHOGAN, J., and PELLEGRINI, J.*
MEMORANDUM BY PELLEGRINI, J.: FILED AUGUST 14, 2020
The Commonwealth appeals from the order of the Court of Common
Pleas of Philadelphia County (trial court) granting a pretrial motion to quash
and dismiss charges of homicide by vehicle, involuntary manslaughter and
recklessly endangering another person against Jorge Fretts (Fretts). After
review, we reverse and remand for further proceedings.
On November 28, 2017, Fretts was driving a garbage truck when he
struck and killed Emily Fredericks (Fredericks) while she was riding a bicycle.
The collision occurred at the intersection of Spruce and 11th Streets in Center
City Philadelphia. Just before the collision, Fretts and Fredericks were
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* Retired Senior Judge assigned to the Superior Court.
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traveling beside each other on Spruce Street, which is a one-way street with
a bike lane on the right-hand side. About 125 feet before the intersection,
the bike lane becomes a right-turn lane that motorists must yield to cyclists.
Unaware that someone was to his right in the bike lane, Fretts made a right
turn onto 11th Street and into the path of Fredericks, knocking her to the
ground and running her over with the truck’s wheels resulting in her death.
During their investigation, the Commonwealth obtained two videos
related to the collision. The first was from the intersection and showed the
actual collision. According to the Commonwealth, the video shows that Fretts
did not use his turn signal before turning. The other video was from inside
the cab of the truck. Among other things, the Commonwealth believes that
the video shows Fretts shuffling through papers in the center console just
before turning his truck. Based in large part on these videos, the
Commonwealth charged Fretts with homicide by vehicle, involuntary
manslaughter and recklessly endangering another person.1
At the April 17, 2019 preliminary hearing, Fretts stipulated to the two
videos. After marking both videos for identification as C-2 and C-3, the
Commonwealth showed them several times during its direction of its sole
witness, an Accident Investigation District (AID) officer. Similarly, Fretts
replayed them multiple times during his cross-examination of the officer.
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1 75 Pa.C.S. § 3732(a), 18 Pa.C.S. §§ 2504(a) and 2705, respectively.
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Despite marking the videos for identification, the Commonwealth never
admitted them into evidence. At the conclusion of the hearing, all charges
were held for court.
After being bound over for court, Fretts filed a motion to quash the
return of transcript claiming the Commonwealth failed to make out a prima
facie case at the preliminary hearing.2 As part of his motion, Fretts submitted
a USB drive containing multiple videos and photographs but not the two videos
shown at the preliminary hearing. At the August 14, 2019 hearing on the
motion, the Commonwealth did not show the videos or enter them into
evidence for the trial court to view. At the conclusion of the hearing, the trial
court granted the motion and dismissed all charges without ever viewing the
videos. On August 23, 2019, the Commonwealth filed a notice of appeal
certifying that the trial court’s order substantially handicapped its prosecution
under Pa.R.A.P 311.3
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2“A defendant may challenge the sufficiency of the evidence presented by the
Commonwealth at the preliminary hearing by filing a motion for Writ of Habeas
Corpus in Common Pleas Court. In Philadelphia County, this motion is
generally referred to as a Motion to Quash Return of Transcript.”
Commonwealth v. McBride, 595 A.2d 589, 590 n.2 (Pa. 1991).
3Fretts contends that the appeal should be quashed because it is interlocutory
and its remedy is to refile those charges. However, under Philadelphia County
Local Criminal Rule 500(H), Common Pleas Motions Court judges’ orders
discharging an accused are final orders subject to appellate review. See
Commonwealth v. Weigle, 997 A.2d 306, 308 n.5 (Pa. 2010).
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Despite filing its notice of appeal a week earlier, on August 30, 2019,
the Commonwealth hand-delivered to the trial court a USB drive with the two
videos that were shown at the preliminary hearing. After viewing the videos,
the trial court now believes there was prima facie evidence for the charges to
go to trial. Accordingly, the trial court requests that we vacate its order
granting the motion to quash and remand so that the trial court may now deny
the motion.
“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).
“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
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hearing whether there is prima facie case that (1) an offense has been
committed; and (2) the defendant has committed it).
The Commonwealth establishes a prima facie case when it
produces evidences that, if accepted as true, would warrant the
trial judge to allow the case to go to a jury. The 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. Ouch, 199 A.3d 918, 923 (Pa. Super. 2018) (internal
citations, quotations and emphasis omitted).
After 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 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).
Relevant to this matter, a trial court’s review in a pretrial motion for writ
of habeas corpus includes the evidence presented at the preliminary hearing
and any additional evidence the Commonwealth produces at the hearing on
the motion. See Commonwealth v. Morman, 541 A.2d 356, 360 (Pa.
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Super. 1988) (“To make this determination [at a habeas corpus hearing], the
trial court should accept into evidence the record from the preliminary hearing
as well as any additional evidence which the Commonwealth may have
available to further prove its prima facie case.”). Significantly, we have held
that a trial court’s use of a diminished record in granting a pretrial habeas
corpus petition to be a misapplication of the law warranting reversal, as the
trial court should review the preliminary hearing transcript in conjunction with
all the evidence presented at the hearing. See Hilliard, supra at 11.
On appeal, the Commonwealth, like the trial court, requests us to
remand to the trial court because it dismissed the charges without viewing the
two videos that were shown at the preliminary hearing. Relying on Hilliard,
the Commonwealth argues that the trial court used a diminished record in
making its decision. Fretts counters that we should not consider the videos in
reviewing the trial court’s order. He points out that the Commonwealth never
admitted the videos into evidence at the preliminary hearing and did not
submit them until after this appeal had been filed.
As related above, the Commonwealth’s videos played a central role in
the presentation of their case at the preliminary hearing. At the outset of the
hearing, both videos were stipulated to by Fretts and then marked for
identification as C-2 and C-3, respectively. See N.T., 4/17/19, at 5-6. The
Commonwealth showed C-2, the video of the collision, to the AID officer, as
did Fretts during his cross-examination. Id. at 13, 20. According to the AID
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officer at the preliminary hearing, this video shows Fretts failing to use his
turn signal before turning right onto 11th street. Id. at 13. Likewise, the
video inside the cab of the truck, which was stipulated to and marked as C-3,
was shown twice to the AID officer by the Commonwealth. Id. at 15-16.
Fretts, meanwhile, made heavy use of the video in his cross-examination,
showing it again four times to the officer as the two went back and forth about
what Fretts did in the moments before the collision. Id. at 24-29.
After our review of the preliminary hearing transcript, we fail to see how
any review of the magistrate’s decision could be rendered without also viewing
the videos. While the videos themselves were not offered into evidence, the
videos were shown a total of eight times and formed the core of the AID
officer’s testimony at the preliminary hearing, making the content of those
videos evidence even though the physical “thumb” drives were not introduced.
Because the trial court did not take into consideration the content of those
videos, the trial court was unable to properly decide whether a prima facie
case had been made out before the magistrate. See Hillard, supra.
Accordingly, we reverse the trial court’s August 14, 2019 order granting Fretts’
motion to quash.
However, on remand, a new hearing on Fretts’ motion must be held.
Because the Commonwealth filed its appeal before submitting the videos, the
trial court could no longer proceed on the matter. See Pa.R.A.P. 1701(a). As
a result, the trial court cannot rule on Fretts’ motion to quash until the videos
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have been properly admitted and Fretts has been given an opportunity to
respond, if he so chooses.
Order reversed. Case remanded. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/14/20
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