Commonwealth v. Perez

220 A.3d 1069

COMMONWEALTH of Pennsylvania, Appellant

v.Carlos PEREZ

No. 1392 EDA 2017

Superior Court of Pennsylvania.

Argued May 29, 2019

Filed October 07, 2019

Brad M. Paraszczak, Assistant District Attorney, Philadelphia, for Commonwealth, appellant.

Teri B. Himebaugh, Philadelphia, for appellee.

BEFORE: PANELLA, P.J., BENDER, P.J.E., GANTMAN, P.J.E., LAZARUS, J., OLSON, J., KUNSELMAN, J., NICHOLS, J., MURRAY, J., and McLAUGHLIN, J.

OPINION BY LAZARUS, J.:

The Commonwealth of Pennsylvania appeals from the order, entered in the Court of Common Pleas of Philadelphia County, dismissing charges of first-degree murder¹ and possession of an instrument of crime ("PIC")² against Carlos Perez after a second preliminary hearing. After careful review, we affirm.

At approximately 1:00 a.m. on August 21, 2016, Andrew Hazelton and Hector Martinez went to Bleu Martini, a bar in Philadelphia. N.T. First Preliminary Hearing, 3/22/17, at 4–5. They made their way to "a small[,] confined area" where the two men split from one another. Id. at 5–8. Martinez talked to a friend, while Hazelton danced with a woman "five to eight" feet from Martinez. Id. at 5–7. Perez, already at Bleu Martini, was seated at a table approximately four feet from where Hazelton was dancing. Id. at 8. At approximately 1:50 a.m, Marquis McNair, a bouncer at Bleu Martini, spotted Hazelton and Perez pushing one another. N.T. Second Preliminary Hearing, 4/5/17, at 22–27. The two men were shoving one another in the center of two groups, comprised of between five and fifteen people each, when McNair stepped in and separated them. Id. at 27, 54–55. Hazelton told McNair that he and Perez knew one another and that everything was "cool." Id. at 59. McNair did not see any weapons or broken bottles following this initial altercation. Id. at 61. McNair and a second bouncer continued to monitor the area, standing approximately ten to fifteen feet from Hazelton and Perez. Id. at 32.

A few minutes later, Hazelton and Perez began shoving one another again. Id. at 34. McNair saw Perez and Hazelton pushing one another, and witnessed Perez make an "arm movement" towards Hazelton's neck, but he neither saw Perez stab Hazelton, nor observed a weapon of any kind in Perez's hands. Id. at 62–64, 76. However, when McNair and his colleague stepped in to break up the second shoving match, he heard a woman exclaim, "they cut him[.]" Id. at 35, 48. McNair then noticed Hazelton holding his neck. Id. at 66, 77–78. When Hazelton removed his hand from his neck, blood began "gushing out[.]" Id. at 35.

Martinez only noticed something amiss when the two bouncers moved to separate Hazelton and Perez. N.T. First Preliminary Hearing, 3/22/17, at 9, 33–34. When Martinez saw Hazelton emerge from the crowd holding his neck, he followed Hazelton outside. Id. Hazelton tried to speak, but was unable to do so, due to the severity of his wound. Id. at 10. Martinez applied pressure to Hazelton's neck in an attempt to stanch the bleeding. Id. at 34–35. Shortly thereafter, Martinez saw Perez exit Bleu Martini. Id. at 35. Martinez, who assumed Perez played a role in Hazelton's injury because of the blood on Perez's shirt, punched Perez in the face. Id. at 11, 35. Perez went back into Bleu Martini. Id. at 11.

McNair began clearing patrons out of the club shortly after separating Perez and Hazelton because it was nearing Bleu Martini's 2:00 a.m. closing time. N.T. Second Preliminary Hearing, 4/5/17, at 36. He encountered Perez walking around the club in a tank top, and asked Perez why he was not wearing a shirt, as doing so violated Bleu Martini's dress code. Id. at 36–37. Perez told McNair he took his shirt off and threw it in the bathroom trashcan after it got covered with blood. Id. at 39–40. McNair then escorted Perez to the bathroom to retrieve the shirt. Id. at 39–40. Perez stayed at the bar under the supervision of Bleu Martini security, not in connection with the killing, but because of the $600 he owed on his bar tab. Id. at 92, 100.

At approximately 2:00 a.m., a pedestrian on Second Street alerted Philadelphia Police Officer Charles Stone to the stabbing. Id. at 85. Upon entering Bleu Martini, the staff directed Officer Stone towards Perez, who was seated alone in a booth. Id. at 86–88. Perez initially denied any involvement in the fight. Id. at 90–92. When Officer Stone asked why he was not wearing a shirt, Perez retrieved his bloody shirt from under the booth. Id. When Officer Stone asked how he got blood on his shirt, Perez said he got hit. Id. at 92. Officer Stone consulted with detectives, who ordered Perez be brought to the police station. Id. The police were unable to find the weapon used to cut Hazelton's throat. Id. at 103.

Hazelton died at the hospital later that day. N.T. First Preliminary Hearing, 3/22/17, at 37. The medical examiner's office determined Hazelton's death resulted from the stab wound he sustained to his neck, which severed his jugular vein and trachea. Id. at 37. On February 23, 2017, police arrested Perez in connection with Hazelton's death, and on February 24, 2017, Perez was arraigned on charges of first-degree murder and PIC.

On March 22, 2017, the Commonwealth presented its case to Philadelphia Municipal Court Judge Thomas Gehret. In addition to Martinez's testimony, the Commonwealth moved the following exhibits into evidence: Martinez's August 21, 2016 statement to police (C-1); Martinez's September 29, 2016 statement to police (C-2); a photo array shown to Martinez during his second statement to police (C-3); the medical examiner's report stating Hazelton's cause of death as a stab wound sustained to neck (C-4); a trace laboratory report of Perez's shirt (C-5); and a DNA laboratory report indicating the blood found on Perez's shirt belonged to Hazelton (C-6). At the conclusion of the hearing, Judge Gehret dismissed Perez's charges for lack of evidence. The Commonwealth refiled charges later that day.

Perez was subsequently brought before the Court of Common Pleas, the Honorable Kathryn Streeter Lewis presiding, where, in addition to McNair's and Officer Stone's testimony, the Commonwealth introduced the following exhibits into evidence: a picture of Bleu Martini's interior (C-1); McNair's statement to police from February 8, 2017 (C-2); pictures of Perez's bloody shirt (C-3); and the statement of Officer Stone from August 22, 2017 (C-4). Judge Lewis dismissed the charges against Perez on the grounds that "the Commonwealth was unable to prove at a prima facie level that it was [Perez] who stabbed and killed [Hazelton]." Pa.R.A.P. 1925(a) Opinion, 7/28/17, at 9.

The Commonwealth timely appealed and a divided three-judge panel of this Court quashed its appeal as interlocutory. On June 18, 2018, the Commonwealth filed a petition for reargument en banc. On August 8, 2018, we withdrew our previous panel decision and granted the Commonwealth's petition.

The Commonwealth raises the following questions for our review:

1) Whether the Commonwealth's appeal is from an interlocutory order or a final order, after the Philadelphia trial court twice concluded that the Commonwealth failed to establish a prima facie case of the charges against [Perez] and dismissed the charges.

2) Properly viewed in the light most favorable to the Commonwealth, did the evidence and all reasonable inferences therefrom establish a prima facie case of murder and related offenses, where [Perez] provoked two altercations with the victim moments before he was fatally stabbed in the neck, and then tried to flee the scene, conceal evidence, and lie to police about his involvement?

Brief of Appellant, at 4.

In its first argument, the Commonwealth asserts that Philadelphia Local Rule of Criminal Procedure 520(H)³ renders Judge Lewis' order dismissing charges against Perez final, rather than interlocutory.

As a general rule, subject to certain exceptions not presently at issue,⁴ this Court's jurisdiction is limited to appeals from final orders. See Commonwealth v. Scarborough , 619 Pa. 353, 64 A.3d 602, 607 (2013) ("As a general rule ... appellate courts only have jurisdiction over appeals taken from a final order."). Our courts have long held "[a] finding by a committing magistrate that the Commonwealth has failed to establish a prima facie case is not a final determination, such as an acquittal, and only entitles the accused to his liberty for the present, leaving him subject to re[-]arrest." Commonwealth v. Hetherington , 460 Pa. 17, 331 A.2d 205, 208 (1975) ; cf. Commonwealth v. Thorpe , 549 Pa. 343, 701 A.2d 488, 490 (1997) (allowing Commonwealth's appeal after third preliminary hearing, as subsequent re-arrest would be prohibited by due process).

Ordinarily, following the failure to present a prima facie case, "if the [C]ommonwealth deems itself aggrieved by [the magistrate's] decision[,] it may bring the matter again before any other officer empowered to hold preliminary hearings." Hetherington , supra at 208 (emphasis added). However, our Supreme Court found the Hetherington logic inapplicable to the dismissal of homicide charges in Philadelphia County, owing to Philadelphia Local Criminal Rules 520(H) and 605. See Commonwealth v. Prado , 481 Pa. 485, 393 A.2d 8, 9–10 (1978) ("As a result [of Rules 520(H) and 605] the Hetherington approach of seeking a review by another judicial officer is not available in Philadelphia.") (quotation omitted).

Rule 520(H) reads, in relevant part, as follows:

520(H) Appeal by Way of Re-Arrest.

When a re-arrest is taken in the nature of an appeal by the Commonwealth from an earlier dismissal, the Judge assigned to the Common Pleas Court Motion Court shall hold the Preliminary Arraignment. The Preliminary Hearing shall likewise be scheduled in the Common Pleas Court Motions Court, within three to ten days after preliminary arraignment.

Phil.Crim.R. 520(H).

Rule 605 provides, in relevant part, as follows:

Rule 605 Motions Court/Criminal Calendar Program and Homicide Cases.

All Pretrial

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