Commonwealth v. Smith

305 A.3d 1

COMMONWEALTH of Pennsylvania

v.James SMITH, Appellant

No. 1910 EDA 2022

Superior Court of Pennsylvania.

Submitted May 8, 2023

Filed October 11, 2023

Reargument Denied December 20, 2023

Appeal from the Order Entered July 26, 2022, In the Court of Common Pleas of Philadelphia County, Criminal Division, at No(s): MC-51-CR-0006183-2021, Crystal Bryant Powell, J.

Lawrence J. Goode, Assistant District Attorney, Philadelphia, for Commonwealth, appellant.

Fortunato N. Perri, Jr., Philadelphia, appellee.

BEFORE: DUBOW, J., MURRAY, J., and McCAFFERY, J.

OPINION BY McCAFFERY, J.:

The Commonwealth appeals from the order entered in the Philadelphia County Court of Common Pleas denying it permission to refile criminal charges against James Smith (Appellee), an inspector in the Philadelphia Police Department, for his participation in an alleged assault that occurred while he was off duty. On appeal, the Commonwealth contends it presented sufficient evidence to establish a prima facie case that Appellee and his co-defendant¹ committed simple assault, criminal conspiracy, and recklessly endangering another person (REAP).² For the reasons below, we affirm.

The charges against Appellee arose from an incident that occurred during the late evening hours of August 18, or the early morning hours of August 19, 2020. Appellee and his co-defendant were both charged with simple assault, criminal conspiracy and REAP, A joint preliminary hearing was conducted on February 22, 2022, before Philadelphia Municipal Court Judge William Austin Meehan, Jr., where the following evidence was presented by the Commonwealth.

Complainant Paul McNally testified that, in the late evening hours of August 18 into the early morning hours of August 19, 2020, he was "taking a walk in the neighborhood" of Knights and Fairdale Road to "clear [his] mind" before a job interview scheduled for the next day. N.T., 2/22/22, at 7. McNally stated that he "was approached by a blue Mazda SUV" with two occupants whom he did not know. Id. at 8. The two occupants – one of whom he identified as Appellee³ – "accused [him] of breaking into cars" and told him "they got [him] on video or something like that." Id. at 9-10; see also id. at 16 (McNally stated the officers asked[,] "Are you the one breaking into cars?"). He stated the men "claimed to be part of Town Watch[.]" Id. at 21. At the hearing, McNally denied that he had been "looking in any vehicles" or lifting car door handles. See id. at 8, 15.

McNally claimed that he was nervous the men "were going to do something[,]" or possibly "abduct" him, so he ran away. N.T., 2/22/22, at 9, 17. He stated that as the men followed him, he called "his mother in a panic." Id. at 11. McNally testified that before he had the opportunity to call 911, the men "knocked [him] to the wall." Id. He elaborated: "They manhandled me and threw me to the wall." Id. at 12. See also id. at 20 ("[t]hey slammed me against the wall[;]" they "threw me against the pillar in the shopping center."). McNally testified that "the wall slammed the side of [his] head" and he sustained bleeding on the back of his head, a black eye and bruises on his legs and arms.⁴ Id. at 11-12. He further stated that once he was on the ground, the two men "immobilized" him until uniformed police officers arrived. See id. at 21.

The following exchange occurred during his cross-examination:

[Appellee’s counsel:] So it’s your testimony there were two individuals that caught up to you, not one?

[McNally:] Yes.

[Appellee’s counsel:] And you said they threw you up against the wall?

[McNally:] Yes.

[Appellee’s counsel:] To stop you from running; is that right?

[McNally:] Yes.

[Appellee’s counsel:] Because they were claiming you were looking into cars and trying car handles; is that right?

[McNally:] Yes. They – they assaulted me.

* * *

[Appellee’s counsel:] You were trying to get away from them as they were trying to keep you there at that location; is that right?

[McNally:] Yes, that’s correct.

N.T., 2/22/22, at 20-21.

After McNally’s testimony, the Commonwealth called Internal Affairs Sergeant Zachary Koenig to the stand to testify that an off-duty action report was filed in response to the skirmish. See N.T., 2/22/22, at 23-27. Sergeant Koenig also confirmed that, at the time of the incident, Appellee’s job status was "[i]njured on duty[.]" Id. at 27. On cross-examination, Sergeant Koenig read the summary of the incident as recounted in the off-duty action report:

On 8/19/20 at approximately 12:30 a.m. Detective Smith … along with [Appellee], while off duty in the area of Knights and Fairdale Road, heard a person screaming. They observed a male looking into a vehicle and attempting the doors on both sides. Officers had prior knowledge of auto thefts and theft from autos in the immediate area.

They followed the male and attempted to identify themselves, at which time the male ran and tripped. The male was stopped at the rear of the store at Knights and Fairdale Road.

[Appellee and Detective Smith] called 911 and uniformed officers arrived on location. The male was investigated for ped[estrian] inves[tigation] at this time. The investigation continues into the auto thefts and thefts from autos in the area.

Id. at 28. Sergeant Koenig also confirmed that McNally was not charged with any crime and was not taken by police for medical treatment. See id. at 29-30.

Following the Commonwealth’s case, Appellee’s counsel recalled McNally and played a video, marked as Exhibit D-1, which purportedly showed a person "trying car doors nine days before this incident." See N.T., 2/22/22, at 18-19, 35.⁵ Appellee’s counsel asked McNally if he "recognize[d him]self in [the] video[,]" to which McNally replied, "That is not me. I have not been in that neighborhood. I do not know where it is located. … That is not my voice." Id. at 35-36.

Following argument by counsel, the trial court discharged the matter for lack of evidence. The court stated:

[E]ven if I couldn’t see that it was [McNally] in that video, what it does show is that there is that type of criminal activity going on in that neighborhood. So it certainly bolters the police officers’ mental state that they were knowledgeable about the fact that there were car thefts in the area. And it was a legitimate reason to inquire of the individual.

Now, when he fled, you know, police are going to follow somebody when they flee. Just basic police actions. I don’t see criminal culpability here at all. At best [what] you have is somebody not following police directives because [Appellee and co-defendant] were [off-duty] and they never should have reacted to this. But I don’t find any criminal culpability whatsoever.

N.T., 2/22/22, at 45.

Less than a month later, the Commonwealth filed a Notice of Refiling of Criminal Complaint, requesting that the charges be reinstated and a preliminary hearing scheduled. See Commonwealth’s Notice of Refiling of Criminal Complaint, 3/22/22. A joint refile hearing was conducted on July 26, 2022, before Philadelphia Court of Common Pleas Judge Crystal Bryant-Powell.⁶

At that hearing, the Commonwealth did not present any new evidence. Rather, it moved into evidence the notes of testimony from the February 22nd, 2022, preliminary hearing, as well as the exhibits introduced by the parties. See N.T., 7/26/22, at 5-7. Following argument, the trial court determined the Commonwealth did not meet its burden of proof and dismissed all charges against Appellee and co-defendant. See id. at 27. This timely Commonwealth appeal follows.⁷

The Commonwealth presents one issue for our review:

Did the Commonwealth present a prima facie case for charges of simple assault, conspiracy, and [REAP] when the victim testified that [Appellee] and co[-]defendant baselessly accused him of breaking into cars, chased after him, rammed him into a wall, and held him down until officers arrived?

Commonwealth’s Brief at 8.

[1] Preliminarily, we must consider whether we have jurisdiction over this appeal. Because "jurisdiction is purely a question of law[, our] standard of review is de novo, and the scope of review is plenary." Commonwealth v. Merced, 265 A.3d 786, 789 (Pa. Super. 2021) (citation omitted).

[2] Generally, when, as here, criminal charges are dismissed prior to trial, the Commonwealth can simply refile the charges and, therefore, an appeal from such an order is interlocutory. [U]nder Pennsylvania Rule of Appellate Procedure 311(d), in criminal cases the Commonwealth has a right to appeal an interlocutory order if the Commonwealth certifies that the order will terminate or substantially handicap the prosecution….

Commonwealth v. Holston, 211 A.3d 1264, 1268 (Pa. Super. 2019) (en banc) (citations omitted & emphases added). In the present case, the Commonwealth did not certify in its notice of appeal that the order "will terminate or substantially handicap the prosecution." See Pa.R.Crim.P. 311(d); Commonwealth’s Notice of Appeal, 7/9/21.

This Court has determined, however, that an order dismissing charges is final and appealable when "the defect which requires the dismissal of [the] charges is uncurable[,]" such as when "the statute of limitations expired before the trial court dismissed the charge at issue[;]" in that circumstance, "the Commonwealth cannot refile the charges[.]" Commonwealth v. Ligon, 219 A.3d 1181, 1185 (Pa. Super. 2019) (en banc) (citation omitted). See Pa. R.A.P. 341(a)-(b) ("[A]n appeal may be taken as of right from any final order[,]" such as an order that "disposes of all claims and of all parties[.]"). In the present case, the incident occurred, at the latest, on August 19, 2020, and the two-year statute of limitations would have expired on August 19, 2022. See 42 Pa.C.S. § 5552(a) ("Except as otherwise provided …, a prosecution for an offense must be commenced within two years after it is committed."). Therefore, the statute of limitations had not yet expired when the common pleas court dismissed the charges on July...