J-S16036-23

2023 PA Super 199

COMMONWEALTH OF PENNSYLVANIA

v.

JAMES SMITH 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1910 EDA 2022

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

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

OPINION BY McCAFFERY, J.: FILED OCTOBER 11, 2023

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

____________________________________________

1 Appellee’s co-defendant was Philadelphia Police Detective Patrick Smith, who 

was also off duty at the time of the incident. Appellee states in his brief that 

Detective Smith is his brother. See Appellee’s Brief at 2. The cases were 

heard together, and the trial court also dismissed the same charges filed 

against Detective Smith. The Commonwealth filed an identical appeal, which 

is docketed at 1911 EDA 2022 before this same panel.
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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 

____________________________________________

2 See 18 Pa.C.S. §§ 2702(a)(1), 903(a), and 2705, respectfully.

3 At the preliminary hearing, McNally could not identify co-defendant as one 

of the men who purportedly assaulted him. See N.T., 2/22/22, at 14.
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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.

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4 McNally claimed that the day after the incident he “went to Urgent Care and 

got [his injuries] looked at.” N.T., 2/22/22, at 22. He did not further elaborate 

on the extent of his injuries.
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[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.
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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.

____________________________________________

5 Appellee’s counsel initially attempted to introduce the exhibit during crossexamination of McNally. See N.T., 2/22/22, at 18-19. However, at that time, 

the court concluded it was “irrelevant.” Id. at 19. As noted above, the court 

permitted the video when counsel recalled McNally.
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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 BryantPowell.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 

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6 Pursuant to Pa.R.Crim.P. 544, “[w]hen charges are dismissed [at] a 

preliminary hearing, . . . the Commonwealth may reinstitute the charges by 

approving, in writing, the re-filing of a complaint with the issuing authority 

who dismissed . . . the charges.” Pa.R.Crim.P. 544(A). Subsection (B) allows 

the Commonwealth to file a motion requesting “a different issuing authority 

to conduct the preliminary hearing.” Pa.R.Crim.P. 544(B). Although it does 

not appear the Commonwealth formally requested that a “different issuing 

authority” conduct the refile hearing in the present case, that is what occurred. 

See id. “Nevertheless, neither party has objected to the procedure.” 

Commonwealth v. Sinkiewicz, 293 A.3d 681, 686 n.4 (Pa. Super. 2023). 

Furthermore, we note that “this case retained its municipal court docket 

number” despite the fact that the refile hearing was conducted in the Court of 

Common Pleas. See Commonwealth v. Montgomery, 192 A.3d 1198, 1199 

n.2 (Pa. Super. 2018).
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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.

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).

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 

____________________________________________

7 The Commonwealth complied with the trial court’s directive to file a Pa.R.A.P. 

1925(b) concise statement of errors complained of on appeal.
J-S16036-23

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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 26, 2022.

Nevertheless, we conclude the order sub judice is a final order based on 

the unique structure of the Philadelphia County court system, which includes 

Philadelphia Municipal Court. The Philadelphia Municipal Court has original

jurisdiction over adult criminal offenses “for which no prison term may be 

imposed or which are punishable by imprisonment for a term of not more than 

five years[.]” 42 Pa.C.S. § 1123(a)(2). This includes the offenses charged in 

the present matter ─ simple assault, conspiracy, and REAP ─ which are all 
J-S16036-23

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graded as second-degree misdemeanors. See 18 Pa.C.S. §§ 905(a), 2701(b), 

2705; see also 18 Pa.C.S. § 1104(2) (maximum sentence for second-degree 

misdemeanor is two years’ imprisonment). However, Pennsylvania Rule of 

Criminal Procedure 1001 permits the Commonwealth to file a “written 

certification to exercise [its] right to a jury trial in a Municipal Court case.” 

Pa.R.Crim.P. 1001(D). When it does, the Rule requires the President Judge of 

the Municipal Court to promptly “schedule a preliminary hearing.” Id. 

Thereafter, “[w]hen [the] case is held for court the case shall remain in the 

Common Pleas Court through final disposition.” Id. The Comment to the 

Rule emphasizes that “[o]nce a case is bound over to Common Pleas Court, 

the trial judge may not remand the case to the Municipal Court for any reason, 

even if the right to jury trial is waived.” See Pa.R.Crim.P. 1001, Cmt.

In the present case, the Commonwealth exercised its right to a jury trial

by filing a written certification on April 5, 2021. See Commonwealth’s 

Certification of [Its] Exercise of Right to a Jury Trial, 4/5/21. The Municipal 

Court President Judge then directed that the matter “be promptly listed for a 

preliminary hearing[.]” See Order, 5/3/21. As noted supra, Municipal Court 

Judge Meehan conducted a preliminary hearing on February 22, 2022, and 

discharged the matter for lack of evidence. See N.T., 2/22/22, at 45.

On March 22, 2022, the Commonwealth filed a notice of its intent to 

refile the criminal complaint in the Court of Common Pleas. The matter 

proceeded to a hearing before Common Pleas Court Judge Bryant-Powell, who 

agreed that the Commonwealth did not establish a prima facie case for any of 
J-S16036-23

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the offenses and, again, dismissed the charges. See N.T., 7/26/22, at 27. At 

that point, both a Municipal Court judge and a Common Pleas Court judge had 

concluded the Commonwealth failed to meet its preliminary burden of proof

in order to establish a prima facie case. As the matter was removed to the 

Common Pleas Court via the Commonwealth’s request for a jury trial, the 

Commonwealth’s only option would have been to seek to refile the charges 

before another Common Pleas Court judge. However, pursuant to the 

“coordinate jurisdiction rule, . . . judges of coordinate jurisdiction should not 

overrule each other’s decisions.” Commonwealth v. King, 836 A.2d 25, 29 

(Pa. 2003) (citation omitted). While the courts of this Commonwealth have 

permitted a departure from this rule in exceptional circumstances, none are 

applicable here. See Commonwealth v. Starr, 664 A.2d 1326, 1332 (Pa. 

1995) (permitting departure from coordinate jurisdiction rule in “exceptional 

circumstances such as where there has been an intervening change in the 

controlling law, a substantial change in the facts or evidence giving rise to the 

dispute in the matter, or where the prior holding was clearly erroneous and 

would create a manifest injustice if followed”).

Accordingly, we conclude that, based on the jurisdictional constraints of 

the Philadelphia County court system, the order at issue was final and 

appealable. Thus, the Commonwealth was not required to include a Pa.R.A.P. 

311(d) certification in its notice of appeal.
J-S16036-23

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Turning to the Commonwealth’s substantive claim, we review an order 

dismissing criminal charges at a preliminary hearing for lack of evidence under 

the following standards:

[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. A judge at a preliminary hearing is not required, nor 

is he authorized to determine the guilt or innocence of an accused; 

his sole function is to determine whether probable cause exists to 

require an accused to stand trial on the charges contained in the 

complaint. . . . The weight and credibility of the evidence are not 

factors at the preliminary hearing stage, and the Commonwealth 

need only demonstrate sufficient probable cause to believe the 

person charged has committed the offense. 

[I]nferences 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. The use of inferences is a process of 

reasoning by which a fact or proposition sought to be established

is deduced as the logical consequence from the existence of other 

facts that have been established. The “more-likely-than-not” test, 

must be applied to assess the reasonableness of inferences relied 

upon in establishing a prima facie case of criminal culpability. The 

more-likely-than-not test is the minimum standard — anything 

less rises no higher than suspicion or conjecture.

Commonwealth v. Perez, 249 A.3d 1092, 1102-03 (Pa. 2021) (citations & 

some quotation marks omitted).

As noted, supra, the Commonwealth seeks to prosecute Appellee on 

charges of simple assault, conspiracy, and REAP. A person is guilty of simple 

assault if he “attempts to cause or intentionally, knowingly or recklessly 

causes bodily injury to another[.]” 18 Pa.C.S. § 2701(a)(1). Bodily injury is 
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defined as “[i]mpairment of [a] physical condition or substantial pain.” 18 

Pa.C.S. § 2301. Even if the victim does not sustain bodily injury, a person 

may be found guilty of simple assault if he acted with “a specific intent to 

cause bodily injury[.]” Commonwealth v. Richardson, 636 A.2d 1195, 

1196 (Pa. Super. 1994) (citation omitted). A person is guilty of criminal 

conspiracy if he: “(1) entered into an agreement to commit . . . an unlawful 

act with another person . . . , (2) with a shared criminal intent and, (3) an 

overt act was done in furtherance of the conspiracy.” Commonwealth v.

Fisher, 80 A.3d 1186, 1190–91 (Pa. 2013) (citation omitted). See 18 Pa.C.S. 

§ 903(a)(1). Lastly, a person is guilty of REAP “if he recklessly engages in 

conduct which places or may place another person in danger of death or 

serious bodily injury.” 18 Pa.C.S. § 2705. See 18 Pa.C.S. § 2301 (defining 

“serious bodily injury” as “[b]odily injury which creates a substantial risk of 

death or which causes serious, permanent disfigurement, or protracted loss 

or impairment of the function of any bodily member or organ”).

On appeal, the Commonwealth insists that it presented sufficient 

evidence to establish a prima facie case for each offense charged. See

Commonwealth’s Brief at 12. First, with regard to simple assault, the 

Commonwealth claims McNally’s testimony that Appellee and his co-defendant 

“manhandled [him] and threw [him] to the wall” ─ which resulted in bleeding 

on the back of his head, a black eye, and bruising ─ was sufficient to establish 

the offense. See id. at 13 (record citation omitted). Although the trial court

apparently determined Appellee’s actions constituted “a lawful use of force”
J-S16036-23

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based on the fact that “he allegedly saw [McNally] looking into cars and pulling

on their doors[,]” the Commonwealth maintains this was an improper 

“credibility finding” that should not have been considered at the preliminary 

hearing. Id. at 14 (record citation omitted). Rather, it asserts “[t]he question 

of whether or not [Appellee] is ultimately able to persuade a fact finder at trial 

that he was legitimately using reasonable force must await . . . trial.” Id. 

Next, with regard to the conspiracy charge, the Commonwealth argues

McNally’s testimony that Appellee and his co-defendant together confronted 

him, chased him, “rammed him into a wall and held him down until uniformed 

officers arrived[,]” was sufficient to establish a prima facie case of conspiracy. 

Commonwealth’s Brief at 15. It claims that an agreement between the codefendants to assault McNally “may be inferred from the relation and conduct 

of the parties,” and need not have been “expressly communicated[.]” Id.

Lastly, the Commonwealth contends it presented sufficient evidence to 

support a prima facie case of REAP because “the two men chased McNally and 

together used that momentum to ram his head into a wall.” Commonwealth’s 

Brief at 16 (record citation omitted). It insists that this act “demonstrated a 

reckless disregard for a substantial and unjustifiable risk of seriously injuring 

McNally[,]” and that repeated blows to the head ─ a vital part of the body ─ 

provide a “common-sense inference” of an intent to inflict serious bodily 

injury. Id.

Upon our review of the record, the parties’ briefs, and the relevant 

statutory and case law, we conclude the trial court applied the proper standard 
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of review and did not err in finding the Commonwealth failed to present a 

prima facie case to support the charges filed against Appellee.

Considering first the offense of simple assault, we conclude the 

Commonwealth failed to establish Appellee acted with the requisite mens rea

to support the charge. Assuming, arguendo, that McNally suffered bodily 

injury,8the Commonwealth was still required to demonstrate that Appellee 

acted intentionally, knowingly, or recklessly to cause that bodily injury. See 

____________________________________________

8 This Court has held that a victim sustained bodily injury in the following 

circumstances: (1) the defendant threw the victim against a wall and punched 

the victim in the mouth, which cause the victim’s head to hit the wall, resulting 

in a “busted lip” and pain; (2) the defendant struck the victim with a closed 

fist in the jaw resulting in “slight swelling and pain[;]” and (3) the defendant 

grabbed the victim’s arm in an aggressive fashion and pushed the victim

against a wall, resulting in bruises that lasted several days. See 

Commonwealth v. Wroten, 257 A.3d 734, 744 (Pa. Super. 2021); 

Commonwealth v. Marti, 779 A.2d 1177, 1181 (Pa. Super. 2001); In re 

M.E., 758 A.2d 1249, 1252 (Pa. Super. 2000).

Here, viewing the evidence and all reasonable inferences in the light 

most favorable to the Commonwealth, we conclude that McNally’s testimony

─ that “the wall slammed the side of [his] head[,]” resulting in bleeding, a 

black eye and bruises ─ if credited by the fact finder, was sufficient to establish 

he suffered “bodily injury,” and in particular “substantial pain,” as a result of 

the incident. See Perez, 249 A.3d at 1102-03; 18 Pa.C.S. § 2301; N.T., 

2/22/22, at 11. 

Moreover, we note that if we concluded the evidence was insufficient 

to establish bodily injury, the Commonwealth would be required to establish 

Appellee attempted to cause bodily injury. See 18 Pa.C.S. § 2701(a)(1). In 

order to demonstrate an attempted simple assault, the Commonwealth must 

show Appellee acted with “specific intent to cause [McNally] bodily injury[.]” 

See Richardson, 636 A.2d at 1196 (citation omitted). As we discuss infra, 

the evidence does not support an inference that Appellee acted with the 

requisite specific intent.
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18 Pa.C.S. § 2701(a)(1). A person acts “intentionally” when “it is his 

conscious object . . . to cause such a result[.]” 18 Pa.C.S. § 302(b)(1)(i). A 

person acts “knowingly” when “he is aware that it is practically certain that 

his conduct will cause such a result.” Id. at § 302(b)(2)(ii). Finally, 

[a] person acts recklessly . . . when he consciously disregards a 

substantial and unjustifiable risk that the material element . . . 

will result from his conduct. The risk must be of such a nature 

and degree that, considering the nature and intent of the actor’s 

conduct and the circumstances known to him, its disregard 

involves a gross deviation from the standard of conduct that a 

reasonable person would observe in the actor’s situation.

18 Pa.C.S. § 302(b)(3).

Here, the Commonwealth insists the fact that McNally testified Appellee 

and co-defendant “manhandled [him] and threw [him] to the wall” was 

sufficient to establish a prima facie case of simple assault. See 

Commonwealth’s Brief at 13 (record citation omitted). However, McNally’s 

testimony does not support a reasonable inference that Appellee intended to 

cause him to suffer bodily injury, or that he acted knowingly or recklessly to 

cause that result. 

Although McNally claimed he was not looking in cars on the night in 

question, he acknowledged that Appellee stopped to question him because 

that is what Appellee believed he was doing. McNally admitted that after 

Appellee and co-defendant approached him, they “accused [him] of breaking 

into cars[,]” and “said they [had him] on video[.]” N.T., 2/22/22, at 9-10. 

See also id. at 16 (“They told me, Are you the one breaking into cars? And 

I was like, What are you talking about?”). He also testified that Appellee and 
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co-defendant “claimed to be part of Town Watch[.]” Id. at 21. However, 

instead of engaging in further conversation, McNally ran. See id. at 10, 16. 

He stated that when Appellee and co-defendant caught up to him, they “threw”

him against a wall or a pillar and held him on the ground until uniformed 

officers arrived. See id. at 12, 20-21. Importantly, he conceded that they 

did so “[t]o stop [him] from running” because they “claim[ed he was] looking 

into cars and trying car handles.” Id. at 20. 

Thus, viewing the evidence in the light most favorable to the 

Commonwealth, we conclude McNally’s testimony does not support a 

reasonable inference that Appellee “more likely than not” intended to cause 

him bodily harm. See Perez, 249 A.3d at 1103. Rather, McNally’s own 

testimony confirms Appellee’s intent was to stop him from fleeing and confront

him about the recent car break-ins, regardless of whether Appellee’s 

suspicions were justified. Neither Appellee’s actions, nor his statements, 

compel a different result. See Commonwealth v. Predmore, 199 A.3d 925, 

932-33 (Pa. Super. 2018) (en banc) (Commonwealth did not establish prima 

facie case of attempted murder when defendant shot victim in the calves 

following an argument; no intent to kill could be inferred from shooting in 

lower leg and Commonwealth presented no evidence that defendant “verbally 

indicated, directly or indirectly, his intent to kill” victim). Furthermore, a 

reasonable inference that Appellee did not intend to injure McNally is 

supported by the summary of the incident recorded in the Internal Affairs’ offduty action report, as well as the fact that Appellee and co-defendant 
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requested dispatch to send uniformed officers to the scene. See N.T., 

2/22/22, at 28 (off-duty report indicated officers observed male looking in 

vehicle, had knowledge to auto thefts in immediate area, and followed male 

while attempting to identify themselves; “[o]fficers called 911” after stopping 

male).

9

We further conclude that the Commonwealth also failed to establish 

Appellee acted knowingly or recklessly, i.e., that he took actions which he was 

“practically certain” would result in McNally suffering bodily injury or that he 

“consciously disregard[ed] a substantial and unjustifiable risk” that such injury 

would result from his conduct. See 18 Pa.C.S. § 302(b)(2)(ii), (3). Indeed, 

McNally’s testimony supports a reasonable inference that Appellee knocked 

him into a wall to stop him from fleeing; there was no testimony that Appellee

or co-defendant hit, kicked, or otherwise attempted to harm McNally after he 

was subdued. Nor does the Commonwealth present such an argument in its 

brief.10 Rather, the Commonwealth focuses on the trial court’s purported 

____________________________________________

9 We emphasize that in making this determination, we do not consider 

whether Appellee’s actions would constitute a “lawful use of force” by a police 

officer. See Commonwealth’s Brief at 14. We agree with the Commonwealth 

that our consideration of a potential defense would require a credibility 

determination, which is not permitted at the preliminary hearing stage. See 

Perez, 249 A.3d at 1102.

10 In its reply brief, the Commonwealth argues, for the first time, that 

Appellee’s purported subjective intent to detain McNally “is irrelevant to 

whether he also intended, knew, or was reckless to the fact that throwing 

someone head-first into a wall would cause bodily injury.” See

Commonwealth’s Reply Brief at 9-10 n.1. However, the Commonwealth’s 

(Footnote Continued Next Page)
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determination that Appellee’s actions constituted a “lawful use of force.” See 

Commonwealth’s Brief at 14. As explained supra, we need not consider this 

defense to affirm the court’s ruling. 

With regard to conspiracy, the Commonwealth failed to present any 

evidence, direct or circumstantial, to support a reasonable inference that 

Appellee and co-defendant acted with a “shared criminal intent” to assault 

McNally. See Fisher, 80 A.3d at 1190. As explained above, the only 

reasonable inference from the Commonwealth’s evidence was that Appellee 

and co-defendant intended to stop McNally from fleeing the area and question 

him about the recent car thefts.

Lastly, we conclude the Commonwealth failed to establish a prima facie

case of REAP. There was simply no evidence presented to support a 

reasonable inference that Appellee engaged in conduct that placed McNally “in 

danger of death or serious bodily injury.” See 18 Pa.C.S. § 2705. Although 

the Commonwealth emphasizes that repeated blows to a person’s head can 

support an inference that the actor “inten[ded] to inflict serious bodily 

injury[,]” that was not what occurred in the present case. See

Commonwealth’s Brief at 16. Nor, as the Commonwealth suggests, did 

McNally state that Appellee and co-defendant “used [their] momentum” from 

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characterization of Appellee’s actions is belied by the record. The only 

reasonable inference that may be drawn from McNally’s testimony is that 

Appellee pushed him or threw him into a wall, where he hit his head. See

N.T., 2/22/22, at 11-12, 20. He never testified that they “threw him headfirst into a wall[.]” See Commonwealth’s Reply Brief at 9. 
J-S16036-23

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the chase to “ram his head into a wall.” Id. Instead, McNally testified that 

the men “knocked” or “threw” him into the wall, where he “slammed the side 

of [his] head.” N.T., 2/22/22, at 11-12. There is simply no testimony to 

support an inference that Appellee repeatedly hit McNally in the head, or 

purposely smashed McNally’s head into the wall. 

Accordingly, we agree with the trial court’s determination that the 

Commonwealth failed to present sufficient evidence to support a prima facie

case of simple assault, conspiracy, and/or REAP against Appellee. Therefore, 

we affirm the order dismissing the charges.

Order affirmed.

Date: October 11, 2023