J-S24022-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA 

Appellant

v.

JOHN STEVEN HUDAK

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 57 WDA 2024

Appeal from the Order Entered December 13, 2023

In the Court of Common Pleas of Westmoreland County 

Criminal Division at No(s): CP-65-CR-0004055-2022

BEFORE: BOWES, J., SULLIVAN, J., and STEVENS, P.J.E.*

MEMORANDUM BY SULLIVAN, J.: FILED: September 16, 2024

The Commonwealth appeals1from the order which granted in part the 

omnibus pretrial motion (“OPM”) of John Steven Hudak (“Hudak”) and 

dismissed fifty-one of the sixty-six charges2filed against him. After careful 

review, we affirm in part, reverse in part, and remand for further proceedings.

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* Former Justice specially assigned to the Superior Court.

1 The Commonwealth may take an appeal of right from an order that does not 

end the entire case if the Commonwealth certifies in the notice of appeal that 

the order will terminate or substantially handicap the prosecution. See 

Pa.R.A.P. 311(d); Commonwealth v. Torres, 764 A.2d 532, 536, n. 2 (Pa. 

2001). The Commonwealth has filed such a certification in this case. 

2 The Commonwealth charged Hudak with thirteen counts of persons not to 

possess firearms (18 Pa.C.S.A. § 6105(a)(1)), thirteen counts of receiving 

stolen property (18 Pa.C.S.A. § 3925(a)), thirteen counts of theft by unlawful 

taking (18 Pa.C.S.A. § 3921(a)); twenty-five counts of sale of firearms (18 

Pa.C.S.A. § 6111(g)(2) and (c)) and one count of prohibited offensive 

weapons (18 Pa.C.S.A. § 908(a)). 
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In early August 2021, George Lokay (“the victim”) went on a multiweek, out-of-state trip with his daughter. See N.T. Preliminary Hearing,

11/2/22, at 7. Prior to his departure, he went to the basement of his house, 

opened his gun safe, and removed cash to pay for his uncle to do a basement

renovation while the victim was away. See id. During the trip, the victim’s 

uncle called and told him that as he moved the safe during the renovation, 

“two guns fell out onto the floor.” Id. When the victim returned home, he 

opened the safe and found “it was wiped out. Everything that was in the safe

[was gone].” Id. at 8. The victim believed approximately twenty guns were 

missing but was only able to provide information and a description of thirteen 

of them. See id. at 5-6; see also N.T. OPM Hearing, 9/7/23, at 21. The 

victim reported the missing guns to the police. See id. at 8-9. The victim 

had not given permission for anyone to take the firearms from his residence. 

See id. at 8.

The police had already received a report from the victim’s wife (“wife”)

which led to Detective Mark Hamilton’s (“Detective Hamilton”) discovery of 

information Hudak had used gift cards belonging to the victim and his wife.3 

See N.T. OPM Hearing, 9/7/23, at 20-27. Detective Hamilton obtained a 

search warrant for Hudak’s cell phone, pursuant to which he found 

____________________________________________

3 The police also learned that when Hudak was hospitalized for a drug 

overdose, he was discovered to have in his possession wife’s checkbook and 

other items she had report stolen. See id. at 33.
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photographs of the victim’s open gun safe and all of the victim’s guns, as well 

as multiple text exchanges between Hudak and individuals who were 

interested in purchasing them. See N.T. Preliminary Hearing, 11/2/22, at 16-

21, 27-31, 40; N.T. OPM Hearing, 9/7/23, at 43-46.

4

 Detective Hamilton

checked Hudak’s criminal history and determined he was a person not eligible 

to possess, sell, or transfer firearms. See id. at 19. Detective Hamilton also 

conducted two interviews with Hudak, one of which was recorded.

5

 See N.T. 

Preliminary Hearing, 11/2/22, at 17. During the second, unrecorded 

interview, Hudak admitted to stealing and trying to sell the guns for either 

cash or heroin. See id. at 20-21; N.T. OPM Hearing, 9/7/23, at 47-49. 

The police filed a criminal complaint. A preliminary hearing took place 

in November 2022, at which the Commonwealth agreed to dismiss three 

charges against Hudak; the remaining offenses, detailed above, were bound 

over for trial. In early September 2023, Hudak filed his OPM seeking to 

suppress the contents seized from his cell phone and to dismiss the charges 

____________________________________________

4 Police recovered one of the stolen guns in an arrest in an unrelated matter 

in June 2022. See N.T., 11/2/22, at 19-20.

5 A CD containing the recorded interview is included in the Commonwealth’s 

reproduced record, however, it is not contained in the certified record. We 

remind the Commonwealth that documents contained in the reproduced 

record but not in the certified record do not exist for the purposes of appellate 

review. See Commonwealth v. O'Black, 897 A.2d 1234, 1240 (Pa. Super. 

2006). Moreover, it is an appellant’s responsibility to ensure the certified 

record is complete. See Commonwealth v. B.D.G., 959 A.2d 362, 372 (Pa. 

Super. 2008).
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against him. Following a hearing, the trial court denied the motion to suppress 

but granted Hudak’s motion to dismiss most of the charges, except those 

related to two Glock guns and a Smith & Wesson pistol. This timely appeal 

followed.6 

 The Commonwealth raises the following issue for our review:

1. Did the trial court erroneously apply the law and misevaluate 

the Commonwealth’s pretrial evidence when it granted 

[Hudak’s] omnibus pre-trial motion for habeas corpus relief and

dismissed a majority of the firearm-related charges against 

[Hudak]?

Commonwealth’s Brief at 5 (capitalization regularized, italics added).

Our standard of review for an order granting a petition for habeas corpus

and dismissing a criminal charge based on the insufficiency of the evidence 

establishing a prima facie case is as follows:

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. 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. Little, 305 A.3d 38, 43–44 (Pa. Super. 2023) (internal 

quotation marks and citations omitted). “A pre-trial petition for a writ of 

habeas corpus . . . is similar in purpose to a preliminary hearing.” 

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6 The trial court did not order the Commonwealth to file a concise statement 

of errors complained of on appeal. The trial court did issue a Rule 1925(a) 

opinion.
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Commonwealth v. Scott, 578 A.2d 933, 937 (Pa. Super. 1990) (citation 

omitted, italics added). With respect to preliminary hearings, this Court has 

explained the purpose of the hearing is:

... [T]o determine whether the Commonwealth has made 

out a prima facie case for the offenses charged. A prima facie

case consists of evidence, read in the light most favorable to the 

Commonwealth, that sufficiently establishes both the commission 

of a crime and that the accused is probably the perpetrator of that 

crime. ...

The Commonwealth establishes a prima facie case when it 

produces evidences [sic] 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 and quotations omitted; original emphasis).

A person commits the crime of person not to possess a firearm when he 

has been convicted of an offense enumerated in the statute and possesses a 

firearm. See 18 Pa.C.S.A. § 6105(a)(1). The statute defines “firearm” as

including “any weapons which are designed to or may readily be converted to 

expel any projectile by the action of an explosive or the frame or receiver of 

any such weapon.” 18 Pa.C.S.A. § 6105(i).
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A person is guilty of receiving stolen property “if he intentionally 

receives, retains, or disposes of movable property of another knowing that it 

has been stolen, or believing that it has probably been stolen, unless the 

property is received, retained, or disposed with intent to restore it to the 

owner.” 18 Pa.C.S.A. § 3925(a). The statute defines “receiving” as “acquiring

possession, control or title, or lending on the security of the property.” 18 

Pa.C.S.A. § 3925(b).

A person is guilty of theft by unlawful taking “if he unlawfully takes, or 

exercises unlawful control over, movable property of another with intent to 

deprive him thereof.” 18 Pa.C.S.A. § 3921(a).

A defendant commits the crime of unlawfully selling or transferring a 

firearm when he is not a licensed importer, manufacturer, or dealer, but he

desires to sell or transfer a firearm to any other unlicensed person (excepting 

transactions between certain family members) and does so at other than a 

licensed facility or a county sheriff’s office. See 18 Pa.C.S.A. § 6111(c). 

Further, to commit this crime, he must either “knowingly sell[], deliver[], or 

transfer a firearm” in violation of Section 6111 of the Crimes Code, 18 

Pa.C.S.A. § 6111(g)(1), or “knowingly or intentionally sell, deliver or transfer 

a firearm under circumstances intended to provide a firearm to any person, 

purchaser or transferee who is unqualified or ineligible to control, possess or 

use a firearm” in violation of Section 6111. 18 Pa.C.S.A. § 6111(g)(2). 
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A person commits the crime of prohibited offensive weapons when he

unlawfully “makes repairs, sells, or otherwise deals in, uses, or possesses any 

offensive weapon.” 18 Pa.C.S.A. § 908(a). The statute defines an offensive 

weapon in part as any “sawed-off shotgun with a barrel less than 18 inches[.]” 

18 Pa.C.S.A. § 908(c). 

Lastly, where a person is not found in actual possession of guns, the 

Commonwealth may establish his constructive possession of such weapons. 

This Court has stated:

Where a defendant is not in actual possession of the 

prohibited items, the Commonwealth must establish that the 

defendant had constructive possession to support the conviction. 

Constructive possession is a legal fiction, a pragmatic construct to 

deal with the realities of criminal law enforcement. We have 

defined constructive possession as conscious dominion, meaning 

that the defendant has the power to control the contraband and 

the intent to exercise that control. To aid application, we have 

held that constructive possession may be established by the 

totality of the circumstances.

It is well established that, as with any other element of a 

crime, constructive possession may be proven by circumstantial 

evidence. In other words, the Commonwealth must establish 

facts from which the trier of fact can reasonably infer that the 

defendant exercised dominion and control over the contraband at 

issue.

Commonwealth v. Parrish, 191 A.3d 31, 36-37 (Pa. Super. 2018) (citations 

and quotation marks omitted and formatting altered).

The Commonwealth argues that in dismissing all charges except those 

related to three weapons the trial court “failed to assess [its] prima facie 

[case] in a light most favorable to the Commonwealth and give the 
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Commonwealth all the reasonable inferences to which it is entitled at [the] 

pre-trial stage of [the] proceeding and which could support a guilty verdict.” 

Commonwealth’s Brief at 19 (emphasis in original). The Commonwealth 

maintains the trial court failed to “consider all the evidence, circumstantial 

and direct, give the Commonwealth all reasonable inferences from the 

evidence, and consider all the evidence in a light most favorable to the 

Commonwealth.” Id. at 20. Instead, the Commonwealth complains, the trial 

court required that it present direct evidence as to each and every firearm at 

issue. See id. at 19-20. 

The trial court stated:

The Commonwealth charged [Hudak] with crimes relating to 

13 different firearms, yet only provided specific evidence as to 

three of them . . .. When viewed in the light most favorable to the

Commonwealth, the only evidence that [Hudak] possessed, stole, 

or sold/transferred firearms relates to these three firearms.

Each firearm associated with the case was mentioned in the 

testimony. However, it is otherwise impossible to discern from 

the evidence presented which of the remaining firearms were 

possessed, stolen, transferred, or sold by [Hudak]. Though 

Detective Hamilton referenced “other” firearms located on 

[Hudak’s] phone, it remains unclear which firearms they were. No 

evidence from any source showed that an actual transfer of 

firearms or sale occurred with the remaining firearms. Finally, 

there was no evidence provided that the Striker 12-gauge auto 

shotgun in Count 66 was a prohibited weapon.

Detective Hamilton reported that [Hudak] confessed to 

taking “the weapons” and that he and [wife] were selling the guns 

to drug dealers for either cash or trade for heroin. However, this 

general statement does not specify which of the guns-the two 

[G]locks and the Smith & Wesson-or all of the guns in the 

investigation. 
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Although the Commonwealth would like [the trial c]ourt to 

infer that the remaining firearms were possessed, stolen, 

transferred, or sold by [Hudak], as either a principal or an 

accomplice, [the trial c]ourt maintains that there is not enough

evidence linking [Hudak] to them, even when viewed in light most 

favorable to the Commonwealth and drawing all reasonable 

inferences [therefrom]. 

Trial Court Opinion, 3/11/24, at 10-12 (record citations omitted).

After a thorough review of the relevant law and the certified record, we 

reverse the dismissal of all the charges except for the charge of prohibited 

offensive weapons. In its four-paragraph analysis, the trial court fails to 

discuss the elements of the individual offenses, fails to explain which elements 

the Commonwealth did not prove at the prima facie level, and includes no 

citation to supporting authority. See id. at 10-11. Instead, as the 

Commonwealth argues, the trial court determined the Commonwealth was 

required to present direct evidence as to each of the thirteen guns to make 

out a prima facie case. See id.; see also Commonwealth’s Brief, at 19-20. 

This proposition contravenes the applicable law. We agree with the 

Commonwealth that the trial court committed reversible error “in failing to 

view the evidence in a light most favorable to the Commonwealth or making 

all reasonable inferences in its favor.” Commonwealth v. Munson, 261 A.3d 

530, 541 (Pa. Super. 2021) (reversing denial of motion to refile charges). 

Here the evidence demonstrated that prior to the victim’s vacation, his 

guns were in his locked gun safe. When he returned from vacation, his gun 

safe was empty. See N.T. Preliminary Hearing, 11/2/22, at 8. The victim 
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believed approximately twenty guns were missing but was only able to 

describe thirteen of them. Those thirteen guns correspond to the guns listed 

in the criminal information. See Criminal Information, 1/13/23, at 1-12 

(unnumbered). The victim did not give permission to anyone to take or sell 

his guns. 

At the preliminary hearing, Detective Hamilton testified Hudak was not 

permitted to possess, sell or transfer a firearm. Detective Hamilton testified 

he searched Hudak’s cell phone and found what he described as a “good 

amount” of photographs taken with Hudak’s cell phone depicting firearms, as 

well as text messages on multiple apps discussing the sale of the guns and/or 

trading them for narcotics. N.T. Preliminary Hearing, 11/2/22, at 16-17, 23-

24, 26. Some of the photographs showed legible serial numbers which 

matched guns the victim owned. See id. Detective Hamilton also saw photos 

of what he recognized as the interior of the victim’s gun safe. See id. 

Detective Hamilton’s testimony established there were photographs on 

Hudak’s cell phone of the thirteen firearms the victim reported missing, and 

references to the guns in Hudak’s text messages. See id. at 26. Detective 

Hamilton clarified Hudak confessed to taking and trying to sell “the weapons.” 

Id. at 17-18, 20.

Detective Hamilton amplified his preliminary hearing testimony at the 

OPM hearing about evidence establishing Hudak’s theft of items from the 

victim’s home. He noted the victim’s wife confirmed Hudak’s presence in the 
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victim’s home during the relevant time, video obtained from a retail store 

showed Hudak using gift cards wife reported as taken from the home, and 

several missing items, including a checkbook, were recovered from Hudak 

when he was hospitalized. Detective Hamilton recounted text exchanges 

between Hudak and a person named Sierra Fenyus (“Fenyus”) which 

referenced “several of the involved firearms” including a Glock pistol and a 

Smith & Wesson. N.T. Hearing, 9/7/23, at 41. Detective Hamilton testified 

Hudak was offering to either sell the guns for cash or trade them for 

narcotics. See id. at 41-42. During the exchange with Fenyus, Hudak stated 

the guns are “going [to sell] like hot cakes.” Id. at 43. Detective Hamilton

stated the text exchange between Fenyus and Hudak referenced “a good bit” 

of the guns which had been stolen from the victim, as well as additional item 

taken from the victim’s home. Id. at 44, 48. Additionally, Detective Hamilton 

pointed out Hudak was in contact with other people about selling the guns, 

and later admitted one person, Byron Coles, purchased a “large [number]” of 

the guns, although Hudak could not recall which ones. Id. at 48.

Although the Commonwealth only showed photographs of three of the 

guns, it presented evidence Hudak was a person not permitted to possess a 

firearm, confessed to stealing firearms from the victim’s home, was found in 

possession of other items from the victim’s home, had photographs of the 

victim’s open gun safe and of Hudak’s guns on his cell phone, and exchanged 

text messages with various individuals with respect to selling the victim’s 
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guns. When we view the evidence, as we must, in the light most favorable to 

the Commonwealth and giving the Commonwealth all reasonable inferences, 

the evidence was sufficient to demonstrate a prima facie case with respect to 

all the charges except for the charge of prohibited offensive weapon.7 See 

Commonwealth v. Williams, 911 A.2d 548, 552 (Pa. Super. 2006) 

(reversing the trial court’s dismissal of charges of persons not to possess even 

though the Commonwealth did not present direct evidence the defendant 

possessed the charged firearm but instead offered “compelling circumstantial 

evidence to establish this fact through reasonable evidentiary inference”); 

Commonwealth v. Prak, 283 A.3d 347 (Pa. Super. 2022) (unpublished 

memorandum at *5)

8 (reversing the trial court’s dismissal of charges of theft 

by unlawful taking and receiving stolen property where the defendant was 

seen within one hundred yards of a store being looted and unspecified 

property from the store was found in a car in which the defendant was a 

passenger); Commonwealth v. Howard, 281 A.3d 1081 (Pa. Super. 2022) 

(unpublished memorandum at *9) (reversing the trial court’s dismissal of a 

charge of persons not to possess firearms where the victim stated the 

____________________________________________

7 As note above the Commonwealth was required to demonstrate the barrel 

of the Striker shotgun at issue was less than 18 inches. See 18 Pa.C.S.A. § 

908(c); see also Criminal Information, 1/13/23, at 12 (unnumbered). The 

Commonwealth did not do so.

 

8 See Pa.R.A.P. 126(b) (unpublished non-precedential memoranda decision of 

Superior Court filed after May 1, 2019, may be cited for persuasive value).
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defendant had a gun “upstairs” and the police recovered a firearm from a 

bedroom). 

Accordingly, we reverse the trial court’s order dismissing the charges of 

persons not to possess, theft by unlawful taking, and receiving stolen 

property; we affirm the order as to prohibited offensive weapons.

Order affirmed in part and reversed in part. Case remanded. 

Jurisdiction relinquished.

DATE: 09/16/2024