J-A18007-18

2018 PA Super 314

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT

OF PENNSYLVANIA

Appellant

v.

SOTHORN OUCH

Appellee No. 2624 EDA 2017

Appeal from the Order Entered July 25, 2017

In the Court of Common Pleas of Philadelphia County

Criminal Division at No.: CP-51-CR-0003807-2017

BEFORE: STABILE, J., STEVENS, P.J.E.*, and STRASSBURGER, J.**

OPINION BY STABILE, J.: FILED NOVEMBER 27, 2018

The Commonwealth appeals from the July 25, 2017 order entered in the 

Court of Common Pleas of Philadelphia County (“trial court”), which affirmed 

the dismissal of the charge of robbery in the first degree against Appellee 

Sothorn Ouch and denied the Commonwealth permission to refile the charge.

Upon review, we reverse and remand. 

On March 12, 2017, Detective Nicholas Martella, Philadelphia Police 

Department, charged Appellee with robbery, graded as a first-degree felony, 

persons not to possess firearms, firearms not to be carried without a license, 

carrying firearms on public streets in Philadelphia, retail theft and recklessly 

____________________________________________

* Former Justice specially assigned to the Superior Court.

** Retired Senior Judge assigned to the Superior Court.
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endangering another person.1 Detective Martella stated in the affidavit of 

probable cause accompanying the complaint: 

On Sunday, March 5, 2017, 3:37 PM, 1122 Washington Avenue, 

P/O Butterline #1362 responded to a radio call for a robbery in 

progress inside the Hung Vuong Market. Upon arrival the 

complaint (HN 45/A/M) and a witness, uniformed security officer 

(RB 62/B/M) both stated an Asian male described as 5’6 150 

pounds in his 20s or 30s wearing a gray Phillies hat, gray hooded 

sweatshirt with white design on the front was attempting to 

shoplift seafood merchandise. When he was stopped in the 

doorway, he attempted to pull a firearm from his waistband. (RB) 

smacked his hand away and the offender fled the parking lot in a 

newer model white Toyota Corolla, last 4 digits on the license plate 

from an unknown state are 3751. 

 . . . .

South Detective Intelligence Officer Chris Lai who stated in 

summary that he viewed the video of the above incident and 

immediately recognized the offender as [Appellee], who he’s 

known for over 20 years and has come into contact with him in 

South Philadelphia numerous times.

Affidavit of Probable Cause, 3/12/17. In summary, Detective Martella alleged 

that, “in the course of committing a theft, [Appellee] threatened or 

intentionally put another in fear of serious injury by approaching the [victim] 

and producing a firearm he is prohibited from carrying due to a prior 

disqualifying felony conviction.” Criminal Complaint, 3/12/17. 

On May 2, 2017, the municipal court conducted a preliminary hearing, 

at which the Commonwealth offered the testimony of Richard Brooks (or RB), 

a security officer at a Vietnamese supermarket located at 1122 Washington 

Avenue, Philadelphia. N.T. Hearing, 5/2/17, at 4-5. Mr. Brooks testified that,

on March 5, 2017, at approximately 3:30 p.m., he stopped an “[a]sian guy,” 

____________________________________________

1 18 Pa.C.S.A. §§ 3701(a)(1), 6105(a)(1), 6106(a)(1), 6108, 3929(a)(1), and 

2705, respectively.
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whom he described as being 5’5” tall and wearing a gray shirt, hat, sneakers 

and blue jeans, on suspicion of shoplifting shrimp and lobster. Id. at 6. 

Specifically, Mr. Brooks testified that he, at the direction of his manager who 

was standing next to him, grabbed the suspect, later identified as Appellee 

Sothorn Ouch, near the front doors past the registers. Id. at 7-8. The 

Commonwealth thereafter played a video of the incident for Mr. Brooks. 

Q. Now, Mr. Brooks, if you can show, when [Appellee] made this 

motion toward his waistband what did you do?

A. Pushed back off. And then [Appellee] ran out the store. 

Because he reached for a gun so I said, I told the [manager], “we 

ain’t dying for this.” Pushed his hand away and he runs out the 

door.

Id. at 9.

On cross-examination, Mr. Brooks acknowledged that the manager 

instructed him to stop Appellee at the door. Id. at 12. He also acknowledged

that, although he saw Appellee “reach for something,” he did not know what 

it was. Id. at 13. Mr. Brooks further conceded that when Appellee reached 

for his waist, he did not know what Appellee was reaching for because he had 

taken “his eyes off of him.” Id. at 14. Mr. Brooks explained that Appellee 

thereafter backed out of the store and fled. Id. at 14-15. Mr. Brooks further 

explained that Appellee never brandished a weapon nor pointed a gun in front 

of him. Id. Mr. Brooks remarked that Appellee’s back was facing the front 

door and that the gun was “in back of him.” Id. at 15. Following the hearing, 

the municipal court bound Appellee over for court on all charges except for 

the charge of robbery in the first degree, which the municipal court 
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downgraded to a third-degree felony, concluding that Appellee did not use the 

gun during the commission of the crime. Id. at 20 (“I agree with defense on 

this. He was trying to run . . . . It wasn’t used in the commission of it. He 

was running, he was running.”). 

The Commonwealth filed a motion to refile the charge of robbery, 

graded as a felony in the first degree. On May 19, 2017, Appellee filed a 

“motion to quash return of transcript,”2 seeking the dismissal of all charges

based on a lack of evidence. 

A hearing on the refile motion was held on July 25, 2017 before the

Honorable Tracy Brandeis-Roman. The prosecutor explained to Judge 

Brandeis-Roman that the issue in the case was whether the Commonwealth’s 

evidence presented at the preliminary hearing was sufficient to satisfy a 

charge of first-degree robbery. At the conclusion of the hearing, Judge 

Brandeis-Roman denied the Commonwealth’s request to refile the charge of 

first-degree robbery, but permitted the Commonwealth to charge Appellee 

with robbery in the second degree. In so doing, the trial court reasoned that 

the Commonwealth did not produce any evidence that Appellee brandished or 

____________________________________________

2

In Philadelphia County, a motion for writ of habeas corpus challenging the 

sufficiency of the evidence presented by the Commonwealth at the preliminary 

hearing is generally referred to as “motion to quash the return of transcript.” 

Commonwealth v. Santos, 976 A.2d 360, 361 n.3 (Pa. 2005) (noting that 

it is common practice in Philadelphia County to call a petition for writ of habeas 

corpus a motion to quash the return of transcript), accord Commonwealth

v. McBride, 595 A.2d 589, 590 (Pa. 1991). 
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pointed the gun at anybody. The Commonwealth timely appealed to this 

Court.3 Both the Commonwealth and the trial court have complied with 

Pa.R.A.P. 1925. 

On appeal, the Commonwealth raises a single issue for our review. 

Did the evidence make out a prima facie case of robbery as a 

felony of the first degree, under 18 Pa.C.S.A. § 3701(a)(1)(ii) or 

18 Pa.C.S.A. § 3701(a)(1)(iii), where [Appellee] retrieved a 

firearm from his waistband during his flight from a supermarket 

after he was stopped for being suspected of shoplifting?

The Commonwealth’s Brief at 4. Essentially, the Commonwealth argues that 

the trial court erred in concluding that Appellee did not place Mr. Brooks, the 

security guard, in fear of immediate serious bodily injury.4 

The purpose of a preliminary hearing is to determine whether the 

Commonwealth has made out a prima facie case for the offenses charged. 

Commonwealth v. Jackson, 894 A.2d 1254, 1257 (Pa. Super. 2004) 

(citation omitted). “A prima facie case consists of evidence, read in the light 

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3

In its notice of appeal, the Commonwealth certified that the dismissal of the 

first-degree robbery charge substantially handicaps its prosecution. We, 

therefore, have jurisdiction over this appeal. See Pa.R.A.P. 311(d). 

4 To the extent the Commonwealth justifies the charge of first-degree robbery 

under Section 3701(a)(iii), such argument is waived because the 

Commonwealth never raised it before the trial court. See Pa.R.A.P. 302(a) 

(“Issues not raised in the lower court are waived and cannot be raised for the 

first time on appeal.”). Nonetheless, as the Commonwealth cogently points

out, under Pennsylvania Rule of Criminal Procedure 564, the trial court “may 

allow an information to be amended, provided that the information as 

amended does not charge offenses arising from a different set of events and 

that the amended charges are not so materially different from the original 

charge that the defendant would be unfairly prejudiced.” Pa.R.Crim.P. 564. 

We, however, express no opinion on the strength or merit of a Section 

3701(a)(1)(iii) charge. 
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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.” Commonwealth v. Black, 108 A.3d 70, 77 (Pa. Super. 2015) 

(citation omitted). As we have explained previously:

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. Marti, 779 A.2d 1177, 1180 (Pa. Super. 2011) (internal 

citations and quotations omitted) (emphasis added). Moreover, “suspicion 

and conjecture are not evidence and are unacceptable as such.” 

Commonwealth v. Packard, 767 A.2d 1068, 1071 (Pa. Super. 2001) 

(citations omitted). Proof beyond a reasonable doubt is not required. Black, 

108 A.3d at 70; see McBride, 595 A.2d at 591 (noting that the prima facie 

hurdle is less demanding than the Commonwealth’s burden at trial of proving 

guilt beyond a reasonable doubt).

“It is settled that the evidentiary sufficiency, or lack thereof, of the 

Commonwealth’s prima facie case for a charged crime is a question of law as 

to which an appellate court’s review is plenary.” Commonwealth v. 

Karetny, 880 A.2d 505, 513-14 (Pa. 2005) (citations omitted). “[T]he trial 
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court is afforded no discretion in ascertaining whether, as a matter of law and 

in light of the facts presented to it, the Commonwealth has carried its pre-trial 

prima facie burden to make out the elements of a charged crime.” Id. at 513. 

Therefore, we are not bound by the legal determinations of the trial court. 

Commonwealth v. Dantzler, 135 A.3d 1109, 1112 (Pa. Super. 2016). 

To sustain a conviction for first-degree robbery under Section 

3701(a)(1)(ii), the Commonwealth must establish that “in the course of 

committing a theft,” the defendant “threatens another with or intentionally 

puts him in fear of immediate serious bodily injury.” 18 Pa.C.S.A. § 

3701(a)(1)(i). “An act shall be deemed ‘in the course of committing a theft’ 

if it occurs in an attempt to commit theft or in flight after the attempt or 

commission.” 18 Pa.C.S.A. § 3701(a)(2). 

A conviction under Section 3701(a)(1)(ii) is contingent upon the type of 

bodily harm threatened. See Commonwealth v. Ross, 570 A.2d 86, 87 (Pa. 

Super. 1990) (evidence sufficient to show appellant, by the use of an upraised 

knife, threatened the victim with serious bodily injury), appeal denied, 593 

A.2d 417 (Pa. 1990). The Commonwealth need not prove a verbal utterance 

or threat to sustain a conviction under Section 3701(a)(1)(ii). 

Commonwealth v. Hopkins, 747 A.2d 910, 914 (Pa. Super. 2000) (citations

and quotation marks omitted). It is sufficient if the evidence demonstrates 

aggressive actions that threatened the victim’s safety. Id. For the purposes 

of Section 3701(a)(1)(ii), the proper focus is on the nature of the threat posed 

by an assailant and whether he reasonably placed a victim in fear of 
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“immediate serious bodily injury.” Id. (citations omitted). Thus, a reviewing 

court will consider the defendant’s intent and actions and not necessarily the 

subjective state of mind of the victim. Commonwealth v. Rodriquez, 673 

A.2d 962, 966 (Pa. Super. 1996); see Commonwealth v. Nelson, 582 A.2d 

1115, 1118 (Pa. Super. 1990) (“The fact that the threat may not have 

produced the intended fear is irrelevant.”), appeal denied, 593 A.2d 840 (Pa. 

1991); see also Commonwealth v. Mays, 375 A.2d 116, 117-18 (Pa. Super. 

1977) (noting that it is irrelevant that the victim may not have taken the 

threat seriously). The threat posed by the appearance of a firearm is 

calculated to inflict fear of deadly injury, not merely fear of “serious bodily 

injury.” Hopkins, 747 A.2d at 914. A factfinder is entitled to infer that a 

victim was in mortal fear when a defendant visibly brandished a firearm. Id. 

Instantly, based upon our review of the evidence produced at the 

preliminary hearing, viewed in the light most favorable to the Commonwealth 

and accepted as true at this juncture, we conclude that the trial court erred in 

denying the Commonwealth’s motion to refile the robbery charge as a firstdegree felony. The Commonwealth offered the testimony of Mr. Brooks, the 

security guard, who testified that Appellee “reached for a gun” as he stopped 

Appellee at the front door following Appellee’s alleged theft of shrimp and 

lobster. Mr. Brooks testified that he pushed Appellee’s hand away and let him 

back out of the store, uttering to his manager that “we ain’t dying for this.” 

Instead of relying on the foregoing to satisfy the element of “fear of immediate 

serious bodily injury” under Section 3701(a)(1)(ii), the trial court 
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impermissibly engaged in weighing evidence and resolving conflicts in 

testimony. Specifically, the trial court weighed Mr. Brooks’ testimony and the 

surveillance video and found that Mr. Brooks could not have seen or believed 

that Appellee possessed a gun, given Mr. Brooks’ vantage point as depicted 

on the video recording. The resolution of such conflict is best left to the 

discretion of the factfinder. As noted earlier, the weight and credibility of the 

evidence are not factors at this stage. See Marti, supra. Accordingly, we 

conclude that the Commonwealth offered sufficient evidence at the 

preliminary hearing from which a finder of fact may conclude that Appellee 

engaged in first-degree robbery, by putting Mr. Brooks in fear of immediate 

serious bodily injury when Appellee reached for his waist during his tussle with 

Mr. Brooks. 

Insofar as the trial court suggests that the brandishing or pointing of a 

gun is a prerequisite for establishing guilt under Section 3701(a)(1)(ii), we

reject such suggestion. In Commonwealth v. Bragg, 133 A.3d 328, 332 

(Pa. Super. 2016), this Court affirmed the trial court’s ruling that sufficient

evidence supported the defendant’s robbery conviction under Section 

3701(a)(1)(ii), where the defendant entered the bank, disguising himself with 

sunglasses and baseball cap and wearing surgical gloves to conceal his 

fingerprints, and said to the teller “What are you looking at?” In so doing, we 

rejected the defendant’s argument that he could not be guilty of first-degree 

robbery because he did not brandish a weapon or make a specific verbal 

threat. Id. We explained that this Court has never held that brandishing a 
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weapon or making specific verbal threats are required to sustain a conviction 

under Section 3701(a)(1)(ii). Id. Similarly, in Commonwealth v. Davis, 

459 A.2d 1267, 1272 (Pa. Super. 1983), a defendant entered a pipe shop 

through the store window, told the clerk to get back, and removed money 

from the cash register. Viewing the defendant’s mode of entry and his warning 

to the clerk as aggressive and thus implying a threat to the victim’s safety, 

this Court upheld the defendant’s robbery conviction under Section 

3701(a)(1)(ii). Accordingly, it is of no moment that Appellee never brandished 

or pointed his gun at Mr. Brooks. 

In sum, based on the foregoing reasons, we conclude that the 

Commonwealth presented sufficient evidence at the preliminary hearing to 

establish robbery in the first degree under Section 3701(a)(1)(ii). 

Accordingly, we reverse the trial court’s July 25, 2017 order and remand this 

case to the trial court for further proceedings consistent with this Opinion. 

Order reversed. Case remanded. Jurisdiction relinquished. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/27/18