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____________________________________ * Former Justice specially assigned to the Superior Court. NON

- PRECEDENTIAL DECISION

- SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

MARIA CRUZ

Appellant :

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:

:

:

:

:

:

: IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 2348 EDA 2017
Appeal from the Judgment of Sentence June 19, 2017 In the Court of Common Pleas of Delaware County Criminal Division at

No(s): CP

- 23

- CR

- 0007399

- 2016

BEFORE: SHOGAN, J., NICHOLS, J., and STEVENS*, P.J.E.

MEMORANDUM BY STEVENS, P.J.E.: FILED MAY 29, 2018

Appellant, Maria Cruz, appeals from the judgment of sentence entered

in the Court of Common Pleas of Delaware County, which sitting as finder of

fact in Appellant’s non

- jury tria l convicted her of Unauthorized Use of a Motor

Vehicle, 18 Pa.C.S. § 3928(a). Sentenced to one year of probation, Appellant

contends the court erred by not granting at the preliminary hearing her motion

to quash the bill of information for the Commonwealt h ’s purported failure to

make out a prima facie case against her. We affirm.

The trial court aptly sets forth the pertinent facts and procedural history

as follows:

On October 12, 2016, Appellant was arrested and charged with Unauthorized Use of a Motor Vehicle, Receiving Stolen Property, Theft by Deception

- False Imprisonment, and Theft by Unlawful Taking

- Movable Property.J

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A Preliminary Hearing was held on November 11, 2016, in front of the Honorable Judge Leonard V. Tenaglia in Darby, Delaware County. At the hearing, the Commonwealth presented evidence from Mr. William Wilmont and Edward Hurley. Mr. Wilmont testified that he is employed by Chester Pike Auto Sales in Delaware County, Pennsylvania. N.T. 11/23/17 at 6. Appellant had purchased two vehicl es, a Town and Country Minivan and a Nissan Rogue, from the lot in Philadelphia, South Philly Auto Sales; both vehicles were registered to Appellant. N.T. at 9. After complications with the Appellant’s payment schedule, she was instructed to bring both v ehicles back and was told that she would be refunded the money she had already paid for vehicles. N.T. at 7.

On September 7, 2016, a repossession company repossessed the Nissan Rogue and transported it to Chester Pike Auto Repair, in Delaware County. N. T. at 12. Appellant and her daughter eventually turned in the Minivan and Appellant’s money, in the amount of $5,260.00, was refunded to her. N.T. at 6

- 7. Appellant turned in a set of keys for each vehicle. N.T. at 8. The Minivan was transported to th e lot at Chester Pike Auto Sale, located up the street, also in Delaware County. N.T. at 10.

The following day, both cars were missing from the respective lots. N.T. at 8. Mr. Wilmont called the police to report the Minivan stolen from the lot. N.T. a t 8.

Mr. Hurley testified that he runs Chester Pike Auto Repair in Delaware County, Pennsylvania, working on repairs and towing vehicles. N.T. at 16, 20. On September 7, 2016, Mr. Hurley came to work and noticed that a Nissan Rogue, which was parked on the f ront of their lot, [and] with the keys hanging on his board, was missing. N.T. at 16. Mr. Hurley contacted the Sharon Hill Police Department to report the vehicle as stolen. N.T. at 16.

On October 11, 2016, Mr. Hurley received a phone call from Ch ester Pike Auto Sales relaying a message that the missing vehicles were located in a lot in Philadelphia. Mr. Hurley drove to the location in Philadelphia and observed the vehicle in a private parking lot. Mr. Hurley contacted the Philadelphia Police Dep artment. Upon their arrival, police officers made contact with Appellant and her daughter. After about an hour of investigation, Appellant turned over keys to the Minivan to the police and began removing her belongings from the Minivan. N.T. at 19.J

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Aft er the Preliminary Hearing, Appellant was bound over to the Court of Common Pleas on the following charges: One count of Unauthorized Use of a Motor Vehicle, one count of Receiving Stolen Property and one count of Theft by Unlawful Taking, all in referenc e to the Minivan.

On January 19, 2017, counsel for Appellant filed a Motion to Quash the Information. On February 27, 2017, after a hearing and a review of the Notes of Testimony from the November 23, 2017, Preliminary Hearing, [the trial] court denied t he Motion.

After a non

- jury trial conducted on June 19, 2017, Appellant was found guilty of Unauthorized Use of a Motor Vehicle and not guilty of Receiving Stolen Property and Theft by Unlawful Taking.

Trial Court Opinion, 10/2/17, at 1

- 3.

Appellant filed a timely notice of appeal and, on August 15, 2017, filed

her Concise Statement of Matters Complained of on Appeal raising the

following issue : “The Court erred in not granting [Appellant’s] Motion to

Quash the Information due to the absence of any eviden ce that Ms. Cruz

committed any offense in Delaware County.” Appellant’s Pa.R.A.P. 1925(b)

Statement, filed 8/15/17.

In Appellant’s brief, she presents the following question for our review:

DID THE TRIAL COURT ERR IN DENYING THE [APPELLANT’S] MOTION TO Q UASH THE INFORMATION DUE TO THE COMMONWEALTH’S FAILURE TO MAKE A PRIMA FACIE CASE FOR ANY OFFENSE AT HER PRELIMINARY HEARING AND THE ABSENCE OF ANY EVIDENCE THAT MS. CRUZ COMMITTED ANY OFFENSE IN DELAWARE COUNTY?
Appellant’s brief at 5.

Appe l lant’s issue on appeal is that the Commonwealth’s evidence at the

preliminary hearing was insufficient to establish a prima facie case as to theJ

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elements of the charged offenses and with respect to the o ffenses having

occurred in Delaware County. Appellant is not entitled to relief on this claim,

however, because, as this Court has held:

The purpose of a preliminary hearing is to avoid the incarceration or trial of a defendant unless there is sufficient evidence to establish a crime was committed and the probabil ity the defendant could be connected with the crime. Commonwealth v. Wodjak
, 502 Pa. 359, 466 A.2d 991 (1983). Its purpose is not to prove defendant's guilt. Once appellant has gone to trial and been found guilty of the crime, any defect in the prelimin ary hearing is rendered immaterial.

Commonwealth v. Tyler
, 587 A.2d 326, 329 (Pa.Super. 1991) (emphasis in

original). See also Commonwealth v. Lee , 662 A.2d 645, 650 (Pa. 1995)

(holding adjudication of guilt on a charge renders moot any allegation that

Co mmonwealth failed to establish a prima facie case for that charge at the

preliminary hearing).

Here, Appellant was found guilty at her non

- jury trial of engaging in the

unauthorized use of a motor vehicle in Delaware County . This guilty verdict

renders i mmaterial and moot the defects alleged to have occurred in the

preliminary hearing. Consequently, we need not address Appellant’s issue , as

it is confined to the preliminary hearing phase of her case.

Judgment of sentence is AFFIRMED.J

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 5/29/18