J

- A26038

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NON

- PRECEDENTIAL DECISION

- SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

Appellant

v.

RICARDO DUPLESSIS

Appellee :

:

:

:

:

:

:

:

: IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 2601 EDA 2021

Appeal from the Order Entered November 17, 2021 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP

- 51

- CR

- 0007098

- 2021

BEFORE: BOWES, J., KING, J., and PELLEGRINI, J. *

MEMORANDUM PER CURIAM : FILED MARCH 3, 202 3

Appellant, the Commonwealth of Pennsylvania, appeals from the order

entered in the Philadelphia County Court of Common Pleas, which granted the

motion to quash filed by Appellee, Ricardo D uplessis , and dismissed the

charges brought in the criminal informat ion. We reverse and remand.

The trial court set forth the relevant facts of this appeal as follows:

On December 30

, 2020, Alphonzo Anderson (“Decedent”), was shot and killed at 1109 Rosalie Street. [Appellee] was arrested and charged with Murder and associated charges on January 4, 2021. A preliminary hearing was held on August 9, 2021, where the Commonwealth called Marquita

Gras t y as the only testifying witness. Ms. Grasty ’ s identification of [Appellee] was stipulated between counsel

as Ms. Gras t y and [Appellee] share a child. Ms. Gras t y testified that she and [Appellee] have known each other since 2011, dating on and [off] for approximately six years. Ms. Grasty gave birth to their child in 2017, and officially

_________________ __________ ______ ____ _______

* Retired Senior Judge assigned to the Superior Court.J

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- ended the relationship with [Appellee] in 2019. Over the course of her relationship with [Appellee]

, Ms. Gras t y began dating the Decedent on and off in 20 16. [Appellee] was aware of this relationship.

On the night of December 29

, 2020, Ms. Grasty was at home where she called the Decedent a Lyft at approximately 10:00 p.m. While Ms. Grasty intended to send a screenshot of the Lyft ride to the Decedent, she accidently sent the screenshot to [Appellee], and her mother. [Appellee] responded to the text message asking if Ms. Grasty would speak on the phone. [Appellee] further stated that Ms.

Gras t y would not speak to him since the Decedent would be
at her home. Ms. Gras t y replied to [Appellee’s] message, stating “ Mr. Anderson was coming to get something out of her car and then going home. ”

The Decedent arrived at Ms. Grasty’s home at approximately 11:00 p.m. [Appellee] texted Ms. Grasty stating, “he wa s going for a walk.” Ms. Grasty did not respond. The Decedent was inside Ms. Grasty’s home for a few hours before leaving to sleep in Ms. Grasty ’ s Honda Accord, parked in the rear of her home. To Ms. Gras t y ’ s knowledge, people did not usually travel in the back area of her home, but [Appellee] had previously been in that area.

When the Decedent left to sleep in the car, Ms. Gras t y went to her bedroom to go to sleep. Overnight, Ms. Gras t y woke up to the sound of four gunshots. Ms. Gras t y sent a text message, checking on the Decedent. Without receiving a response, Ms. Gras t y went back to sleep under the assumption the Decedent was still asleep. At approximately

7 :00 a.m. Ms. Gras t y walked outside to find the Decedent sitting in the car, cover ed in blood. Counsel further stipulated that if O fficers McDonna and McCabe were to testify, they would attest to arriving at 1109 Rosalie Street
on December 30

, 2020 at approximately 7:39 a.m. where they found the Decedent sitting in a gray Honda Accord with gunshot wounds to the face.

A video compilation created during the investigation was presented at the preliminary [hearing]. Ms. Grasty was previously shown the video during an initial interview with the homicide unit. While on the stand, Ms. Gra sty viewed
the same video with the inclusion of additional angles.J

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- Testifying to the video compilation, Ms. Gras t y identified [Appellee] as the individual seen walking on Summerdale

A venue. Despite defense counsel objections, Ms. Gras t y ’ s identification of [Appellee] was admitted. Ms. Gras t y further
testified that she was able to accurately identify [Appellee] based on familiarity with his general demeanor due to their long

- term relationship. Although [Appellee] knew Ms.

Gras t y to park her car behind her home, Ms. Gras t y testified

that [Appellee] would not have known the Decedent was sleeping in her car. Ms. Grasty initially said that she did not know [Appellee] to own a gun but attested to his history of violence. In 2019, [Appellee] choked M s. Grasty during a domestic altercation. Ms. Grasty originally testified that [Appellee] did not make any comment regarding her relationship to the Decedent during the incident, however, upon refreshing her recollection with a police statement, it

was est ablished that [Appellee] wrote in a letter to Ms. Grasty “while I was choking you, all I saw was your boyfriend [Decedent].” Further testimony based on the prior statement revealed that Ms. Grasty was aware [Appellee] owned a firearm that he stored in his basement ceiling.

On cross examination, Ms. Grasty testified that multiple residents regularly parked their vehicles in the alley located behind her home. Ms. Grasty was aware that the Decedent was charged with dealing drugs and carrying an illegal

fi rearm but was unaware of his involvement at the time of
his death. Ms. Gras t y admitted that there was nothing specifically unique about [Appellee’s] walk to make it identifiable, nor had [Appellee] suffered an injury that would
make his walk distinctive. The only time [Appellee] went to
Ms. Gras t y ’ s home at night was upon his release from jail in 2020 to pick up their son

.

Lastly, counsel stipulated to the video compilation which is summarized as follows: The video, time stamped at approximately 5:45 a .m., shows an individual walking down Summerdale Ave. toward the back alley where Ms. Grasty ’s parked vehicle is located. An individual is seen dressed in plain, dark, clothing and black shoes. Video surveillance
from a private residential home located o n Rosalie Street, showed the individual entering the alleyway and walking in the direction of the gray Honda Accord. The individualJ

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- proceeds to investigate the vehicle and remove a firearm from his jacket pocket. Surveillance shows the individual walking around the car with the firearm in hand. The
individual then walks to the other side of the alleyway, out of view of the camera. Approximately [two] minutes lapse, and the individual walks past the car again without the firearm present. The next camera angle shows the
individual standing at the Summerdale Ave

. entrance to the alleyway for several minutes. After, the individual returns to the alley he is seen walking towards the car, with the firearm in hand. The individual approaches the car, looks

in side, and proceeds to fire [three] gunshots into the car. The individual then runs out [of] the alley toward F r ontenac
Street. The video surveillance concludes on F r ontenac Street showing the same individual dressed in dark clothing exiting the alley way and running up the street.

(Trial Court Opinion, filed 3/17/22, at 2

- 5) (internal footnotes and record

citations omitted)

.

At the conclusion of the preliminary hearing, Appellee was held for court

on charges of murder, carrying a firearm without a license, carrying a firearm

on public streets in Philadelphia, and possessing instruments of crime (“PIC ”)

. 1

On September 22, 2021, Appellee filed a motion to quash the charges. In it,

Appellee argued that the Commonwealth “failed to establish a prima facie

case” as to any of the charges. (Motion, filed 9/22/21, at ¶3). The court

conducted a nother hearing on November 17, 2021. That same day, the court

granted Appellee’s motion and dismissed all charges. Specifically, the court

determined “ that the Commonwealth failed to establish a prima facie case of

identity.” (N.T. Pretrial Hearing, 11/17/21, at 5).

_________________ __________ ______ ____ _______

1 18 Pa.C.S.A. §§ 2502, 6106, 6108, and 907, respectively.J

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-

The Commonwealth timely f iled a notice of appeal on December 7, 2021.

On January 4, 2022, the court ordered the Commonwealth to file a Pa.R.A.P.

1925(b) concise statement of errors complained of on appeal. The

Commonwealth timely filed its Rule 1925(b) statement on January 18, 2 022.

The Commonwealth now raises one issue for our review:

Did the [trial] court err in ruling that the evidence was
insufficient to establish a prima facie case that [Appellee] committed the crimes charged, where [Appellee’s] ex

girlfriend

— who had kno wn him for more than eight years

— identified him from a surveillance video as the person who repeatedly shot the victim as he lay sleeping in a car parked in an alleyway behind her house?

(Commonwealth’s Brief at 4).

The following principles apply to this Court’s review of an order granting

a pretrial petition for writ of habeas corpus :

We review a decision to grant a pre

- trial petition for a writ
of habeas corpus by examining the evidence and reasonable inferences derived therefrom in a light most favorable to the
Commonwealth. Whether the Commonwealth satisfied its burden of establishing a prima facie case for each charged crime is a question of law, to which this Court ’ s standard of

review is de novo and our scope of review is plenary.

A pre

- trial habeas corpus motion is the proper means for testing whether the Commonwealth has sufficient evidence

to establish a prima facie case. To demonstrate that a prima
facie case exists, the Commonwealth must produce evidence of every material elemen t of the charged offense(s) as well as the defendant ’ s complicity therein. To meet its burden, the Commonwealth may utilize the evidence presented at the preliminary hearing and also may submit additional proof.

Commonwealth v. Wyatt , 203 A.3d 1115, 1117 (Pa.Super. 2019) (internalJ

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-

citations and quotation marks omitted).

On appeal, the Commonwealth emphasizes Ms. Gras ty’s preliminary

hearing testimony identifying Appellee as the individual depicted in the

surveillance video

. In sup port of this identification, t he Commonwealth

reiterates that Ms. Grasty “was intimately familiar with [Appellee’s]

appearance , gait, and demeanor because she had known him for nine years,

dated him for six years, and had a child with him.” (Commonwealth’ s Brief at

12). To the extent that the trial court found Ms. Grasty’s testimony

unconvincing , the Commonwealth insists that the court made “an improper

pretrial credibility determination.” ( Id. at 13). T he Commonwealth concludes

that it presented a prim a facie case as to each of the criminal charges, and

this Court must reverse the order granting Appellee’s pretrial motion. We

agree.

“ 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. Ouch , 199 A.3d 918, 923 (Pa.Super. 2018).

The prel iminary hearing is not a trial. The principal function of a preliminary hear ing is to protect an individual’ s right against an unlawful arrest and detention. At this hearing the Commonwealth bears the burden of establishing at least

a prima facie case that a crime has been committed and that the accused is pro bably the one who committed it.

* * *

In addition, the evidence should be such that if presented at trial, and accepted as true, the judge would be warranted in allowing the case to go to the jury. The standard clearlyJ

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- does not require that the Commonwealth prove the
accused’ s guilt beyond a reasonable doubt at this stage. Most significant in this appeal, the weight and credibility of the evidence is not a factor at this stage.

Commonwealth v. Hilliard , 172 A.3d 5, 10 (Pa.Super. 2017) (emphasis

added ; internal citations and quotation marks omitted). “ 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

mos t favorable to the Commonwealth’ s case. ” Ouch, supra at 923 (quoting

Commonw

ealth v. Marti

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

.

Additionally, t he Pennsylvania Crimes Code defines first

- degree murder

as follows:

§ 2502. Murder

(a) Murder of the first degree.

― A criminal homicide constitutes murder of the first degree when it i s committed by an intentional killing.

18 Pa.C.S.A. § 2502(a).

To find a defendant guilty of first

- degree murder a jury must find that the Commonwealth has proven that he or she unlawfully killed a human being and did so in an intentional,

deliberate and premeditated manner.

It is the element of a willful, premeditated and deliberate intent to kill that distinguishes first

- degree
murder from all other criminal homicide. ...

The mens rea required for first

- degree murder, specific intent to kill, may be established solely from circumstantial

evidence.

Commonwealth v. Schoff , 911 A.2d 147, 159

- 60 (Pa.Super. 2006) (internalJ

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citations and quotation marks omitted).

The Crimes Code also d efines the offense of PIC as follows:

§ 907. Possessing instruments of crime

(a) Criminal instruments generally.

— A person commits a misdemeanor of the first degree if he possesses any instrument of crime with intent to employ it criminally.

* * *

(d) Definitions.

— As used in this section, the following words and phrases shall have the meanings given to them
in this subsection:

* * *

“ Instrument of crime.” Any of the following:

(1) Anything specially made or specially adapted
for criminal use.

(2) Anything used for criminal purposes and possessed by the actor under circumstances not manifestly appropriate for lawful uses it may have.

18 Pa.C.S.A. § 907(a), (d).

T he Unif orm Firearms Act provides, in relevant part, as follows:

§ 6106. Firearms not to be carried without a license

(a) Offense defined.

—

(1) Except as provided in paragraph (2), any person who carries a firearm in any vehicle or any person who carries a firearm concealed on or about his person, except in his place of abode or fixed place of business, without a valid and lawfully issued license under this chapter commits a felony of the third degree.

* * *J

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- § 6108. Carrying firearms on public streets or public property in Philadelphia

No person shall carry a firearm, rifle or shotgun at any time upon the public streets or upon any public property in a city of the first class unless:

(1) such person is licensed to carry a firearm; or

(2) such person is exempt from licensing under se ction 6106(b) of this title (relating to firearms not to be carried without a license).

18 Pa.C.S.A. §§ 6106(a)(1) and 6108.

Instantly, the record shows that Ms. Grasty first met Appellee in 2011,

and she gave birth to his child in 2017. ( See N.T. Preliminary Hearing, 8/9/21,

at 8

- 9). After providing some additional context for th is years

- long

relationship, Ms. Grasty unambiguously identified Appellee as the individual

depicted in the surveillance video:

[PROSECUTOR]: Does Homicide then show you some video from the area around your house?

[WITNESS]: Yes.

[PROSECUTOR]: After you watch the video, do you recognize anyone in the video?

[WITNESS]: Yes.

[PROSECUTOR]: Who do you recognize in the video?

[WITNESS]: [Appellee].

( Id. at 19

- 20 ).

Thereafter, the Commonwealth played a “compilation video,” whichJ

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included images captured by several different cameras on the morning of the

shooting. ( Id. at 20). Again, Ms. Grasty identified Appellee as the individual

in the video:

[PROSECUTOR]: Ms. Grasty, can you see this individual walking?

[WITNESS]: Yes.

[PROSECUTOR]: Do you recognize that walk?

[WITNESS]: Yes.

[PROSECUTOR]: Whose walk is that?

[WITNESS]: [Appellee].

( Id. at 23).

At that point, defense counsel objected and argued that Ms. Grasty’s

testimony was “not a reliable identification because of our inability to see” a

clear image of the individual on the video. ( Id. at 24). The court

acknowledged that “[y]ou can’t necessarily see who that is” in the video, but

Ms. Grasty made a permissible identification “based on a wa lk.” ( Id. ) When

testimony resumed, the prosecutor confirmed that Ms. Grasty was famil iar

with Appellee’s walk and his “general demeanor.” ( Id. at 25 )

. Ms. Grasty

also stated that she had seen Appellee wear clothing that was similar to the

wardrobe worn by the individual in the video. ( See id. )

Despite this evidence, the trial court determined that the

Commonwealth failed to establish that Appellee was the individual depicted in

the surveillance video. The court stated:J

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- Here, evidence established that a premeditated, intentional killing amounting to first

- degree murder occurred on
December 30 , 2020. However, the Commonwealth failed to [demonstrate] that Appellee was, more likely than not, the individual who was responsible for the killing. During the preliminary hearing, the Commonwealth presented a video compilation and stipulated to the summary. Although the video accurately depict s the events of the crime, lay witness identification of the individual shown was not sufficient given
the lack of identifiable factors.

* * *

The video vaguely depicts an individual wearing dark clothing without identifying graphics or apparel logos. Additionally, the individual wore a hood, covering the head and a significant portion of the face. The face of the

individual was not revealed in any of the varying camera angles presented.

* * *

Although circumstantial evidence may create a logical

connection as to [Appellee’s] motive, the witness identification based solely on her relationship with [Appellee

, ] in the absence of further corroborating evidence

, is insufficient to establish that Appellee is responsible for the killing.

(Trial Court Opinion at 7

- 9 ).

On this record, we must disagree with the court’s conclusion that the

Commonwealth failed to provide an adequate identification of Appellee. M s.

Grasty ’s testimony definitively established: 1) she had known Appellee for

years; 2) she was familiar with his appearance and demeanor; and 3) she

believed Appellee was the individual depicted in the video. Under the totality

of these circumstances, on e could reasonabl y infer that Appellee was

responsible for the shooting. See Wyatt, supra

. The trial court’s decision toJ

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-

the contr ary amounts to an impermissible evaluation of the weight of the

evidence at the preliminary hearing stage. See Hilliard, supra

.

Our review of the testimony produced at the preliminary hearing, viewed

in the light most favorable to the Commonwealth and accepted as true at this

juncture, leads us to conclude that the Commonwealth presented sufficient

evidence to e stablish a prima facie case as to murder, PIC, and the firearms

charges filed against Appellee. See Ouch, supra ; Hilliard, supra

.

Accordingly, we reverse the order granting Appellee’s motion to quash and

remand this case for further proceedings.

Order reversed. Case remanded. Jurisdiction relinquished.

Judge Bowes joins this memorandum.

Judge Pellegrini files a dissenting memorandum.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 3/3/2023