J-S46008-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellant

v.

DARREN BURCH

Appellee No. 1219 EDA 2014

Appeal from the Order March 18, 2014

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0000329-2014

BEFORE: MUNDY, J., OLSON, J., and MUSMANNO, J.

MEMORANDUM BY MUNDY, J.: FILED JULY 21, 2015

The Commonwealth appeals1from the March 18, 2014 order, denying 

its motion to refile certain charges stemming from a robbery in Philadelphia, 

after the municipal court dismissed the same against Appellee, Darren 

Burch.2 After careful review, we reverse and remand for further 

proceedings.

The trial court summarized the relevant factual history of this case as 

follows.

At the preliminary hearing in this case, Elliott 

Weiss testified that he was with a friend on the 2100 

____________________________________________

1 The Commonwealth has certified in its notice of appeal that the trial court’s 

order terminates or substantially handicaps its prosecution pursuant to 

Pennsylvania Rule of Appellate Procedure 311(d).

2 We note that Appellee has elected not to file a brief in this matter.
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block of Catherine Street in Philadelphia at 

approximately 10:15 p.m. on December 1, 2013[,] 

when two males came up from behind. One man put 

his arm around Mr. Weiss’ neck, placed a gun to his 

head and demanded that he give them his cell 

phone. Mr. Weiss complied by reaching into his coat 

pocket and handing over the phone. The assailants 

then turned around and took a couple steps before 

demanding to see Mr. Weiss’ wallet. Mr. Weiss 

immediately opened his wallet, took out the cash and 

handed it to one of the men.

When the robbers left, Mr. Weiss called “911” 

from his friend’s cell phone. In that call he described 

both of his assailants as clean shaven. He estimated 

one man’s height as 5’10” and the other as 5’7”. 

Philadelphia Police Officer Carmen Palmiero testified 

that the only description he received in the radio call 

about the robbery was two black males in their midtwenties wearing dark clothing. Although Mr. Weiss 

identified [Appellee] in a one-on-one identification 

procedure shortly after the incident, when asked by 

the prosecutor if he saw any of his assailants in the 

courtroom, he hesitated for approximately 10 to 15 

seconds and then said he was not sure. On crossexamination, Mr. Weiss reiterated that he did not 

know if [Appellee] was one of the men who robbed 

him. Further, when counsel pointed to [Appellee]’s 

full mustache, beard and side burns, facial hair that 

he had at the time of his arrest, Mr. Weiss agreed 

that had [Appellee] been the robber he would not 

have described him as clean shaven.

Officer Palmiero was responding to the radio 

call of the robbery when he observed two black 

males walking in the area of the 1900 block of 

League Street. The men faced in the officer’s 

direction and then made a quick left onto another 

block where Officer Palmiero observed [Appellee] 

crouched down between two parked cars stuffing an 

item into a backpack. Officer Palmiero drew his 

weapon and apprehended [Appellee] after a quick 

foot pursuit. A search of the bag revealed a loaded 

semiautomatic Tec-9. The officer admitted that he 
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had no information that either perpetrator had a 

backpack or used a Tec-9 in the robbery. No phone, 

cash or any other proceeds from the robbery were 

found in [Appellee]’s possession.

Philadelphia Police Officer Mark Palazzi pursued 

the other male (Hickman) eastbound on the 1900 

block of League Street. During the chase, the officer 

observed that male discard a black handgun in front 

of 1905 League Street. As Officer Palazzi continued 

to chase this male around the corner he saw him 

discard an iPhone in a red case. Mr. Weiss was 

brought to the location where this male was finally 

apprehended and identified him as one of the 

robbers.

Trial Court Opinion, 1/16/15, at 1-3.

The Commonwealth sought to charge Appellee with one count each of 

robbery, criminal conspiracy, possession of a firearm, firearms not to be 

carried without a license, theft by unlawful taking, receiving stolen property, 

carrying firearms in public in Philadelphia, possession of an instrument of a 

crime (PIC), simple assault, and recklessly endangering another person.3 

The municipal court conducted a preliminary hearing on January 9, 2014. At 

the conclusion of said hearing, the municipal court dismissed all charges 

against Appellee for lack of evidence, except for the charges of firearms not 

to be carried without a license and PIC. On January 16, 2014, the 

Commonwealth filed a notice of its intent to refile the entire original criminal 

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3 18 Pa.C.S.A. §§ 3701(a)(1)(i), 903, 6110.2(a), 6106(a)(1), 3921(a), 

3925(a), 6108, 907(a), 2701(a) and 2705, respectively.
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complaint, including the dismissed charges, in the trial court.4 The trial 

court treated the Commonwealth’s notice of its intent, as a motion to refile 

the dismissed charges, and denied the same on March 18, 2014. On April 

17, 2014, the Commonwealth filed a timely notice of appeal.5

On appeal, the Commonwealth raises one issue for our review.

Properly viewed in the light most favorable to the 

Commonwealth, did the evidence showing that two 

witnesses identified [Appellee] minutes after the 

robbery near the crime scene establish a prima facie

case of robbery, conspiracy, and related offenses?

Commonwealth’s Brief at 4.

We begin by noting our well-settled standard of review. A preliminary 

hearing is similar to a pre-trial habeas corpus hearing. Commonwealth v. 

Black, 108 A.3d 70, 77 (Pa. Super. 2015) (citation omitted). The purpose 

of such a hearing is to determine whether the Commonwealth had made out 

a prima facie case for the offenses charged. Commonwealth v. Jackson, 

849 A.2d 1254, 1257 (Pa. Super. 2004) (citation omitted). “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 

____________________________________________

4 We note that the municipal court’s decision was non-appealable as this 

Court has held an attempt at reinstituting the dismissed charges is the 

Commonwealth’s only recourse. Commonwealth v. Carbo, 822 A.2d 60, 

64 (Pa. Super. 2003) (en banc) (citation omitted).

5 The Commonwealth and the trial court have complied with Pennsylvania 

Rule of Appellate Procedure 1925.
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and that the accused is probably the perpetrator of that crime.” Black, 

supra. Proof beyond a reasonable doubt is not required. Id.

We have held that in determining the presence or 

absence of a prima facie case, inferences reasonably 

drawn from the evidence of record that would 

support a verdict of guilty are to be given effect, but 

suspicion and conjecture are not evidence and are 

unacceptable as such. Further, since a trial court 

must view the evidence in the light most favorable to 

the Commonwealth when ruling upon a petition for 

writ of habeas corpus, it is inappropriate for the trial 

court to make credibility determinations in deciding 

whether the Commonwealth established a prima 

facie case.

Id. Similar to an order granting a habeas petition, we will reverse such an 

order only if the trial court committed a manifest abuse of discretion. 

Carbo, supra at 63.

In this case, the trial court denied the Commonwealth’s motion to 

refile the previously dismissed charges based on the fact that there was 

insufficient evidence to establish identity. Trial Court Opinion, 3/26/15, at 4. 

The Commonwealth counters in its brief that it did present sufficient 

evidence of Appellee’s identity to establish its prima facie case. Specifically, 

the Commonwealth avers that it met its burden primarily because when “the 

victim was brought to [Appellee]’s location, he immediately identified 

[Appellee] as one of his assailants.” Commonwealth’s Brief at 15. The 

Commonwealth further points out that an eyewitness also identified Appellee 

as one of the perpetrators. Id. at 15-16.
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At the preliminary hearing, Weiss testified that at the time he made 

his initial identification of Appellee on the night of the offenses, he identified 

Appellee as one of his assailants, and that he was entirely sure of said 

identification at the time. N.T., 1/9/14, at 9. In addition, Officer Palmiero 

testified and corroborated that Weiss “immediately” identified Appellee as 

one of his assailants. Id. at 26. Officer Palmiero also stated that Weiss’ 

female friend, who was with him at the time of the robbery, upon seeing 

Appellee, “started hysterically crying saying, yes, that’s him[.]” Id. at 27.

The trial court acknowledged the above testimony. Trial Court 

Opinion, 1/16/15, at 4. However, the trial court denied the Commonwealth’s 

motion to refile the charges based on the following rationale.

Here, the victim of the robbery testified that he 

was sure his assailants were clean shaven. This 

testimony was at odds with the fact that [Appellee] 

had a full mustache, beard and side burns when he 

was arrested shortly after the incident. The incident 

took place at night and happened very quickly. 

Although Mr. Weiss identified [Appellee] in an on the 

street one-on-one identification procedure 

approximately fifteen minutes after the robbery, he 

was unable to identify him at the preliminary hearing 

and repeatedly stated that he was not at all sure if 

[Appellee] was one of the men who robbed him. 

Further, [Appellee] was not in possession of any of 

the proceeds of the robbery when arrested, and the 

firearm in his possession was not the weapon used in 

the incident. The fact that he was in unlawful 

possession of a firearm at the time [the] police 

approached him provides an independent reason for 

his flight from the officers.

Id.
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After careful review of the certified record, we conclude the trial court 

erred in denying the Commonwealth’s motion. The trial court’s cardinal 

reason for denying the Commonwealth’s motion was that Weiss’ in-person 

identification on the night of the robbery contradicted the fact that “he was 

unable to identify him at the preliminary hearing.” Id. The trial court 

further stated that Weiss believed his assailants to be clean shaven, but 

Appellee was not. Id. Respectfully, in our view, the only way the trial court 

could reach this conclusion was by weighing the evidence, i.e. the two 

identifications against one another. Stated another way, the trial court 

essentially credited Weiss’ lack of identification at the preliminary hearing 

and rejected his identification on the night of the incident. It is axiomatic 

that “it is inappropriate for the trial court to make credibility determinations 

in deciding whether the Commonwealth established a prima facie case.” 

Black, supra; see also Commonwealth v. Marti, 779 A.2d 1177, 1180 

(Pa. Super. 2001) (stating, “the weight and credibility of the evidence are 

not factors at [the pre-trial] stage, and the Commonwealth need only 

demonstrate sufficient probable cause to believe the person charged has 

committed the offense[]”). The trial court essentially made a credibility 

determination, which is exclusively the role of the fact-finder at a trial. As a 

result, we conclude the trial court abused its discretion when it denied the 

Commonwealth’s motion to refile the charges. Carbo, supra.
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Based on the foregoing, we conclude the trial court erred when it 

denied the Commonwealth’s motion to refile the charges that were 

dismissed by the municipal court. Accordingly, the trial court’s March 18, 

2014 order is reversed, and the case is remanded for further proceedings, 

consistent with this memorandum.

Order reversed. Case remanded. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/21/2015