Com. v. Darby, W. ( 2022 )

J-A03034-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
WAYNE DARBY : No. 946 EDA 2021
Appeal from the Order Entered April 19, 2021
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0003038-2020
BEFORE: STABILE, J., DUBOW, J., and McCAFFERY, J.
MEMORANDUM BY McCAFFERY, J.: FILED FEBRUARY 9, 2022
The Commonwealth appeals from the order entered in the Philadelphia
County Court of Common Pleas granting Wayne Darby’s (Appellee) motion to
quash, inter alia, gun and assault charges filed against him.1 The
Commonwealth argues the trial court erred in finding insufficient evidence to
establish a prima facie case on the charged crimes. After careful review, we
affirm.
On April 17, 2020, Appellee was charged with four counts each of
aggravated assault, simple assault, and reckless endangerment of another
person (REAP), and one count each of possession of an instrument of crime
____________________________________________
1 This appeal from an order discharging an accused is properly before us.
See Comwealth v. Lambert, 244 A.3d 38, 41 (Pa. Super. 2020) (an order
discharging an accused constitutes a final order subject to appellate review)
(citation omitted), appeal denied, 260 A.3d 71.
J-A03034-22
(PIC), persons prohibited from possessing a firearm, carrying a firearm
without a license, and carrying a firearm on the public streets of Philadelphia
after a purported car chase and shooting.2
A preliminary hearing was held by the Honorable Richard J. Gordon,
where the Commonwealth presented the following evidence. Philadelphia
Police Officer Ronald Jackson testified that on February 14, 2020, he was
parked on 37th Street facing Haverford Avenue in Philadelphia, Pennsylvania.
N.T. Preliminary H’rg, 10/21/20, at 4. Around 7:20 p.m., he observed two
vehicles, a white Jeep and a “dark-colored SUV[,]” traveling the wrong way
down Haverford Avenue “at a high rate of speed.” Id. at 4-5, 15. About a
minute after he lost sight of both vehicles, he received a call about a possible
shooting at 31st Street and Haverford Avenue. Id. at 6-7. When he
responded, he saw the same white Jeep had crashed into a chain link fence.
Id. at 5. Officer Jackson observed Appellee, the sole occupant of the vehicle,
being removed through the passenger side door by other officers. Id. at 5-6.
Officer Jackson noticed “one spent shell casing” inside the vehicle and “a bullet
hole in a parked unoccupied vehicle on the corner of 31st and Haverford
Avenue” about “30 feet” away from the white Jeep. Id. at 8, 10. Officer
Jackson admitted he did not know how many passengers were in the white
Jeep prior to the crash due to the “tinted windows” and “the high rate of
____________________________________________
2 18 Pa.C.S. §§ 2702(a)(1), 2701(a)(1), 2705, 907(a), 6105(a)(1),
6106(a)(1), 6108, respectively.
-2-
J-A03034-22
speed” at which the vehicle was traveling. See id. at 12-13. Officer Jackson
never observed or recovered a gun from Appellee or the white Jeep. Id. at
17.
Philadelphia Police Detective Dennis Slobodian testified that he later
“assisted” in executing a search warrant on the white Jeep. N.T., Preliminary
H’rg, at 18. Det. Slobodian observed “two bullet holes in the front passenger
door” of the vehicle. Id. He also recovered a car rental agreement in the
name of “Keith Darby” from the white Jeep as well as “two FCCs;”3 one “from
the driver’s seat” and one “from all the way in the back where you would put
luggage or groceries.” Id. at 22-23, 27, 52. When searching the vehicle, Det.
Slobodian noticed the “front passenger side window” was rolled down. Id.
23-24. After rolling the window up, he observed a bullet hole in the window
that lined up with one of the holes in the vehicle’s door. Id. at 24-25. There
were no bullet holes on the exterior of the white Jeep. Id. at 25-27.
Philadelphia Police Detective Joseph Moresi testified that police located
a red Dodge Durango, the “dark-colored SUV[,]” at “40th and Lancaster . . .
a block” from the white Jeep.4 N.T., Preliminary H’rg, at 5, 42. Det. Moresi
later searched the red Dodge and recovered “mail with [Appellee’s] name on
it from the rear cargo area in the glove box.” Id. at 43-44. He later
____________________________________________
3 An FCC is a fired cartridge casing, expelled from a firearm upon discharge.
4Det. Moresi also stated the red Dodge “crashed at 48th and Lancaster.” N.T.
Preliminary H’rg, at 31.
-3-
J-A03034-22
determined Appellee formerly owned the red Dodge. Id. at 47. Officers did
not recover any FCCs from the inside or around the red Dodge. Id. at 49.
Det. Moresi then interviewed S.F., one of the passengers from the red Dodge.5
Id. at 32, 41. S.F. did not testify at the preliminary hearing.
Finally, the Commonwealth introduced Appellee’s prior record,
consisting of a guilty plea for a 2005 felony robbery, and a “certificate of
nonlicensure showing [Appellee] did not have a license to possess or carry a
firearm” in Philadelphia. N.T., Preliminary H’rg, at 53. Appellee stipulated to
his prior record and did not offer any evidence. Id.
Judge Gordon held Appellee for court on all charges. On November 12,
2020, Appellee filed a motion to quash the charges, arguing the
Commonwealth’s evidence was “wholly insufficient to establish the required
elements for any of the charged offenses.” Appellee’s Motion to Quash,
11/12/20, at 2 (unpaginated). The motion to quash was heard by the
distinguished Philadelphia Court of Common Pleas jurist, the Honorable Jeffrey
P. Minehart.
Judge Minehart conducted a hearing on April 19, 2021, at which time
the Commonwealth presented the testimony of T.T.S., another passenger in
the red Dodge, during which the following exchange took place:
____________________________________________
5It is not apparent from Det. Moresi’s testimony whether he first interviewed
S.F. or searched the red Dodge.
-4-
J-A03034-22
[Commonwealth]: So while you were in that car, did you hear
any gunshots? . . .
[T.T.S.]: Yes. . . .
[Commonwealth]: Can you tell me when you heard that?
[T.T.S.]: I heard it as soon as we like – . . . I heard it when we
was driving. [sic.]
[Commonwealth]: [ ] You said you heard it as soon as you drove
by something?
[T.T.S.]: Yes.
[Commonwealth]: All right. And how many [gunshots] did you
hear?
[T.T.S.]: One.
[Commonwealth]: And after you heard that, what happened?
[T.T.S.]: We got into a car accident.
N.T., 4/19/21, at 7. T.T.S. also stated there were four people in the red Dodge
that day. Id. at 8-9. She did not say where the shot came from or identify
anyone who may have fired a gun.
The trial court granted Appellee’s motion to quash all charges. N.T.,
4/19/21, at 18. The Commonwealth filed a motion for reconsideration on April
28, 2021, followed by a notice of appeal on May 9, 2021.6 The presiding
Judge, the Honorable Jeffrey P. Minehart, retired before the Commonwealth
filed its appeal, and thus did not order a Pa.R.A.P. 1925(b) statement or
provide this Court with a Pa.R.A.P. 1925(b) opinion. Because this does not
hinder our review, we address the Commonwealth’s claim on the merits.
____________________________________________
6The record does not indicate that the trial court ruled on the Commonwealth’s
motion for reconsideration.
-5-
J-A03034-22
The Commonwealth raises one issue on appeal:
Did the [trial] court err in ruling that the evidence was insufficient
to establish a prima facie case that [Appellee] committed the
charged crimes, where the evidence, properly viewed in the light
most favorable to the Commonwealth, established that [Appellee]
engaged in a high-speed chase of another SUV traveling the wrong
way down a public street and fired several shots at the other SUV’s
four occupants?
Commonwealth’s Brief at 4.
In its sole claim on appeal, the Commonwealth argues the trial court
erred in quashing all charges because it established a prima facie case at
Appellee’s preliminary hearing. Commonwealth’s Brief at 10. A motion to
quash is “the equivalent in Philadelphia practice of a pre-trial writ of habeas
corpus.” Commonwealth v. Dantzler, 135 A.3d 1109, 1111 (Pa. Super.
2016). Further:
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. In Commonwealth v. Karetny, [ ] 880 A.2d
505 (Pa. 2005), our Supreme Court found that this Court erred in
applying an abuse of discretion standard in considering a pre-trial
habeas matter to determine whether the Commonwealth had
provided prima facie evidence. The Karetny Court opined, “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.”
Id. at 513; see also Commonwealth v. Huggins, [ ] 836 A.2d
862, 865 (Pa. 2003) (“The question of the evidentiary sufficiency
of the Commonwealth’s prima facie case is one of law[.]”). The
[ ] Court in Karetny continued, “[i]ndeed, the trial 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.” Karetny, [880 A.2d] at 513. Hence, we are
not bound by the legal determinations of the trial court. . . .
-6-
J-A03034-22
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 element 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.”
Dantzler, 135 A.3d at 1111-12 (some citations omitted).
The Commonwealth avers, that when reviewing the evidence in the light
most favorable to the Commonwealth, it presented sufficient evidence that
(1) [Appellee] was the sole occupant and driver of the white Jeep;
(2) there were four people in the red Dodge; (3) the Jeep pursued
the Dodge for several blocks at high speeds the wrong way down
Haverford Avenue until they arrived at a dead end; (4) the Dodge
turned onto 31st Street, the Jeep crashed on the hill at the dead
end; and (5) [Appellee] shot at the occupants of the fleeing Dodge
through the Jeep’s front passenger[ ] side door and window.
Commonwealth’s Brief at 11-12. The Commonwealth also claims it
established Appellee was ineligible to carry a firearm, did not have a license
to carry a firearm, and “fired multiple shots from his white Jeep at the four
occupants of the fleeing red Dodge on a public street in Philadelphia.” Id. at
10.
As noted above, Appellee was charged with four counts each of
aggravated assault, simple assault, and REAP, and one count each of PIC and
persons prohibited from possessing a firearm, carrying a firearm without a
license, and carrying a firearm on the public streets of Philadelphia.
A person commits aggravated assault if they “attempt[ ] to cause
serious bodily injury to another.” 18 Pa.C.S. § 2702(a)(1). To prove the
-7-
J-A03034-22
lesser included offense of simple assault, the Commonwealth must establish
that, the defendant “attempt[ed] to cause . . . bodily injury to another[.]” 18
Pa.C.S. § 2701(a)(1). To commit REAP, a violator must “recklessly engage[ ]
in conduct which places [ ] another person in danger of death or serious bodily
injury.” 18 Pa.C.S. § 2705. A person violates Section 907(a) when they
“possess[ ] any instrument of crime with intent to employ it criminally.” 18
Pa.C.S. § 907(a).
To establish a violation of Section 6105, a person must “ha[ve] been
convicted of an offense enumerated in [Section 6105](b)[,]” including felony
robbery, and possessed a firearm. 18 Pa.C.S. § 6105(a)(1). A person violates
Section 6106 if he “carries a firearm in any vehicle . . . without a valid and
lawfully issued license.” 18 Pa.C.S. § 6106(a)(1). A person violates Section
6108 if they “carry a firearm . . . at any time upon the public streets” of
Philadelphia without a license. 18 Pa.C.S. § 6108.
Upon our review, we agree with the trial court’s determination that the
Commonwealth’s witnesses at both hearings failed to establish every element
of each crime charged. Collectively, the officers’ testimony established: a
white Jeep and a red Dodge were speeding down Haverford Avenue in the
wrong direction before crashing;7 by the time officers responded to the white
Jeep’s crash location, Appellee was the only passenger in the car; officers
____________________________________________
7Contrary to the Commonwealth’s characterization, no witness testified the
white Jeep “pursued” the red Dodge for several blocks. See Commonwealth’s
Brief at 11.
-8-
J-A03034-22
observed two bullet holes on the interior of the front passenger door and one
bullet hole in the front passenger window of the white Jeep; there were no
bullet holes on the exterior of the white Jeep; officers recovered two FCCs
from the white Jeep; and Appellee has a prior conviction for robbery, and no
license to possess a firearm. See N.T., Preliminary H’rg, at 4-8, 18, 23-27,
52-53. None of the testifying officers saw a gun or heard a gunshot. None of
the witnesses saw Appellee with a gun or firing a shot. Moreover, the
Commonwealth offered no evidence establishing when the Jeep sustained the
bullet holes or how long the FCCs were in the car. The Commonwealth did
not present any evidence connecting Appellee to a gun.
After Appellee filed a motion to quash, the trial court held a hearing
where the Commonwealth presented additional evidence. The testimony
presented at the motion to quash hearing was similarly ineffective because
only one witness, T.T.S., testified. She stated that she was in the red Dodge
with three other passengers. N.T., 4/19/21, at 6, 8. Although she testified
she heard “one” gunshot, T.T.S. did not say at what moment during the
incident or from what direction she heard the gunshot, nor did she see a flash
from a gunshot. Id. at 7. At no point did T.T.S. see a gun or identify Appellee
as the shooter, or even the driver of the white Jeep. Additionally, no witnesses
testified to observing gun damage to the red Dodge. Viewing this evidence in
the light most favorable to the Commonwealth, none of the above testimony,
even circumstantially, established Appellee possessed a gun during this
incident, that the gunshot T.T.S. heard was aimed or directed at the red
-9-
J-A03034-22
Dodge, or that Appellee was the person in possession of a gun and used it to
shoot at anyone in the red Dodge.
Because we agree with the trial court’s conclusion, the evidence did not
establish “every material element of the charged offense(s) as well as
[Appellee’s] complicity therein[,]” we affirm. See Dantzler, 135 A.3d at
1111-12.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/09/2022
- 10 -