from the Order April 5, 2017 In the Court of Common Pleas of
Philadelphia County Criminal Division at No(s):
BEFORE: PANELLA, P.J., BENDER, P.J.E., GANTMAN, P.J.E.,
LAZARUS, J., OLSON, J., KUNSELMAN, J., NICHOLS, J., MURRAY,
J., and McLAUGHLIN, J.
Commonwealth of Pennsylvania appeals from the order, entered
in the Court of Common Pleas of Philadelphia County,
dismissing charges of first-degree murder and possession of an
instrument of crime ("PIC") against Carlos Perez
after a second preliminary hearing. After careful review, we
approximately 1:00 a.m. on August 21, 2016, Andrew Hazelton
and Hector Martinez went to Bleu Martini, a bar in
Philadelphia. N.T. First Preliminary Hearing, 3/22/17, at
4–5. They made their way to "a small[, ] confined
area" where the two men split from one another.
Id. at 5–8. Martinez talked to a friend, while
Hazelton danced with a woman "five to eight" feet
from Martinez. Id. at 5–7. Perez, already at
Bleu Martini, was seated at a table approximately four feet
from where Hazelton was dancing. Id. at 8. At
approximately 1:50 a.m, Marquis McNair, a bouncer at Bleu
Martini, spotted Hazelton and Perez pushing one another. N.T.
Second Preliminary Hearing, 4/5/17, at 22–27. The two
men were shoving one another in the center of two groups,
comprised of between five and fifteen people each, when
McNair stepped in and separated them. Id. at 27,
54–55. Hazelton told McNair that he and Perez knew one
another and that everything was "cool."
Id. at 59. McNair did not see any weapons or broken
bottles following this initial altercation. Id. at
61. McNair and a second bouncer continued to monitor the
area, standing approximately ten to fifteen feet from
Hazelton and Perez. Id. at 32.
minutes later, Hazelton and Perez began shoving one another
again. Id. at 34. McNair saw Perez and Hazelton
pushing one another, and witnessed Perez make an "arm
movement" towards Hazelton's neck, but he neither
saw Perez stab Hazelton, nor observed a weapon of any kind in
Perez's hands. Id. at 62–64, 76. However,
when McNair and his colleague stepped in to break up the
second shoving match, he heard a woman exclaim, "they
cut him[.]" Id. at 35, 48. McNair then noticed
Hazelton holding his neck. Id. at 66, 77–78.
When Hazelton removed his hand from his neck, blood began
"gushing out[.]" Id. at 35.
only noticed something amiss when the two bouncers moved to
separate Hazelton and Perez. N.T. First Preliminary Hearing,
3/22/17, at 9, 33–34. When Martinez saw Hazelton emerge
from the crowd holding his neck, he followed Hazelton
outside. Id. Hazelton tried to speak, but was unable
to do so, due to the severity of his wound. Id. at
10. Martinez applied pressure to Hazelton's neck in an
attempt to stanch the bleeding. Id. at 34– 35.
Shortly thereafter, Martinez saw Perez exit Bleu Martini.
Id. at 35. Martinez, who assumed Perez played a role
in Hazelton's injury because of the blood on Perez's
shirt, punched Perez in the face. Id. at 11, 35.
Perez went back into Bleu Martini.
Id. at 11.
began clearing patrons out of the club shortly after
separating Perez and Hazelton because it was nearing Bleu
Martini's 2:00 a.m. closing time. N.T. Second Preliminary
Hearing, 4/5/17, at 36. He encountered Perez walking around
the club in a tank top, and asked Perez why he was not
wearing a shirt, as doing so violated Bleu Martini's
dress code. Id. at 36–37. Perez told McNair he
took his shirt off and threw it in the bathroom trashcan
after it got covered with blood. Id. at 39–40.
McNair then escorted Perez to the bathroom to retrieve the
shirt. Id. at 39–40. Perez stayed at the bar
under the supervision of Bleu Martini security, not in
connection with the killing, but because of the $600 he owed
on his bar tab. Id. at 92, 100.
approximately 2:00 a.m., a pedestrian on Second Street
alerted Philadelphia Police Officer Charles Stone to the
stabbing. Id. at 85. Upon entering Bleu Martini, the
staff directed Officer Stone towards Perez, who was seated
alone in a booth. Id. at 86–88. Perez
initially denied any involvement in the fight. Id.
at 90–92. When Officer Stone asked why he was not
wearing a shirt, Perez retrieved his bloody shirt from under
the booth. Id. When Officer Stone asked how he got
blood on his shirt, Perez said he got hit. Id. at
92. Officer Stone consulted with detectives, who ordered
Perez be brought to the police station. Id. The
police were unable to find the weapon used to cut
Hazelton's throat. Id. at 103.
died at the hospital later that day. N.T. First Preliminary
Hearing, 3/22/17, at 37. The medical examiner's office
determined Hazelton's death resulted from the stab wound
he sustained to his neck, which severed his jugular vein and
trachea. Id. at 37. On February 23, 2017, police
arrested Perez in connection with Hazelton's death, and
on February 24, 2017, Perez was arraigned on charges of
first-degree murder and PIC.
March 22, 2017, the Commonwealth presented its case to
Philadelphia Municipal Court Judge Thomas Gehret. In addition
to Martinez's testimony, the Commonwealth moved the
following exhibits into evidence: Martinez's August 21,
2016 statement to police (C-1); Martinez's September 29,
2016 statement to police (C-2); a photo array shown to
Martinez during his second statement to police (C-3); the
medical examiner's report stating Hazelton's cause of
death as a stab wound sustained to neck (C-4); a trace
laboratory report of Perez's shirt (C-5); and a DNA
laboratory report indicating the blood found on Perez's
shirt belonged to Hazelton (C-6). At the conclusion of the
hearing, Judge Gehret dismissed Perez's charges for lack
of evidence. The Commonwealth refiled charges later that day.
was subsequently brought before the Court of Common Pleas,
the Honorable Kathryn Streeter Lewis presiding, where, in
addition to McNair's and Officer Stone's testimony,
the Commonwealth introduced the following exhibits into
evidence: a picture of Bleu Martini's interior (C-1);
McNair's statement to police from February 8, 2017 (C-2);
pictures of Perez's bloody shirt (C-3); and the statement
of Officer Stone from August 22, 2017 (C-4). Judge Lewis
dismissed the charges against Perez on the grounds that
"the Commonwealth was unable to prove at a prima
facie level that it was [Perez] who stabbed and killed
[Hazelton]." Pa.R.A.P. 1925(a) Opinion, 7/28/17, at 9.
Commonwealth timely appealed and a divided three-judge panel
of this Court quashed its appeal as interlocutory. On June
18, 2018, the Commonwealth filed a petition for reargument en
banc. On August 8, 2018, we withdrew our previous panel
decision and granted the Commonwealth's petition.
Commonwealth raises the following questions for our review:
1) Whether the Commonwealth's appeal is from an
interlocutory order or a final order, after the Philadelphia
trial court twice concluded that the Commonwealth failed to
establish a prima facie case of the charges against
[Perez] and dismissed the charges.
2) Properly viewed in the light most favorable to the
Commonwealth, did the evidence and all reasonable inferences
therefrom establish a prima facie case of murder and
related offenses, where [Perez] provoked two altercations
with the victim moments before he was fatally stabbed in the
neck, and then tried to flee the scene, conceal evidence, and
lie to police about his involvement?
Brief of Appellant, at 4.
first argument, the Commonwealth asserts that Philadelphia
Local Rule of Criminal Procedure 520(H) renders Judge
Lewis' order dismissing charges against Perez final,
rather than interlocutory.
general rule, subject to certain exceptions not presently at
issue, this Court's jurisdiction is
limited to appeals from final orders. See
Commonwealth v. Scarborough, 64 A.3d 602, 607 (Pa.
2013) ("As a general rule . . . appellate courts only
have jurisdiction over appeals taken from a final
order."). Our courts have long held "[a] finding by
a committing magistrate that the Commonwealth has failed to
establish a prima facie case is not a final
determination, such as an acquittal, and only entitles the
accused to his liberty for the present, leaving him subject
to re[-]arrest." Commonwealth v. Hetherington,
331 A.3d 205, 208 (Pa. 1975); cf. Commonwealth v.
Thorpe, 701 A.3d 488, 490 (Pa. 1997) (allowing
Commonwealth's appeal after third preliminary hearing, as
subsequent re-arrest would be prohibited by due process).
following the failure to present a prima facie case,
"if the [C]ommonwealth deems itself aggrieved by [the
magistrate's] decision[, ] it may bring the matter again
before any other officer empowered to hold
preliminary hearings." Hetherington,
supra at 208 (emphasis added).
our Supreme Court found the Hetherington logic
inapplicable to the dismissal of homicide charges in
Philadelphia County, owing to Philadelphia Local Criminal
Rules 520(H) and 605. See Commonwealth v. Prado, 393
A.2d 8, 9–10 (Pa. 1978) ("As a result [of Rules
520(H) and 605] the Hetherington approach of seeking
a review by another judicial officer is not available in
Philadelphia.") (quotation omitted).
520(H) reads, in relevant part, as follows:
520(H) Appeal by Way of Re-Arrest.
When a re-arrest is taken in the nature of an appeal by the
Commonwealth from an earlier dismissal, the Judge assigned to
the Common Pleas Court Motion Court shall hold the
Preliminary Arraignment. The Preliminary Hearing shall
likewise be scheduled in the Common Pleas Court Motions
Court, within three to ten days after preliminary
605 provides, in relevant part, as follows:
Rule 605 Motions Court/Criminal Calendar Program and
All Pretrial Motions Applicable to cases in the Criminal
Calendar Program or Homicide Program will be scheduled by the
applicable Calendar Judge and heard by the Motions Court
Judge assigned to that program.
Philadelphia Criminal Rules (H) and 605, therefore, only
the assigned Motions Court Judge may review a request for
re[-]arrest in a homicide case." Prado,
supra at 10. Orders dismissing homicide charges
following re-arrest are, therefore, deemed final in the
context of Rules 520(H) and 605, as the "prosecution is
effectively barred from re[-]arresting [an appellant] because
of the provisions of the Philadelphia Criminal Rules that
only the assigned Motions Court Judge may review such a
request." Prado, supra at 10; see
also Commonwealth v. Weigle, 997 A.2d 306, 308 n.5 (Pa.
2000) ("under Philadelphia County Local Criminal Rule
(H), Common Pleas Motions Court judges' orders
discharging an accused or denying a re[-]arrest petition
constitute final orders subject to appellate
instant order, issued by the Philadelphia Court of Common
Pleas Motions Court, dismissed homicide charges against Perez
following his re-arrest and a second preliminary hearing.
N.T. Second Preliminary Hearing, 4/5/17, at 115. In light of
our Supreme Court's holding in Prado,
establishing the preclusive effect of Rules 520(H) and 605 on
the Commonwealth's ability to seek review by another
judge following the dismissal of homicide charges from
Motions Court, we find Judge Lewis' dismissal of charges
against Perez constitutes a final order subject to review by
this Court. Prado, supra at 10.
that this Court has jurisdiction over the instant matter, we
proceed to consider whether the evidence presented at
Perez's hearing was sufficient to establish a prima
facie case of first-degree murder. Brief of Appellant,
evidentiary sufficiency of the Commonwealth's case, or
lack thereof, is a question of law; as such, our scope of
review is plenary. Commonwealth v. Karetny,
880 A.2d 505, 528 (Pa. 2005). We have previously described
the well-settled principles governing preliminary hearings,
as well as the Commonwealth's concomitant burden, as
The purpose of a preliminary hearing is to determine whether
the Commonwealth has made out a prima facie case for
the offenses charged. 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 and that the accused is probably
the perpetrator of that crime.
. . .
The Commonwealth establishes a prima facie case when
it produces evidence 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
Commonwealth v. Ouch, 199 A.3d 918, 923 (Pa. Super.
2018) (emphasis added) (internal citations and quotations
prima facie level, "[i]nferences 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." Id. (emphasis added).
Though a judge presiding over a preliminary hearing
necessarily views the evidence through a sharply different
lens than her counterpart at trial, the standard by which we
assess the permissibility of evidentiary inferences remains
consistent at both stages: "Evidentiary inferences, like
criminal presumptions, are constitutionally infirm unless the
inferred fact is more likely than not to flow from the proved
fact on which it is made to depend." See
Commonwealth v. McBride, 595 A.2d 589, 591 (Pa. 1991)
(finding quantum of evidence sufficient to require defendant
stand trial for criminal trespass).
instant case, it is therefore the Commonwealth's burden
to establish support-either by direct evidence or inferences
reasonably drawn therefrom-for the existence of each
element of first-degree murder, as well as probable cause to
believe Perez committed the offense. Ouch,
supra at 923; McBride, supra at
is defined, in relevant part, as follows:
§ 2502. Murder
(a) Murder of the first degree.--A criminal
homicide constitutes murder of the first degree when it is
committed by an intentional killing.
. . . .
"Intentional killing." Killing by
means of poison, or by lying in wait, or by any other kind of
willful, deliberate and premeditated killing.
18 Pa.C.S.A. § 2502(a), (d)
is well-established that to convict a defendant of
first-degree murder, the Commonwealth must show that the
defendant killed another person with the specific intent to
kill that person and malice aforethought."
Commonwealth v. Santos, 876 A.2d 360, 363 (Pa.
2005). "Specific intent to kill can be established
through circumstantial evidence, such as the use of a deadly
weapon on a vital part of the victim's body."
Commonwealth v. Mattison, 82 A.3d 386, 392
the parties involved nor the court below dispute that, for
purposes of a preliminary hearing, the circumstances
surrounding Hazelton's death make out the elements of
first-degree murder. See Brief of Appellant, at 19
("The preliminary hearing court concluded that the
Commonwealth satisfied the [elements of first-degree murder
in] its prima facie case because the evidence showed
that the victim was unlawfully killed by a stab wound to the
neck."); see also Brief of Appellee, at 11
("[T]he parties in the case at bar are in agreement that
a crime did occur[.]"). The sole issue before this
Court, therefore, is whether the evidence, "read in the
light most favorable to the Commonwealth, " shows
"that the accused is probably the perpetrator of [the]
crime." Ouch, supra 923.
Commonwealth argues the following evidence provides probable
cause showing Perez killed Hazelton: (1) Perez and Hazelton
engaged in two shoving matches before Hazelton received his
fatal wound; (2) Perez moved his arm towards Hazelton's
neck before Hazelton was stabbed; (3) Perez attempted to
leave Bleu Martini after the stabbing; (4) Perez twice tried
to discard his blood-stained shirt; and (5) Perez did not
tell police he had Hazelton's blood on his shirt.
See Brief of Appellant, at 17, 19–24.
this evidence, the Commonwealth posits two key inferences
from which it asks this Court to hold Perez for trial.
Id. at 19–21. First, the Commonwealth asks us
to infer the stabbing "could only have resulted from
[Perez's] use of a deadly weapon" because of the
temporal proximity between Perez's arm movement and
Hazelton receiving his neck wound. Id. at 19.
Secondly, the Commonwealth claims Perez's
"subsequent guilty behavior and efforts to conceal his
role in the murder . . . supported the reasonable inference
of his culpability." Id. at 20.
neither of the Commonwealth's proposed inferences
supported by evidence of record. See Prado,
supra at 10–11 (finding inference of
defendant's identity as killer unavailable to
Commonwealth in absence of evidence establishing
defendant's actions at time of killing, motive to kill,
or murder weapon used); and compare Commonwealth v.
Styler, 600 A.2d 1300, 1302 (Pa. Super. 1991) (affording
inference of intent to kill from statement indicating use of
weapon was deliberate response to victim's conduct)
with Commonwealth v. Austin, 575 A.2d 141, 145 (Pa.
Super. 1990) (denying inference of intent to kill based on
evidence of record stating killer swung knife at victim
rather than deliberately plunging it into victim).
Commonwealth's first inference, that only Perez was
capable of stabbing Hazelton because of the proximity in time
between the second shoving match and the stabbing, rests
entirely on McNair's testimony. Brief of Appellant, at
19. McNair-who was directly monitoring Perez and Hazelton
after the first shoving match-did not see Hazelton get
stabbed. See N.T. Second Preliminary Hearing,
4/5/17, at 63 (Q. Okay. But you didn't see anything
happen to the victim during this pushing match? A. I
didn't see no stabbing, basically. Q. That's what
I'm asking you. You didn't see none of that; right?
A. No, I didn't see that."). McNair only realized
Hazelton had been stabbed after an unknown woman shouted
"they cut him" "a couple of seconds"
after McNair separated the two. Id. at 78; see
also id. at 66 ("Q. Okay when she said ['they
cut him'], you did not see the Spanish guy [Perez], did
you? A. No, I was facing the black guy [Hazelton], basically.
Q. You don't know where the Spanish guy was, do you? A.
At that moment, no, because I was right there facing the
point during the second altercation, before McNair noticed
Hazelton had been stabbed, he saw Perez make an "arm
movement" towards Hazelton's
"neck area." Id. at 76. Enough time
elapsed following the arm movement for McNair to separate
Hazelton and Perez. Id. at 77. Moreover, McNair
never saw anyone, including Perez, in possession of an item
that could have been used as a weapon at any point, nor did
he hear any breaking glass. See id. at 61–62.
The police never recovered a weapon. See
id. at 103. Finally, the record shows that the
second, critical confrontation took place in the midst of
between ten and thirty people facing off against one
another. See N.T. 55 (Q. How many
people were in each group? A. . . . [I]t wasn't more than
15; and it wasn't less than five, like it was . . . two
groups of people.").
McNair's testimony as true, we are nonetheless unable to
find it more likely than not that Hazelton's wound
resulted from Perez's use of a deadly weapon, as there
are no facts-be it a weapon located at Bleu Martini or on
Perez's person, clarifying testimony from the woman whose
cries brought Hazelton's injury to McNair's
attention, footage from Bleu Martini's video security
system, or actions evincing a motive on Perez's part-to
supplement McNair's description of a furtive arm
movement, the results of which he did not see. Prado,
supra at 10–11; Ouch, supra at
supra at 591.
Commonwealth's second inference, that Perez subsequently
engaged in "guilty behavior and efforts to conceal his
role in the murder [which] supported the reasonable inference
of his culpability[, ]" rests on an inapposite reading
of the record. See Brief of Appellant, at 20.
Specifically, the Commonwealth's analysis of the legal
implications of flight following a crime and concealing
evidence rests on the assumption that Perez fled or concealed
evidence. See id. (citing Commonwealth v.
Rizzuto, 777 A.2d 1069, 1078 (Pa. 2001) (fleeing scene
of crime can demonstrate consciousness of guilt) and
Commonwealth v. Dollman, 541 A.2d 319, 322 (Pa.
1988) (concealing evidence can prove accused's intent or
state of mind)).
the Commonwealth asserts Perez fled and concealed evidence,
the record shows he stayed at Bleu Martini's premises and
cooperated with bar security and the police. Martinez saw
Perez "coming outside [with] blood on his shirt."
N.T. First Preliminary Hearing, 3/22/17, at 10. Martinez then
"made an assumption" that Perez had stabbed
Hazelton, and punched him in the face. Id. at 11.
Perez then went back inside Bleu Martini. Id. McNair
noticed Perez walking inside Bleu Martini because he was in
violation of the dress code, not because of his behavior
during or after the second pushing match. See N.T.
Second Preliminary Hearing, 4/5/17, at 36–37 ("I
seen the Spanish guy in a tank top basically and the rules to
the club is like you must have a shirt on. So I was like, sir
where's your shirt?"). Perez admitted the blood on
his shirt came from "an incident" in the club and
that the shirt was in the bathroom trashcan. Id. at
39. When McNair demanded Perez retrieve the shirt, he
complied. Id. at 39–40.
Officer Stone arrived, Perez was the lone patron left at Bleu
Martini. Id. at 92. The security staff detained
Perez because of the $600 he owed on his tab, not because
they thought he was involved in stabbing Hazelton. See
id. at 92, 100 ("Q.  So you go in, you see my
client, and they tell you that he got a $600 tab; right? A.
Yes. Q. That's why he was held there, wasn't it? A.
Right."). When Officer Stone asked Perez where his shirt
was, Perez again proved compliant, retrieving his bloody
shirt from under the seat. Id. at 90–92.
Officer Stone subsequently asked Perez how the blood got
there, and Perez "just said he got hit" without
admitting he was involved in a fight. Id. at 92.
actions contrast sharply with the factual circumstances
surrounding the Commonwealth's proffered case law
concerning flight, wherein defendants actually left the scene
of the crime. See Brief of Appellant, at 20 (citing
Rizzuto, supra at 1075–78, (finding
flight evinced consciousness of guilt where defendant told
his friend he was responsible for assaulting neighbor and was
"on the run[.]")). Likewise, Perez's behavior
is clearly distinguishable from the cases the Commonwealth
presents to illustrate the legal implications of concealing
evidence, which detail defendants destroying evidence of
wrongdoing. See id. (citing Commonwealth v.
Truong, 36 A.3d 592, 600 (Pa. Super. 2012) (en banc)
(inferring consciousness of guilt from bucket of bloody rags
defendant used to clean room where he killed his father) and
Commonwealth v. Gonzalez, 858 A.2d 1219, 1223 (Pa.
Super. 2004) (inferring consciousness of guilt where
defendant shot victim in van, left body in van, procured
gasoline, and lit van on fire)). As Perez stayed at the scene
of the crime, cooperated with club staff, and complied with
police, we are unable to find it reasonable to infer
Perez's actions betrayed a consciousness of guilt.
See Ouch, supra at 923.
likewise unable to infer a consciousness of guilt from
Perez's words, which the Commonwealth asserts constitute
a false denial to police. Brief of Appellant, at 21. The