OPINION
Connelly, P. J., November 13, 2015
The matter before the Court is pursuant to a Motion to Dismiss for Violation of
Rule 600 filed by Marquise Barnett (hereinafter "Defendant"). The Commonwealth
opposes. A hearing was held before the Court on this matter on November 10, 2015.
FACTS
On May 22, 2014, Officer Deluca of the Erie Police Department arrested the
defendant on Firearm, Fleeing and Eluding, and Accidents Involving Damage to
Property charges pursuant to an attempted traffic stop of a van the defendant was
operating.1 Relative thereto a Forensic Examination Request was generated on
May 22, 2014 by Officer Deluca as to two firearms that were recovered. (See Com.
ex.,. r- ~)
In an incident that occurred on May 21, 2014 on Woodlawn Avenue that may
have been related to the above, the police, via requesting Ptlm. Brown, also sent
several bullets and shell casings for testing. Comparison Testing was additionally
requested by Officer Deluca as to all materials in both crimes. (Com.Ex.1). The
firearms and bullets were received by the Pennsylvania State Police later on June 18,
2014 and June 19, 2014 (see Com.Exs.3 & 4).
1 For full details of this incident see this Court's detailed Opinion dated November 14, 2014. 1 APPENDIX D The case at 1th and Poplar involving Officer Deluca was first scheduled for trial
in the January 2015 term. It was not called. It was scheduled again in the March Term
and was continued by the defense. It was then called for trial in the April term and prior
to jury selection on April 6, 2015 the Firearm and Tool Examiner for the Pennsylvania
State Police, Bureau of Forensic Services, issued his report (see Com.Exs.5 & 6),
revealing for the first time that the incidents were in fact related as one of the firearms
(Kahn Arms) could have discharged one of the bullets and that the other (Taurus) did
discharge one of the bullets. Based on the above information the Commonwealth
moved to nolle pros the charges and Officer Deluca refiled them (on April 15, 2015)
with additional charges of Aggravated Assault (two counts), Discharge of a Firearm into
an Occupied Structure and Reckless Endangering (two counts) based on the new
information contained in the forensics report.
The Pennsylvania Supreme Court has held that the Rule 600 run date is
calculated from the second filing only in circumstances where the withdrawal and refiling
are necessitated by factors beyond the Commonwealth's control, the Commonwealth
has exercised due diligence and the refiling was not an attempt to circumvent the
limitations of Rule 600. Com. v. Meadius, 870 A.2d 802 (Pa. 2005),
In the case at bar the withdrawal (nolle pros) and refiling of the charges was
necessitated by forensic information the Commonwealth received on the day it was
prepared in all aspects to commence trial against the defendant in a timely fashion
(after a defense continuance from the prior term). The completion, issuance and timing
2 of the forensic report were factors beyond the Commonwealth's control and in all
likelihood solely dependent on the particular examiner's work load.
Second, the Commonwealth exercised due diligence in scheduling the trial on
the first day of the April 2014 Court term after the defendant's continuance from the
March term. In all aspects of the case the Commonwealth was ready, willing and able
to try the case at that time.
And finally, while the Commonwealth was aware that dismissal and refiling
would, as a collateral consequence, result in a technical violation of Rule 600, such was
done so not to circumvent Rule 600, but obviously to comply with the requirements of
18 Pa.C.S.A.§110(1)(ii) as to compulsory joinder and to avoid running afoul of this
statute barring later separate prosecution. The Court finds the Commonwealth's
decision to be eminently reasonable under the circumstances, and the Commonwealth
should not be punished under Rule 600 for its decision. A dismissal affects the
prosecution but also diminishes the public's confidence as to its reasonable expectation
that those who have been charged with crimes will face a jury of their peers. Com. v. Schaffer, 712 A.2d 749 (Pa. 1998). And the extreme sanction of dismissal should only
be imposed in blatant cases of prosecutorial misconduct. Com. v. Burke, 781 A.2d
1136 (Pa. 2000). Here the actions of the Commonwealth are not so egregious (they
were in fact reasonable) that the extreme remedy of dismissal be imposed. Com. v. Goldman, 70 A.3d 874 (Pa.S. 2013).
3 f Circulated 10/13/2016 02:19 PM
COMMONWEALTH OF PENNSYLfM1A~ c: flNrT,H~COURT OF COMMON PLEAS 2JJt .• : OF ERie COUNTY, PENNSYLVANIA, • I 10,, I 4 Pt: 3: 0 7 I ,
vs. f:P/.: l; ~~IMINAL DIVISION CLEid CJ.-r---;,,;, ; ... MARQUISE BARNETT E~J :. ~/ • · No . .1633-2014 ) .. 1
Connelly, J., November 14, 2014
The matter before the Court is pursuant to an Omnibus Pre-Trial Motion filed by
Marquise Barnett (hereinafter "Defendant"). The Commonwealth opposes. A hearing
was held after which both Defendant and the Commonwealth submitted briefs.
Statement of Facts
At the October 8, 2014, Omnibus Pre-Trial Hearing Officer Deluca testified that
on or around May 21, 2014, Det. Bizzarro informed him that a Burgundy Ford Van with
license plate number JML4554 ("the van") "had allegedly been involved in a rash of
shootings and may soon be involved in additional shootings." Def. 's Br. in Supp. 1-2.
Det. Bizzarro testified that a known confidential informant (Cl) informed him that the
"van was kept in the area of 17'h and Poplar Streets" and that more shootings may
happen in the future "in the areas of 61h and Wallace Streets and/or 29th and German
Streets and that the shootings were over some type of vendetta." Def. 's Br. in Supp. 2-
On May 21, 2014, between 10:00 and 11 :00 pm, Officers Deluca and Stadler
were patrolling the vicinity of West 1 ?'h and Poplar Streets looking for the van pursuant
to the information received from the confidential informant (Cl). Comm. 's Br. in Opp.
2., Def. 's Br. in Supp. 2. After locating the van in the 700 block of West 1 ?'h street, the
Officers observed an individual enter it and proceed to drive down West 1 ?'h Street.
1 APPENDIX C l.
Def. 's Br. in Supp. 2., Comm. 's Resp. 3. After the van drove away the officers "tried
to follow the van but lost it after a couple of blocks." Def. 's Br. in Supp. 2.
Approximately twenty to thirty minutes later "a report came over the police radio of shots
fired in the area of 5th and Wallace Streets" and later "in the area of 29th and German
Streets" and Woodlawn Avenue. Id. at 3. On May 22, 2014, at 12:04am, the Officers
observed the same van "driving north on Poplar Street between West 1 ath and West
19th Streets." Id. at 4. The Officers attempted to effectuate a traffic stop by turning
behind the van and activating their lights and siren. Id.
After activating the lights and siren the van sped off and a silver object was
thrown from the driver's side window. Preliminary Hearing Transcript (P. T.) 5:21-23,
17:20-24. The van went through a stop sign and came to rest against the front stairs of
a house. P. T. 6:10-17. As a black male wearing a white T-shirt exited the side door of
the van and proceeded to run, the Officers observed a dark object fall from his person.
P. T. 6:24-25, 7:1-19. Officer Stadler pursued the Defendant and ultimately took him into
custody. P. T. 21 :4-25, 22:1-23. As Officer Stadler handcuffed the Defendant's left hand
the Defendant pulled his right arm from behind his back and Officer Stadler struck him
once in the face and right arm "to safely get him into custody." P. T. 22:8-120.
Defendant avers all items seized as the result of the initiation of the traffic stop
should be suppressed as the stop was illegal "as each of those items would be fruits
from a poisonous tree." Def. 's Mot ,i 24. Defendant also requests the "charges of
Possession of Firearm with altered Serial Number; Persons Not to Possess Firearm
(2cts); Firearm w/o license (2cts); RSP, Resisting Arrest; Flee/Eluding; and Accidents
2 .. 1 involving Damage" be dismissed/ "for lack of prima facie evidence." Def. 's Mot.1J 40.
The Commonwealth argues Defendant's Motion to Suppress should be denied because
the Officers "possessed reasonable suspicion to initiate a traffic stop of the van" and
"the Commonwealth met its burden of proving a prima facie case ... " Comm. 's Resp. 8.
Analysisof Law
I. Defendant avers the Officersinitiatedan unlawfultraffic stop and thus the items seized as a resultshouldbe suppressed as fruits from the poisonoustree.
Defendant seeks to suppress all evidence seized as a result of the attempted
investigatory stop" asserting that the Officers did not have reasonable suspicion, based
on the information from the Cl, and the shots fired reports from the evening of May 21,
2014, to pull over the van. Def. 's Br. in Supp. 5. The Commonwealth argues the
Officers "possessed reasonable suspicion to initiate a traffic stop of the van ... "
Comm. 's Resp. 5.
To legally institute an investigative detention/traffic stop an officer must have at
least a reasonable suspicion criminal activity is afoot. Commonwealth v. Jones, 874
A.2d 108, 116 (Pa. Super. 2005). The Court may find reasonable suspicion exists only
where an officer is able to "articulate specific observations which, in conjunction with
reasonable inferences derived from these observations, led him reasonably to conclude,
in light of his experience, that criminal activity was afoot and the person he stopped was
involved in that activity." Commonwealth v. Fulton, 921 A.2d 1239, 1243 (Pa. Super.
2007). "The totality of the circumstances standard remains the governing standard for
the reasonable suspicion analysis and demands an objective consideration of all factors
1 2 Defendant does not address the Disorderly Conduct Charge in his Motion or Brief in Support. 3 The charge of driving under suspension was dismissed at the Preliminary Hearing. P. T. 32:5-11. The parties do not dispute that the Officers' attempt to pull over the van was an investigative detention.
3 attending a tip provided by a police informant - anonymous or not." Commonwealth v.
Brown, 996 A.2d 473, 479 (Pa. 2010).
Although taken alone, facts such as fleeing the scene or mere presence in a high
crime area do not establish reasonable suspicion, a combination of these factors may
establish reasonable suspicion. Commonwealth v. Cook, 735 A.2d 673, 677 (Pa.
1999) (citations omitted). The Pennsylvania Superior Court has found:
When an identified third party provides information to the police, we must examine the specificity and reliability of the information provided. The information supplied by the informant must be specific enough to support reasonable suspicion that criminal activity is occurring. To determine whether.the information provided is sufficient, we assess the information under the totality of the circumstances. The informer's reliability, veracity, and basis of knowledge are all relevant factors in this analysis.
Commonwealth v. Barber, 889 A.2d 587, 593-94 (Pa. Super. 2005) (quotations,
quotation marks, and citations omitted).
While reasonable suspicion is a less rigorous standard than probable cause,
information received from confidential informants may properly form the basis of a probable cause determination ... An informant's tip may constitute probable cause where police independently corroborate the tip, or where the informant has provided accurate information of criminal activity in the past, or where the informant himself participated in the criminal activity.
Commonwealth v. Luv, 735 A.2d 87, 90 (Pa. 1999). In the instant case, Oet.
Bizzarro testified "he had used this particular Cl for approximately 10 years, and that
he/she had provided reliable information on numerous prior cases which led to arrests"
as well as "conviction for crimes, including homicide." Def.'s Br. in Supp. 2, Comm.'s
Resp. 2. See Commonwealth v. Williams, 2 A.3d 611, 613 (Pa. Super. 2010) (finding
4 Cl to be reliable where Cl had provided information for ten (10) years which led to
convictions of over twenty individuals for felony drug violations.) Thus, the record
establishes the Cl was known to Det. Bizzarro and had provided accurate information of
criminal activity in the past.
During their surveillance during the night and early morning on May 21 and May
22, 2014, Officers Stadler and Deluca corroborated the existence of a Red/Burgandy
Ford Van with registration plate number ML4554, which was parked near West 17'h and
Poplar Streets. Comm. 's Resp. 7. Shortly after losing sight of the van, the Cl's
information was further corroborated when shots were reported fired in the areas of
East 61h and Wallace and East 29th and State Streets, as well as Woodlawn Avenue
where a witness reported seeing a "maroon full sized van leaving the area." Comm. 's
Resp. 7.
This ability to predict future events is relevant because only a small number of people are generally privy to an individual's itinerary, [and] it is reasonable for police to believe that a person with access to such information is likely to also have access to reliable information about that individual's illegal activities."
Commonwealth v. Griffin, 954 A.2d at 651 (internal citation and quotation omitted).
After the reported shootings the Officers saw the same van returning to the area
of West 1 ?'h and Poplar Street, being driven by the same black male wearing a white t-
shirt whom they had seen entering the van earlier. Comm. 's Resp. 7. See
Commonwealth v. Griffin, 954 A.2d 648, 653 (Pa. Super. 2008) (Finding reasonable
suspicion existed where officers independently verified the defendant's name, address,
license number, and type of truck, conditions of defendant's house arrest, and that
defendant would shortly be leaving his house to manufacture drugs.) Thus, at the time
5 the Officers activated the lights and siren and attempted to effectuate the investigatory
stop of the van they had reasonable suspicion, based on the previously reliable Cl's
corroborated present information, that criminal activity was afoot and any persons in the
van may be involved in that activity. Therefore, the investigatory stop was proper and
evidence discovered as a result of the stop is not fruit from the poisonous tree and shall
not be suppressed.
II. Defendant avers the Commonwealth has failed to present a prima facie case pursuant to the charges of Resisting Arrest, Receiving Stolen Property, Possession of a Firearm with an Altered Serial Number, Flee/Eluding, Accidents Involving Damage and two counts each of Persons not to Possess Firearms and Possession of Firearm without a license.
Defendant avers the record has not established he was the driver of the van, that
he possessed either handgun, that he intentionally moved his arm or that the Officer
Stadler required 'substantial force' to overcome any resistance. Def. 's Br. in Supp.8-9.
The Commonwealth argues it has met its prima facie burden as to the remaining
charges. Comm.1s Resp. 9-11.
A trial court may grant a defendant's petition for writ habeas corpus where the Commonwealth has failed to present a prima facie case against the defendant. A prima facie case exists when the Commonwealth produces evidence of each of the material elements of the crime charged and establishes sufficient probable cause to warrant the belief that the accused committed the offense. Notably, the Commonwealth does not have to prove the defendant's guilt beyond a reasonable doubt. Further, the evidence must be considered in the light most favorable to the Commonwealth so that inferences that would support a guilty verdict are given effect.
Commonwealth v. Santos, 876 A.2d 360, 363 (Pa. 2005) (citations and internal
quotations omitted). Pennsylvania law has established, "[a]ny driver of a motor vehicle
who willfully fails or refuses to bring his vehicle to a stop, or who otherwise flees or
6 attempts to elude a pursuing police officer, when given a visual and audible signal to
bring the vehicle to a stop, commits an offense as graded in subsection (a.2.)." 75 Pa.
c.s. § 3733. Here, the Commonwealth asserts:
The Patrolmen saw a black male in a white t-shirt enter the van and then saw the van leave the West 17 and Poplar area. After losing surveillance and responding to the shooting call(s), the Patrolmen again observed the suspect van being operated by a black male with a white t-shirt. After the chase where the van ran over the curb, hit a sign and struck the steps and halted, the side van doors opened and the only occupant to alight from the van was a black male with a white t-shirt4 ••• Patrolman Stadler saw the suspect go over a fence and went around to cut him off, all along hearing him run between the houses. Patrolman Stadler found the suspect and took him into custody, the suspect was identified as the Defendant.
Comm.'s Resp. 8-9.
Although Defendant asserts "there was no evidence presented that the
Defendant was the driver of the van ... ,, the Court finds the record establishes the
Defendant was the only person in the van and therefore must have been the operator.
Def.'s Br. in Supp. 8. Thus, the Defendant willfully failed or refused to bring the van to
a stop and then fled from Officer Stadler. See Commonwealth v. Villanueva, 2010 Pa.
Dist. & Cnty. Dec. LEXIS 188, *10-13 (Lehigh 2010) (Finding the Commonwealth
presented a prima facie case for fleeing/eluding where the defendant "turned sharply
and pulled behind the garage in order to avoid b~ing stopped.")5
4 On Page 4 (four) of its Response the Commonwealth stated the Defendant exited the van "just before the van hit a street sign and the front stairs of a residence. n Comm. 's Resp. 4. The Court finds the direct testimony from the Preliminary Hearing to be the more accurate account. 5 In that case the Court also found: "[t]he Defendant further conceded that he had switched places with his female passenger to create the illusion that she had been driving the car." VIiianueva, at *10. 7 Defendant asserts as "there was no evidence presented that the Defendant ever
possessed either of the firearms" the charges relating to the recovered handguns
cannot be sustained. Def. 's Br. in Supp. 8. The Commonwealth argues "the evidence
clearly shows circumstantially he was in actual possession or in the alternative was in
constructive possession of the firearms." Comm. 's Resp. 9.
As to the charge Persons not to Possess Firearms, Pennsylvania law
establishes:
A person who has been convicted of an offense enumerated in subsection (b}, within or without this Commonwealth, regardless of the length of sentence or whose conduct meets the criteria in subsection (c} shall not possess, use, control, sell, transfer or manufacture or obtain a license to possess, use, control, sell, transfer or manufacture a firearm in this Commonwealth.
18 Pa.C.S. § 6105(a)(1) ..
The charges of Firearms Not to Be Carried without a License and Persons not to
Possess Firearms may be established where defendant is found to be in constructive
possession of a firearm. Commonwealth v. De Vaughn Hawkins, 22 Pa. D. & C.5th
406, 410 (Lawrence 2011} citing Commonwealth v, Gutie"ez, 969 A.2d 584, 590 (Pa. Super. 2009). "In order to prove that a defendant had constructive possession of a
prohibited item, the Commonwealth must establish that the defendant had both the
ability to consciously exercise control over it as well as the intent to exercise such
control." De Vaughn Hawkins, 22 Pa. D. & C.5th at 411. See Gutie"ez, 969 A.2d at
590.
In the instant case, the Commonwealth alleges "the defendant to be sole
occupant and driver of the vehicle." Comm. 's Resp. 9. While pursuing the vehicle,
8 Officer Deluca "observed a silver object being tossed· out of the driver's side window."
Comm. 's Resp. 9. Officer Deluca returned to where "silver object was tossed and
located a silver .40 caliber Kahr semiautomatic handgun with an obliterated serial
number.. .it had scrape marks consistent with being tossed across the hard road
surface." Comm. 's Resp. 9-10. "At the time the Defendant jumped from the vehicle,
Patrolman Deluca observed a dark colored object fall from the defendant's body. It fell
to the ground with a metal thud. Patrolman Deluca immediately yelled 'gun, gun, gun.'
Patrolman Deluca recovered the object, a revolver from the ground." Comm. 's Resp.
10. At the Preliminary Hearing Officer Deluca testified the Defendant's prior record
prohibited him from possessing a firearm. P. T. 11 :6-22. Thus, as the Commonwealth
has presented sufficient information to establish that the Defendant had physical control
over the guns, utilized that control, and that he was prohibited from owning a firearm,
the Commonwealth has pied the necessary elements as to the charge of Persons not to
Possess Firearms pursuant to 18 Pa. C.S. § 6105.
As to the charges of Possession of Firearm without a license, Pennsylvania law
established:
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.
18 Pa. C.S. § 6106(a)(1). Here, the Commonwealth has pied Defendant possessed the
firearms recovered and was prohibited from doing so. Thus, the Commonwealth has
pied the necessary elements as to the charge of Possession of Firearm without a
License.
9 ..
As to the charges of Possession of a Firearm with an Altered Serial Number and
Receiving Stolen Property, Pennsylvania law establishes: "No person shall possess a
firearm which has had the manufacturer's number integral to the frame or receiver
altered, changed, removed or obliterated." 18 Pa.C.S. § 6110.2(a). "A person is guilty of
theft if he intentionally receives, retains, or disposes of movable property of another
knowing that it has been stolen, or believing that it has probably been stolen, unless the
property is received, retained, or disposed with intent to restore it to the owner." 18
Pa.C.S. § 3925(a).
Here, the Commonwealth alleges the Defendant tossed "a silver .40 caliber Kahr
semiautomatic handgun with an obliterated serial number'' from the driver's side window
the van. Comm. 's Resp. 9-10. Also, "[a]t the time the defendant jumped from the
vehicle, Patrolman Deluca observed a dark colored object fall from the defendant's
body." Comm. 's Resp. 10. Officer Stadler testified "the revolver was recovered outside
of the van ... The revolver came back stolen ... " P. T. 23:2-8. Thus, as the
Commonwealth has set forth that Defendant possessed these firearms, one with an
altered serial number and one which was reported as stolen, the Commonwealth has
sufficiently pied the elements of Possession of a Firearm with an Altered Serial Number
and Receiving Stolen Property.
As to the charge of Resisting Arrest or Other Law Enforcement:
A person commits a misdemeanor of the second degree if, with the intent of preventing a public servant from effecting a lawful arrest or discharging any other duty, the person creates a substantial risk of bodily injury to the public servant or anyone else, or employs means justifying or requiring substantial force to overcome the resistance.
18 Pa. C.S. § 5104.
10 ..
The statute "does not require the aggressive use of force such as a striking or
kicking of the officer." Commonwealth v. Villanueva, 2010 Pa. Dist. & Cnty. Dec.
LEXIS 188, *10-13 (Lehigh 2010) (quoting Commonwealth v. Miller, 327 Pa. Super.
154, 475 A.2d 145, 146 (Pa. Super. 1984). In Villanueva the Commonwealth was found
to have made a prima facie case for resisting arrest where the arresting officer "needed
to apply 'wrist pressure' to gain compliance from the Defendant" and another police
officer was needed to place him in handcuffs while the defendant "rebuffed the Officers'
attempts to place him in Officer Williams' police cruiser." Id.
Here, the Commonwealth sets forth Officer Stadler, gun drawn, ordered the
defendant to the ground. Comm. 's Resp. 11. After handcuffing the Defendant's left
arm, "the defendant moved his other arm away, towards his waist." Id. Officer Stadler,
"[f]earing the defendant may have a firearm and trying to gain access to it, . . .struck
twice before he was able to handcuff him." Id. Thus, the Commonwealth has sufficiently
established their prima facie case against Defendant for resisting arrest as his actions
prevented Officer Stadler from effectuating a lawful arrest and Officer Stadler, believing
Defendant may have been armed employed substantial force to overcome the
resistance.
As to the charge of Accidents Involving Damage:
The driver of any vehicle involved in an accident resulting only in damage to a vehicle or other property which is driven or attended by any person shall immediately stop the vehicle at the scene of the accident or as close thereto as possible but shall forthwith return to and in every event shall remain at the scene of the accident until he has fulfilled the requirements of section 3744 (relating to duty to give information and render aid). Every stop shall be made without obstructing traffic more than is necessary.
11 ~ . . ...
75 Pa. C.S. § 3743(a). The Pennsylvania Superior Court held "that the duty to stop
under section 3743 arises whenever a driver knows, or in the exercise of reasonable
care should know, that his vehicle has been involved in an accident." Commonwealth
v. Kauffman, 470 A.2d 634, 640 (Pa. Super. 1983). Here, Officer Deluca testified the
Defendant, while fleeing, "ran over a posted sign and then the vehicle came to rest
against the front stairs of a house." P. T. 6:15-17. Officer Deluca also testified the
Defendant exited the van after came to a stop against the house.6 P. T. 6:22-5, 7:1.
Thus, the Court finds the Commonwealth has sufficiently established the Defendant
knew, or should have known, that the van was involved in an accident pursuant to 75
Pa. C.S. §3743(a). Therefore, the Court finds the Commonwealth has established prima
facie cases for the charges of charges of Possession of Firearm with altered Serial
Number; Persons Not to Possess Firearm (2cts); Firearm w/o license (2cts); RSP,
Resisting Arrest; Flee/Eluding and Accidents involving Damage.
6 In its Response the Commonwealth stated the Defendant exited the van "just before the van hit a street sign and the front stairs of a residence." Comm. 's Resp. 4. The Court finds the direct testimony from the Preliminary Hearing to be the more accurate account. 12