NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA
Appellant :
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v. :
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JAH ZHANEE INIFI SUTTON : No. 998 WDA 2025
Appeal from the Order Entered July 11, 2025 In the Court of Common Pleas of Washington County Criminal Division at No(s): CP-63-CR-0000220-2022
BEFORE: LAZARUS, P.J., BOWES, J., and LANE, J. MEMORANDUM BY BOWES, J.: FILED: August 25, 2026 The Commonwealth of Pennsylvania appeals from the order that granted the request for habeas corpus relief filed by Jah Zhanee Inifi Sutton (“Appellee”) and dismissed without prejudice the charges brought against her for criminal homicide, criminal conspiracy to commit homicide, and possession of an instrument of crime (“PIC”).1 We affirm.
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1 The Commonwealth asserts that we have appellate jurisdiction both because
the order is a final order appealable pursuant to Pa.R.A.P. 341(a) and because it is an interlocutory order appealable as of right pursuant to Pa.R.A.P. 311(d). See Commonwealth’s brief at 5. In its notice of appeal, the Commonwealth more aptly invoked those Rules in the alternative, and certified that the order terminates or substantially handicaps the prosecution. Our Supreme Court has ruled that an order dismissing all charges without prejudice is not a final order where, as here, there is no legal impediment to the Commonwealth’s ability to reinstate the charges and offer additional evidence at a new preliminary hearing. See Commonwealth v. Sutton, ___ A.3d ___, 2026 (Footnote Continued Next Page)
The evidence adduced to support the charges against Appellee, viewed in the light most favorable to the Commonwealth, are as follows. Appellee was in an intimate relationship with Sidney McLean. McLean and his cousin, Devell Christian, were involved in selling illicit drugs. See N.T. Preliminary Hearing, 2/3/22, at 8. Tecko Tartt was a member of a rival operation. Tartt and his associates, among them Nicholas Tarpley (“Victim”), lured McLean to Donora, Washington County, under the pretext of conducting a drug sale. Instead, they robbed McLean of the heroin he brought with him and held him hostage until Christian brought additional heroin, after which both McClean and Christian were permitted to leave. See Memorandum Order, 7/11/25, at 4.
On February 24, 2021, McLean and Christian retaliated by shooting Victim six times at a convenience store in Donora, resulting in his death. Id. at 24-26. In April 2021, the Pennsylvania State Police (“PSP”) interviewed Tartt as part of the murder investigation. Shown still frames of video footage captured by surveillance cameras at the scene of Tarpley’s killing, Tartt identified McLean and Christian as the shooters. While the murder
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WL 2110556, at *15 (Pa. July 21, 2026). However, the Sutton Court indicated that its holding that such interlocutory orders are not appealable does not apply when, inter alia, “the Commonwealth appeals, pursuant to Pa.R.A.P. 311(d), and properly certifies that the order ‘will terminate or substantially handicap the prosecution[.]’” Id. at *14. As we discern nothing in the certified record causing us to conclude that the Commonwealth’s certification was improper, we proceed to exercise jurisdiction over this appeal pursuant to Rule 311(d).
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investigation proceeded in Washington County, the PSP in June 2021 arrested Christian in Westmoreland County, also taking into custody his companion, Anitra Banks. While Christian denied knowing McLean or anything about Victim’s shooting, Banks told a different story. She informed the PSP that Christian had shown her an online news article about the murder that included images taken from the store’s surveillance footage, indicated that it depicted himself and McLean, and expressed concern that Appellee knew they did it and might tell. Banks confirmed that the murder had been in retaliation for the kidnapping and robbery of McLean. See Memorandum Order, 7/11/25, at 4-5.
Through surveilling Appellee, who was on probation at the time, U.S.
Marshals tracked McLean to a hotel room in Monroeville, Allegheny County, on July 30, 2021. See N.T. Preliminary Hearing, 2/3/22, at 8. The PSP obtained a warrant to search the room for McLean and, upon executing it, discovered Appellee there with him. Appellee provided a false name for herself, claimed to be a prostitute, and asserted that she only knew the man with her as “Mike.”2 Shortly thereafter, the Commonwealth filed complaints
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2 A further search revealed small amounts of drugs, including in Appellee’s purse, but there was no indication of large-scale drug trafficking found in the hotel room. See N.T. Omnibus Pretrial Hearing, 10/17/24, at 54-55, 61. As a result of this incident, Appellee was charged with hindering apprehension, false identification to law enforcement, possession of controlled substance, and possession of a small amount of marijuana. Appellee ultimately pled guilty to both ungraded misdemeanor possession charges and the rest were (Footnote Continued Next Page)
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against McLean and Christian in Washington County for homicide and other offenses related to the slaying of Victim.
On December 3, 2021, the results of DNA testing of the shell casings left at the scene of the shooting revealed a mixture of the DNA of McLean and Appellee. The same day, the Commonwealth instituted these proceedings against Appellee, asserting that she was likewise culpable for Victim’s killing as an accomplice or co-conspirator.
Appellee’s preliminary hearing took place on February 3, 2022. The Commonwealth offered the testimony of three witnesses: the coroner, who established that Victim’s death was a homicide caused by gunshot wounds; Monroeville Police Detective James Monkelis, who detailed the July 30, 2021 apprehension of Appellee at the Monroeville hotel; and Trooper Adam Janosko, who discussed the PSP’s investigation into Victim’s homicide. The Commonwealth offered its two exhibits through Trooper Janosko, namely the surveillance video of Victim’s shooting and the DNA results from the bullet casings recovered from the scene. Trooper Janosko identified McLean and Christian on the video footage, confirmed that McLean and Appellee were an intimate couple, and presented the PSP’s identification of McLean and Appellee as contributors to the DNA mixture recovered from the casings. Trooper Janosko acknowledged that, while it was possible that Appellee could have
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withdrawn by the Commonwealth. See Memorandum Order, 7/11/25, at 7 n.18; Appellee’s brief at 11 n.5.
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been outside the convenience store during the assault on Victim, he had no evidence placing Appellee at the scene during the shooting, and that the search of her cell phone produced “nothing that would be distinctly related to this incident.” Id. at 21, 23. The Commonwealth did not proffer any evidence about the information gleaned from Tartt or Banks at Appellee’s preliminary hearing. Nor did it produce evidence that Appellee was involved in illicit drug sales along with McLean and/or Christian.
At the conclusion of the hearing, the magisterial district judge held all charges for court. The Commonwealth joined Appellee’s case with those of McLean and Christian. Appellee filed an omnibus pretrial motion, which included a request for habeas corpus relief seeking the dismissal of all charges based upon the lack of evidence that Appellee was responsible for Victim’s murder as a participant, accomplice, or co-conspirator. The trial court considered the motion among others at a joint hearing.3 The Commonwealth produced no additional evidence suggesting Appellee’s participation in either Victim’s killing specifically, or in McLean and Christian’s drug operation generally. On that front, it appears that the Commonwealth relied upon the averment in its pre-hearing brief that Appellee had a “continuing connection” with Christian well as with McLean, as Appellee “was observed by the [PSP] on June 10, 2021[,] alleging [sic] placing a bag
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3 The cases of the three co-defendants were ultimately severed by order of March 31, 2025.
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containing a large amount of controlled substances (cocaine and/or fentanyl) in a Chevrolet Malibu operated by Christian,” for which “[she] and Christian appear to be co-defendants in a federal prosecution for that matter.” Brief in Opposition to Defendant’s Omnibus Pretrial Motions, 7/18/23, at 19 (footnote omitted). The Commonwealth supplied the docket number for the federal action, referenced a suppression motion filed by Appellee, and cited Commonwealth v. Greer, 866 A.2d 433, 435 n.2 (Pa.Super. 2005), for the proposition that “the court may take judicial notice of the averments and factual allegations in these pleadings.” Brief in Opposition to Defendant’s Omnibus Pretrial Motions, 7/18/23, at 19 n.8.
The trial court, considering the evidence at the hearings, briefs of the parties, and arguments of counsel, concluded that the Commonwealth failed to present a prima facie case as to any of the charges against Appellee. See Memorandum Order, 7/11/25, at 20. Accordingly, it dismissed all charges without prejudice for the Commonwealth to refile. Id. This appeal followed.
The trial court ordered the Commonwealth to file a Pa.R.A.P. 1925(b)
statement of errors complained of on appeal, and it timely complied. The trial court, calling attention to the Commonwealth’s ability to remedy the deficiencies in the prima facie case and refile the charges against Appellee, directed this Court to its July 11, 2025 memorandum order to satisfy its Rule 1925(a) obligations.
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The Commonwealth presents the following questions for our consideration:
I. Did the trial court err in finding that the Commonwealth failed to meet its burden of proving a prima facie case, when viewing the evidence and its inferences in the light most favorable to the Commonwealth, that [Appellee] committed criminal homicide as an accomplice?
II. Did the trial court err in finding that the Commonwealth failed to meet its burden of proving a prima facie case, when viewing the evidence and its inferences in the light most favorable to the Commonwealth, that [Appellee] committed the inchoate offense of conspiracy to commit criminal homicide?
Commonwealth’s brief at 8 (cleaned up).
We begin with a review of the governing law:
A petition for writ of habeas corpus is the correct method for testing whether the Commonwealth has, prior to trial, established a prima facie case. The prima facie hurdle is less demanding than the Commonwealth’s burden at trial of proving guilt beyond a reasonable doubt. A prima facie case exists when the Commonwealth produces evidence of each of the material elements of the crime charged and establishes probable cause to warrant the belief that the accused committed the offense.
Furthermore, the evidence need only be such that, if presented at trial and accepted as true, the judge would be warranted in permitting the case to be decided by the jury. When determining whether a prima facie case has been established, we must view the evidence in the light most favorable to the Commonwealth, giving effect to all inferences reasonably drawn from the evidence to support a verdict of guilt.
The evidentiary sufficiency of the Commonwealth’s prima facie case is a question of law over which our standard of review is de novo and the scope of review is plenary. We review a decision to grant the defendant’s habeas corpus petition by examining the evidence and reasonable inferences in the light most favorable to the Commonwealth.
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Commonwealth v. Newton, 318 A.3d 133, 138–39 (Pa.Super. 2024) (cleaned up).
Criminal homicide is defined thusly: “A person is guilty of criminal homicide if he intentionally, knowingly, recklessly or negligently causes the death of another human being.” 18 Pa.C.S. § 2501(a). One may be liable for a homicide as an accomplice rather than a principal “so long as the facts adequately support the conclusion that he or she aided, agreed to aid, or attempted to aid the principal in planning or committing the offense, and acted with the intention to promote or facilitate the offense.” Commonwealth v. Markman, 916 A.2d 586, 597 (Pa. 2007). “An accessory after the fact, that is, one who aids the principal after the offense has been committed, is not an accomplice[.]” Commonwealth v. Smith, 495 A.2d 543, 550 (Pa.Super. 1985).
The offense of conspiracy, as charged against Appellee, is defined as follows:
A person is guilty of conspiracy with another person or persons to commit a crime if with the intent of promoting or facilitating its commission he:
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(2) agrees to aid such other person or persons in the planning or commission of such crime or of an attempt or solicitation to commit such crime.
18 Pa.C.S. § 903(a). This Court has explained:
Mere association with the perpetrators, mere presence at the scene, or mere knowledge of the crime is insufficient to establish
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that a defendant was part of a conspiratorial agreement to commit the crime. There needs to be some additional proof that the defendant intended to commit the crime along with his co-
conspirator. Direct evidence of the defendant’s criminal intent or the conspiratorial agreement, however, is rarely available.
Consequently, the defendant’s intent as well as the agreement is almost always proven through circumstantial evidence, such as by the relations, conduct[,] or circumstances of the parties or overt acts on the part of the co-conspirators.
Commonwealth v. Rosario, 248 A.3d 599, 611 (Pa.Super. 2021) (cleaned up). Upon proof “that there was an agreement and the defendant intentionally entered into the agreement, that defendant may be liable for the overt acts committed in furtherance of the conspiracy regardless of which co-conspirator committed the act.” Id. (cleaned up).
The trial court held that the Commonwealth’s evidence did not state a prima facie case against Appellee for homicide either as an accomplice or a member of a conspiracy to kill Victim.4 Regarding conspiracy culpability, the court explained:
In the present matter, it is clear from the evidence and testimony introduced at the preliminary hearing that [Victim] died as a result of gunshot wounds. It is also clear from video evidence submitted by the Commonwealth that the victim was shot six times by two actors. The Commonwealth asserts that the two shooters were male and identifies them as [McLean and Christian]. Accepting this assertion of the Commonwealth, [Appellee] was not present at the time of the shooting and therefore did not directly shoot die victim. Instead, the Commonwealth argues that [Appellee] is charged based on the theory that she is an accomplice and/or co-conspirator of McLean
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4 We analyze only the homicide and conspiracy counts, as the Commonwealth
has expressly declined to challenge the trial court’s ruling as to the PIC charge. See Commonwealth’s brief at 11 n.2.
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and Christian. In support of this theory, the Commonwealth points to [Appellee]’s [DNA] on the shell casing, intimate relationship with McLean and presence with McLean at the time of his arrest, some five months after the shooting.
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. . . This court acknowledges that the prosecution must be afforded the benefit of all inferences reasonably drawn from the evidence, however [a] prima facie [case] cannot be based wholly on speculation. This court, without more of a connection being shown, is forced to agree with [Appellee] that this evidence only establishes that [she] was physically in contact with the bullet at some unknown time in the past. While this gap in information might be remedied at trial, prima facie requires, at least, some minimal showing beyond mere speculation.
While this court wholly agrees with the Commonwealth that the evidence supports that [Appellee] and McLean were an intimate couple that was involved in other criminal activity, and [Appellee] may have been aware of the shooting, such information alone is insufficient to prove that [Appellee] was involved in a criminal conspiracy in the case herein. The record supports that [Appellee] and McLean may have been involved in a relationship for some time, including involvement with criminal drug activity.
Additionally, the record supports that [Appellee] may have lied about her name and her knowledge of McLean and his wanted/warrant status. But this information alone does not equate to criminal conspiracy to first degree homicide. In fact, armed with the information provided by the Commonwealth and knowledge of his investigation, Trooper Janosko candidly testified as to having no additional evidence linking [Appellee] to the crimes charged in this case. Further, although Trooper Janosko testified that “anything is possible,” speculation to this degree is insufficient to establish [a] prima facie [case], particularly considering that the Commonwealth has noticed aggravated circumstances and is prepared to seek the death penalty in this case.
Memorandum Order, 7/11/25, at 13-17 (cleaned up).
The court analogously opined as follows as to the Commonwealth’s accomplice theory:
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Similar to this court’s finding regarding conspiracy, a comprehensive review of the record offers no evidence supporting the theory that [Appellee] actively participated in the planning, executing[,] or post-crime activities in the case herein. The record supports that the Commonwealth had information from two allegedly uninvolved witnesses, Tecko Tartt and Anitra Banks. In interview, Banks indicate[d] that she learned through Christian that he was fearful that [Appellee] might “tell” because she knew about the shooting. This statement does not infer that [Appellee]
was involved in the planning, execution[,] or post-criminal conduct. Tartt makes no mention of [Appellee]. The Commonwealth also acknowledges that interviews were conducted with McLean, Christian[,] and [Appellee], but no further information about the shooting was revealed. Trooper Janosko refers to the evaluation of three cellphones, including at least one belonging to each [Appellee] and McLean and finding no further evidence supporting [Appellee]’s involvement in the case.
[Appellee]’s [DNA] on the shell case could suggest that she assisted in loading the weapon in preparation for McLean and/or Christian to then travel to [the] convenience store and heinously gun down [Victim]. Her [DNA] could equally suggest that she handled ammunition during her (as described by the Commonwealth) “distinct[,]” “intimate[,]” and long-term association with McLean and/or in their alleged co-involvement with other criminal activity. Further, [Appellee] may have simply handled the ammunition for any other reason. Stated plainly, without more, this court cannot reach a reasonable inference, but may only speculate on what has happened. And while this court recognizes the extensive, comprehensive and thorough investigation of Trooper Janosko in seeking justice for [Victim], unlike Trooper Janosko, this court cannot find that speculating “anything could be possible” is sufficient for [a] prima facie [showing].
Id. at 19 (cleaned up).
The Commonwealth insists that the trial court analyses overlook an additional tie Appellee has to Victim’s shooters, namely that, along with being McLean’s intimate partner, she also has a “close connection” with Christian evinced by their federal indictment on drug charges related to their joint
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possession of a large amount of contraband in between the time of Victim’s killing and McLean’s arrest. See Commonwealth’s brief at 25. It emphasizes her relationships with both identified assailants repeatedly in advocating for reversal. Id. at 19 (referencing Appellee’s “continuing connections to both alleged shooters after the homicide” (emphasis in original)); id. (“known to have relationships with both accused shooters”); id. at 23-24 (“This is not the case of [Appellee] merely being present at the place where the shooting happened—this is the case of [Appellee] and McLean both touching the fatal ammunition before it was loaded into a murder weapon and then [Appellee] continuing to be involved with both shooters, one in drug trafficking, and the other in lying about his (and her) identity at a time she knew he was wanted for this exact killing.” (emphases in original)); id. at 24 (asserting continuing relationships with both McLean and Christian); id. at 25 (“[Appellee], McLean, and Christian all had a connection to one another which predated this shooting on February 24, 2021.”); id. at 26 (“[Appellee] and Christian have a connection in drug trafficking in the months after the shooting[.]”).
We agree that this additional information presents a stronger showing that Appellee was not merely associated with one of the shooters, but may have been an active participant in the drug enterprise with which Victim assisted in interfering, thus prompting a retaliation. The problem is that the Commonwealth’s basis for including these references to Appellee’s purported
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connection to Christian derives not from evidence offered at any hearing in this case, but solely from pleadings filed in the federal court case.5 Citing this Court’s decision in Greer, the Commonwealth maintains that we “may take judicial notice of the averments and factual allegations in these pleadings.” See Commonwealth’s brief at 10-11 n.1.
The Commonwealth is incorrect. The Greer Court was presented with an appeal from a post-conviction petition filed in a decades-old case with an extensive procedural history. We quoted a prior opinion that summarized that history and noted that several petitions filed in federal court were included neither there nor in the certified record. We nonetheless took judicial notice of the federal courts’ resolutions of those filings, explaining:
We recognize that we may not consider matters de hors the record. See Commonwealth v. Atkinson, 528 A.2d 210, 217 n.1 (Pa.Super. 1987) (quoting Commonwealth v. Pursell, 495 A.2d 183, 188 n. 3 (Pa.Super. 1985) (stating, “‘[F]actual allegations, de hors the record, cannot be considered by a reviewing court and the practice of asserting facts in an appellant’s brief, which allegations do not appear in the record, has recently again been condemned’ by our Supreme Court.”)). We take judicial notice of these orders, which are not factual allegations but public records, only for the purpose of indicating the extent to which appellant has taken advantage of judicial process, to no avail.
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5 Detective Monkelis testified at the omnibus pretrial hearing that, just before
McLean’s arrest, Detective Monkelis learned that Appellee had been “apprehended in New Stanton by the [PSP], Greensburg Barracks, relation to drug activity.” N.T. Omnibus Pretrial Hearing, 10/17/24, at 62-63. However, he did not offer testimony associating that drug activity with either Christian or McLean.
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Greer, 866 A.2d at 435 n.2 (emphasis added, citations altered).
As such, Greer lends no support to the Commonwealth’s contention that we may take judicial notice of factual allegations in the federal court pleadings. Nor do we find support for that proposition elsewhere. Rule 201 of the Pennsylvania Rules of Evidence governs the circumstances when a court may take judicial notice of an adjudicative fact. “Judicial notice is intended to avoid the formal introduction of evidence in limited circumstances where the fact sought to be proved is so well known that evidence in support thereof is unnecessary.” Commonwealth v. Kearney, 225 A.3d 590, 595 n.2 (Pa.Super. 2019) (cleaned up). “However, the facts must be of a matter of common knowledge and derived from reliable sources whose accuracy cannot reasonably be questioned.” Id. (cleaned up).
A court may take judicial notice of uncontested notations on its own docket and in the record of the case before it. See, e.g., Commonwealth v. Bond, 532 A.2d 339, 343 (Pa. 1987). However, judicial notice may not be used to import the record of one case into another. As our High Court explained:
A court is bound to decide the case before it based upon the evidence presented to it by the parties; it has no authority to seek out additional testimony in the records of unrelated cases on the matters at issue before it. . . . [A] court may not ordinarily take judicial notice in one case of the records in another case even though the case arose in the same court and the contents of those records are known to the court. A fortiori, a court may not base a decision upon evidence of record in another unrelated case.
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Commonwealth v. DePasquale, 501 A.2d 626, 630n. 4 (Pa. 1985) (cleaned up). See also Richner v. McCance, 13 A.3d 950, 957 n.2 (Pa.Super. 2011) (noting the lack of this Court’s authority to take judicial notice of a stay order entered in another case); Styers v. Bedford Grange Mut. Ins. Co., 900 A.2d 895, 899 (Pa.Super. 2006) (holding trial court erred in basing preliminary objection ruling upon taking judicial notice of a criminal action against the plaintiff).
Thus, the trial court properly refrained from considering the factual contents of pleadings in Appellee’s federal drug case in ruling on her habeas motion in the instant case, and we do likewise.6 Consequently, the only evidence of a connection between Appellee and Christian supported by the record is the statement of Christian’s girlfriend, Banks, that Christian feared Appellee would reveal that McLean and Christian were the perpetrators of Victim’s murder.
Absent any evidence that Appellee had knowledge of Victim’s murder ahead of time, or that she was part of a conspiratorial drug operation with McLean and Christian, the evidence and reasonable inferences therefrom,
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6 The Commonwealth represents that it has suggested facts taken from a motion filed by Appellee in the federal case. See Commonwealth’s brief at 10 n.1. Since the Commonwealth did not proffer that document at the pretrial motions hearing, we have no cause or basis to consider whether it constituted or contained admissible evidence. The Commonwealth is free to attempt to offer the pleadings or other evidence of the facts contained therein at a new preliminary hearing if it refiles the charges against Appellee as the trial court invited it to do.
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viewed in the light most favorable to the Commonwealth, establish that Appellee’s intimate partner McLean murdered Victim in retaliation for McLean’s robbery and kidnapping, using a gun containing ammunition that Appellee handled at an undetermined time before the shooting;7 she had knowledge of McLean’s participation in the murder after the fact; and she helped McLean avoid apprehension for the homicide.
We are constrained to agree with the trial court that these facts do not establish a prima facie case that Appellee conspired with McLean and Christian to kill Victim, or that she is culpable for the homicide as an accomplice. The Commonwealth’s evidence allows one to surmise that Appellee helped plan the homicide. However, arriving at the conclusion that Appellee aided or agreed to aid McLean and Christian in shooting Victim, or in the planning of the killing, requires mental leaps slightly too protracted to be deemed logical inferences rather than mere supposition. Cf. Commonwealth v. Barnes, 871 A.2d 812, 821 (Pa.Super. 2005), aff'd on other grounds, 924 A.2d 1202 (Pa. 2007) (explaining that co-conspirator in agreement to engage in illicit
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7 In allowing the inference that Appellee manipulated the ammunition, the trial
court incorrectly indicated that Appellee’s fingerprints were recovered from the casings. It was instead her DNA from an unknown source. While we nonetheless deem Appellee to have handled the ammunition in giving the Commonwealth the benefit of all reasonable inferences, we decline to accept that the presence of her DNA necessarily reflects her having loaded the gun or otherwise handles the bullets. As the DNA sample contained a mixture of DNA from Appellee and McLean, it is plausible that McLean loaded the weapon while having his intimate partner’s DNA on his hands.
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drug sales was liable for murder for which he was merely present that was committed in furtherance of the continuing drug conspiracy).
Therefore, we affirm the order dismissing all charges against Appellee without prejudice for the Commonwealth to refile and proffer additional evidence beyond that offered against her at the hearings in the instant action to establish a prima facie case of her culpability for Victim’s homicide.
Order affirmed.
DATE: 08/25/2026