Com. v. Thomas, J.

Superior Court of Pennsylvania

Com. v. Thomas, J.

DecidedMarch 4, 2025

Docket2625 EDA 2023

StatusUnpublished

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Bluebook

Com. v. Thomas, J., (Pa. Ct. App. 2025).

Pincite

Opinion

J-A24036-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellant : : : v. : : : JONATHAN THOMAS : No. 2625 EDA 2023

Appeal from the Order Entered September 13, 2023 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): MC-51-CR-0011469-2022

BEFORE: LAZARUS, P.J., KING, J., and LANE, J.

MEMORANDUM BY LANE, J.: FILED MARCH 4, 2025

The Commonwealth of Pennsylvania (“Commonwealth”) appeals from

the order denying its motion to refile charges against Jonathan Thomas

(“Thomas”). After careful review, we reverse and remand.

The relevant factual and procedural history underlying this appeal is as

follows. The charges against Thomas arose from an incident that occurred on

July 8, 2022, when he attempted to have sexual intercourse with the victim,

Stephanie Foster (“Foster”), without her consent. Philadelphia Police arrested

Thomas and charged him with robbery, theft, indecent exposure, and indecent

assault.1 Prior to the preliminary hearing, the Commonwealth amended the

charges to include attempted rape, attempted sexual assault, unlawful

____________________________________________

1 See 18 Pa.C.S.A. §§ 3701, 3921, 3127, 3126. J-A24036-24

restraint, and false imprisonment.2 At the preliminary hearing, the

Commonwealth called Foster to testify. The trial court summarized her

testimony as follows:

On the date of the incident, Foster was a program manager at a recovery house where Thomas was a resident. Foster had worked with Thomas prior to that day and on July 8, 2022, he arrived unexpectedly to see her in her office. He entered her office, sat down across from her and shut the door. She began to inquire as to the reason for his visit and reviewed information relating to an anger management program in which Thomas was involved. She retrieved information on her computer and Thomas asked if he could look at it[,] so Foster invited him to come around her desk to share her computer screen with him.

He walked around the desk, looked at the computer screen briefly and placed his hand on her thigh between her knee and hip for a second. Foster immediately stood up, pushed his hand off, and told him that this was completely inappropriate. She advised him that he had to leave and reached for her purse to get her phone. When she turned around to face him, Thomas was standing at the end of her desk with his penis exposed and his genitals outside his pants. A second or more later, he pushed Foster against the wall[,] and she felt pressure on her upper chest, lower neck and collarbone area.

Trial Court Opinion, 12/22/23, at 2-3 (paragraph break inserted).

Foster further testified that she struggled to fight Thomas off, but he

held her arms and placed his arm against her upper chest, pinning her to the

wall with such force that she still felt pain in her chest hours later. See N.T.,

4/19/23, at 10-12. Foster could not see Thomas’s penis while he pinned her

up against the wall, but she “felt it.” Id. at 11. She was able to get one of

2 See 18 Pa.C.S.A. §§ 3121, 3124.1, 2902, 2903.

-2- J-A24036-24

her hands free and grab her cell phone, but Thomas grabbed it from her and

threw it out of her reach. See id. at 12. Foster continued to fight Thomas off

her as he held her against the wall. See id. At some point, Foster was able

to press a button on her office phone, which was on her desk. See id. at 12.

The phone “beeped,” and Thomas left her office and the facility. Id. at 12-

13.

Following the preliminary hearing, the municipal court dismissed the

charges for attempted rape, attempted sexual assault, robbery, theft, and

receipt of stolen property for lack of evidence, and held Thomas on the charges

of indecent exposure, indecent assault, unlawful restraint, and false

imprisonment. The Commonwealth filed a motion to refile the attempted rape

and attempted sexual assault charges in common pleas court. The trial court

conducted a refile hearing at which the Commonwealth introduced the notes

of testimony from the preliminary hearing. On September 13, 2023, the trial

court entered an order denying the motion to refile based on the court’s

determination that the Commonwealth failed to meet its burden of

establishing a prima facie case for attempted rape and attempted sexual

assault. The Commonwealth filed a timely notice of appeal, and both the

Commonwealth and the trial court complied with Pa.R.A.P. 1925.

The Commonwealth raises the following issue for our review: “Did

sufficient evidence support a prima facie case of attempted rape and

attempted sexual assault, where it showed that [Thomas] intended to rape

-3- J-A24036-24

and sexually assault the victim and that he took a substantial step towards

the commission of those crimes?” Commonwealth’s Brief at 6.

Whether the Commonwealth met its burden of presenting a prima facie

case presents a question of law. See Commonwealth v. Wroten, 257 A.3d

734, 742 (Pa. Super. 2021). Accordingly, our standard of review is de novo,

and our scope plenary. See id.

At the preliminary hearing stage of a criminal prosecution, the

Commonwealth’s burden is not to prove a defendant’s guilt beyond a

reasonable doubt; rather, it is merely to put forth a prima facie case of the

defendant’s guilt.” Commonwealth v. Huggins, 836 A.2d 862, 866 (Pa.

2003). The Commonwealth carries its burden of showing a prima facie case

when it “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.” Id. (citation omitted). The court at the preliminary

hearing must determine whether there is prima facie evidence “that (1) an

offense has been committed and (2) the defendant has committed it.”

Pa.R.Crim.P. 542(D). In making this determination, the court must consider

the evidence in the light most favorable to the Commonwealth’s case and

make all inferences reasonably drawn from the evidence of record in the

Commonwealth’s favor. See Commonwealth v. Perez, 249 A.3d 1092,

1102 (Pa. 2021).

-4- J-A24036-24

A person commits the offense of sexual assault “when that person

engages in sexual intercourse or deviate sexual intercourse with a complainant

without the complainant’s consent.” 18 Pa.C.S.A. § 3124.1. A person

commits the offense of rape when he “engages in sexual intercourse with a

complainant . . . [b]y forcible compulsion.” 18 Pa.C.S.A. § 3121(a)(1).

Forcible compulsion is defined as “[c]ompulsion by use of physical, intellectual,

moral, emotional or psychological force, either express or implied.” 18

Pa.C.S.A § 3101. “A person commits an attempt when, with intent to commit

a specific crime, he does any act which constitutes a substantial step toward

the commission of that crime.” 18 Pa.C.S.A. § 901(a); see also

Commonwealth v. Henley, 474 A.2d 1115, 1118 (Pa. 1984) (explaining that

the two elements of the offense of attempt required by the crimes code are

“that the actor intend to commit an offense; and . . . that the actor take a

substantial step toward completion of the offense”).

The Commonwealth argues that there was sufficient evidence to

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