Commonwealth v. Fazzolare

16 Pa. D. & C.5th 69
CourtPennsylvania Court of Common Pleas, Lawrence County
DecidedAugust 25, 2010
Docketno. 46 of 2010
StatusPublished

This text of 16 Pa. D. & C.5th 69 (Commonwealth v. Fazzolare) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Lawrence County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Fazzolare, 16 Pa. D. & C.5th 69 (Pa. Super. Ct. 2010).

Opinion

COX, J.,

Before the court for disposition is the omnibus pretrial motion filed on behalf of the defendant Robert John Fazzolare which consists of a motion for discovery, a petition for writ of habeas corpus, and a motion to suppress. The Commonwealth has supplied the requested materials to the defendant and the defendant is no longer contesting his motion for [71]*71discovery. In his petition for writ of habeas corpus, the defendant argues that the Commonwealth has failed to present sufficient evidence to prove that the defendant committed the offenses of recklessly endangering another person and simple assault. More specifically, the Commonwealth did not prove that the defendant placed the victim in danger of death or serious bodily injury or that the defendant inflicted bodily injury upon the victim. In addition, the defendant claims that the photographic lineup identification was unreliable and prejudicial because the area in which this incident occurred was dark and the photographic array was unduly suggestive; thus, evidence of that identification should be suppressed.

On November 7,2009, the victim Nicholas DiCarolis, a student at Westminster College, walked from his residence at the Sigma Phi Epsilon fraternity house, which is located at 440 South New Castle Street, New Wilmington, Lawrence County, Pennsylvania, to a party at the Theta Chi fraternity house. The victim was accompanied by Sarah Parish and Salvatore Reino, and they arrived at the Theta Chi fraternity house at approximately 11:30 p.m. The victim began speaking with Elisa Fazzolare, a fellow student at Westminster College, to whom he admittedly made several disparaging remarks. Soon thereafter, the defendant, Ms. Fazzolare’s brother, confronted the victim regarding the comments that were made to Ms. Fazzolare. At approximately 1 a.m., the victim, Ms. Parish, Mr. Reino and other members of the Sigma Phi Epsilon fraternity left the Theta Chi fraternity house and began walking back to the Sigma Phi Epsilon fraternity house. As they approached the house, they heard a voice exclaim, “You can’t talk to my sister like that,” and someone punched the victim in the nose. The force of [72]*72the blow caused the victim to fall to the ground and he began bleeding profusely. Mr. Reino, who witnessed the incident, explained that a white male, who was approximately six feet in height and weighed between 185 and 200 pounds, struck the victim in the face. Additionally, Mr. Reino recalled having a verbal altercation with another white male, stated that he was a marine.

The victim was disoriented, but saw a group of white males running through the Westminster College physical plant area towards campus. Subsequently, the victim was escorted to the Sigma Phi Epsilon fraternity house where the police were called. Officer Randall Russo of the New Wilmington Police Department received the call to investigate an alleged assault that occurred near the Sigma Phi Epsilon fraternity house. Once Officer Russo arrived, he observed the victim in the kitchen surrounded by other students. The officer quickly instructed everyone to exit the kitchen area and he called an ambulance for the victim, who was taken to Jameson Memorial Hospital and treated for a broken nose.

While interviewing students at the fraternity house, Officer Russo was informed by Rod Kennedy that he believed the victim was punched by the defendant. The officer determined that the defendant was residing at 305 Russell Hall on the Westminster College campus. Officer Russo went to Russell Hall and spoke with the defendant and his friend Andrew McFeaters. The defendant informed Officer Russo that he confronted the victim at the Theta Chi fraternity house, but denied any involvement in the later physical confrontation with the victim.

OnNovember 10,2009, at 11:33 p.m., Mr. Reino went to the New Wilmington Police Department police station [73]*73to review a photographic lineup, which was constructed by Officer Russo utilizing six pictures received from J-Net.1 Officer Russo indicated that the pictures were chosen because they were white males with similar characteristics to the defendant, Mr. Reino quickly chose photograph number three, which was a picture of the defendant. Moreover, Ms. Parish was asked to participate in a photographic identification, which she did on November 19, 2009, and she positively identified photograph number three as well.

As a result, the defendant was charged with simple assault2 and recklessly endangering another person.3 On March 22, 2010, the defendant filed this omnibus pretrial motion seeking dismissal of the charges of simple assault and recklessly endangering another person. The defendant also contends that the photographic lineup identifications should be suppressed.

Apetition for writ of habeas corpus is the proper means for testing a pretrial finding that the Commonwealth has sufficient evidence to establish a prima facie case. Commonwealth v. Karlson, 449 Pa. Super. 378, 674 A.2d 249 (1996). In evaluating an accused’s entitlement to pretrial habeas corpus relief, a trial court must determine whether there is sufficient evidence to make out á prima facie case that the defendant committed the crime with which he or she is charged. Commonwealth v. Hock, 556 Pa. 409, 728 A.2d 943 (1999). This does not mean that [74]*74the prosecution must prove the accused guilty beyond a reasonable doubt, but rather, the prosecution must establish “sufficient probable cause” that the accused has committed the offense. Commonwealth v. Prosdocimo, 331 Pa. Super. 51, 479 A.2d 1073 (1984).

The standard in determining whether a defendant is properly held for court is: (a) that the record reveals a prima facie showing that a crime or crimes has been committed; and (b) that the defendant was in some way legally responsible. Liciaga v. Court of Common Pleas of Lehigh County, 523 Pa. 258, 566 A.2d 246 (1989). 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. Commonwealth v. Marti, 779 A.2d 1177 (Pa. Super. 2001). The prima facie case merely requires evidence of the existence of each element of the crime charged. Id. at 1180. Additionally, the evidence is to be reviewed in a light most favorable to the Commonwealth and the Commonwealth is entitled to reasonable inferences drawn from the evidence. Id. The weight and credibility of the evidence is not a factor at this stage, the Commonwealth need only demonstrate sufficient probable cause to believe the person charged has committed the offense. Id.

First, the defendant contends the Commonwealth failed to establish a prima facie case that the defendant committed recklessly endangering another person. Reckless endangering another person occurs when the defendant “engages in conduct which places or may place another person in danger of death or serious bodily injury.” 18 Pa.C.S. §2705.

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Related

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728 A.2d 943 (Supreme Court of Pennsylvania, 1999)
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Commonwealth v. Taylor
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Commonwealth v. Marti
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Commonwealth v. Karlson
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Liciaga v. Court of Common Pleas
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Commonwealth v. Chmiel
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Commonwealth v. Caye
348 A.2d 136 (Supreme Court of Pennsylvania, 1975)
Commonwealth v. Wheeler
446 A.2d 892 (Supreme Court of Pennsylvania, 1982)
Commonwealth v. DeJesus
860 A.2d 102 (Supreme Court of Pennsylvania, 2004)
Commonwealth v. Alexander
383 A.2d 887 (Supreme Court of Pennsylvania, 1978)
Commonwealth v. Prosdocimo
479 A.2d 1073 (Supreme Court of Pennsylvania, 1984)

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Bluebook (online)
16 Pa. D. & C.5th 69, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-fazzolare-pactcompllawren-2010.