Commonwealth v. Weigle

949 A.2d 899, 2008 Pa. Super. 69, 2008 Pa. Super. LEXIS 583, 2008 WL 1759256
CourtSuperior Court of Pennsylvania
DecidedApril 18, 2008
Docket119 EDA 2007
StatusPublished
Cited by13 cases

This text of 949 A.2d 899 (Commonwealth v. Weigle) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Weigle, 949 A.2d 899, 2008 Pa. Super. 69, 2008 Pa. Super. LEXIS 583, 2008 WL 1759256 (Pa. Ct. App. 2008).

Opinions

OPINION BY

ORIE MELVIN, J.:

¶ 1 This is a Commonwealth appeal from the Order granting a motion to quash robbery charges that were included in informations filed following a preliminary hearing wherein the robbery charges were previously discharged against Appel-lee, Justin Weigle, for failure to establish a prima facie case. The question presented by this appeal concerns whether or not robbery is a separate non-cognate offense to the crimes held over at the preliminary hearing. We find that it is and, therefore, affirm.

¶2 The facts and procedural history may be summarized as follows. On September 27, 2005, Ben Pontarelli, a loss-prevention agent employed by Walmart at its Franklin Mills Mall location in Philadelphia, observed Appellee use a box cutter to cut open a box containing a desktop computer and remove the connecting cables and the software bundle. Appellee placed the monitor cord in his pocket and walked away, carrying the software bundle under his arm. Once in the furniture department, Appellee rifled through the software bundle and put the Microsoft XP system recovery disc in his pocket, leaving the other software behind. Appellee then exited the store.

¶ 3 Mr. Pontarelli notified the assistant store manager, Deborah Evans, and together they confronted Appellee outside the store, approximately 15 to 20 feet from the exit. When they asked him to return [901]*901to the store, Appellee initially acted as if he would cooperate and then suddenly elbowed Mr. Pontarelli in the chest. Mr. Pontarelli reacted by grabbing Appellee’s arm, and, in the ensuing altercation, Ap-pellee produced a gun and pointed it at Ms. Evans’ face. She yelled, “gun, gun,” and Mr. Pontarelli released his grasp upon Appellee, who promptly fled. Mr. Pontar-elli summoned the police, while other security personnel maintained surveillance of Appellee. Appellee was apprehended a short time later, and the police recovered a loaded semiautomatic handgun from his person. The items taken from the store were discarded but subsequently recovered and returned to Mr. Pontarelli, who identified them as the stolen items.

¶ 4 Appellee was charged by two separate criminal complaints with one count of retail theft, one count of theft, one count of receiving stolen property (RSP), and two counts of each of the following crimes: robbery, aggravated assault, simple assault, terrorists threats, recklessly endangering another person (REAP), possession of an instrument of crime (PIC) and violations of the uniform firearms act (VUFA). On December 6, 2005, a preliminary hearing was held before Municipal Court Judge Robert S. Blasi. At that time the Commonwealth stipulated that Appellee had a valid permit to carry a gun; therefore, the VUFA charges were withdrawn. Following the hearing, the court discharged the robbery counts for failure to establish a prima facie case.

¶ 5 The Commonwealth subsequently re-arrested Appellee and re-filed the original charges pursuant to Philadelphia County Local Criminal Rule 500(H), which provides that, in such circumstances, the preliminary hearing following re-arrest is to be conducted by the judge assigned to the Common Pleas Motions Court. Consequently, on June 8, 2006, a preliminary hearing was held before the Honorable Joan A. Brown of the Common Pleas Motions Court, sitting as the issuing authority. Following the hearing, Judge Brown determined that a prima facie case was established only as to the counts of aggravated assault, retail theft, PIC, REAP and simple assault. The VUFA charges were again withdrawn by stipulation, and the robbery, theft, terroristic threats and RSP counts were discharged. Instead of appealing1 Judge Brown’s ruling, the Commonwealth subsequently filed criminal informations against Appellee for all the offenses held for court as well as all of the offenses that were discharged by Judge Brown.

¶ 6 On July 5, 2006, Appellee filed a Motion to Quash asserting that the information “charging [Appellee] with Robbery was prepared in violation of the law as the charge was dismissed by Judge Brown.” Certified Record at D-l.2 Following argument before the Honorable Pamela Dem-[902]*902be, the robbery counts were again dismissed. This appeal followed, wherein the Commonwealth certified in the notice of appeal, pursuant to Pa.R.A.P. 311(d), 42 Pa.C.S.A., that the order substantially handicapped the prosecution.

¶ 7 The Commonwealth presents the following question for our review:

Did the [trial] court err in dismissing robbery charges that were properly filed by the Commonwealth and for which the evidence of record was legally sufficient to establish a prima facie case?

Commonwealth’s brief, at 3.

The decision to grant a motion to quash a criminal information or indictment “is within the sound discretion of the trial judge and will be reversed on appeal only where there has been a clear abuse of discretion.” Commonwealth v. Brown, 423 Pa.Super. 264, 620 A.2d 1213, 1214 (Pa.Super.1993) (quoting Commonwealth v. Niemetz, 282 Pa.Super. 431, 422 A.2d 1369, 1373 (Pa.Super.1980)). Discretion is abused when the course pursued by the trial court represents not merely an error of judgment, but where the judgment is manifestly unreasonable or where the law is not applied or where the record shows that the action is a result of partiality, prejudice, bias or ill will. Commonwealth v. Smith, 545 Pa. 487, [491,] 681 A.2d 1288, 1290 (Pa.1996).

Commonwealth v. Lebron, 765 A.2d 293, 294-295 (Pa.Super.2000), appeal denied, 567 Pa. 722, 786 A.2d 986 (2001).

¶ 8 The Commonwealth asserts that it was entitled to re-file the robbery charges that were dismissed following the preliminary hearing because robbery constituted a cognate offense to the other offenses for which the issuing authority had found a prima facie case.3 The Commonwealth relies upon Commonwealth ex rel. Tanner v. Ashe, 365 Pa. 419, 76 A.2d 210 (1950), to support its position.

¶ 9 In Ashe, following a coroner’s inquest it was recommended that the defendant be held over for action by the grand jury on the charge of manslaughter. The District Attorney, however, prepared a bill of indictment charging murder and manslaughter. The defendant filed a writ of habeas corpus on the ground that he had been indicted on a crime different from that for which he had been held over to await action of the grand jury. The trial court refused the writ, and the defendant was subsequently convicted of first degree murder. On direct appeal to our Supreme Court his judgment of sentence was affirmed. The Supreme Court noted that “[i]t is established law that, when a prosecuting officer is satisfied from his investigations that a higher grade of offense, cognate to the one returned by the committing magistrate, is properly chargeable against a defendant, he may draw the bill accordingly....” Id. at 421, 76 A.2d at 211 (quoting Maginnis’ Case, 269 Pa. 186, 195, 112 A. 555, 558 (1921)).

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Cite This Page — Counsel Stack

Bluebook (online)
949 A.2d 899, 2008 Pa. Super. 69, 2008 Pa. Super. LEXIS 583, 2008 WL 1759256, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-weigle-pasuperct-2008.