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HomeMy WebLinkAboutCP-21-CR-0003369-2012 COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : : CP-21-CR-3369-2012 : V. : CHARGES: (1) TERRORISTIC THREATS : (2) SIMPLE ASSAULT : (3) SIMPLE ASSAULT : (4) HARASSMENT JOHNATHAN JOHNSTON : (5) CRIMINAL MISCHIEF IN RE: DEFENDANT’S PETITION FOR WRIT OF HABEAS CORPUS MEMORANDUM OPINION AND ORDER OF COURT Masland, J., December 20, 2012:-- On December 4, 2012, Defendant filed the instant Petition for Writ of Habeas Corpus requesting an expedited hearing with respect to the above charges. The Defendant avers that the Commonwealth “failed to present prima facie evidence with regard to each and every charge” at the preliminary hearing 1 held before Magisterial District Judge Paula Correal on November 28, 2012. At the hearing on this Petition for Writ of Habeas Corpus, the lone witness, Patrolman Jason Groller, testified solely for the purpose of introducing the 2 transcript of the preliminary hearing. The court has thoroughly reviewed the six pages of testimony/argument 3 found in the Transcript of the preliminary hearing. Before discussing what evidence may be indicative of the Defendant’s guilt, we note that our 1 Petition for Writ of Habeas Corpus/Request for Expedited Hearing, December 4, 2012 at ¶ 4. 2 On the day of the hearing the Commonwealth filed a Motion to Compel Production of the Preliminary Hearing Recording claiming that defense counsel refused to provide a copy when requested to do so. Following a discussion in chambers, defense counsel agreed to supply the Commonwealth and the court with a copy of the transcript. 3 Commonwealth Exhibit 1, Transcript of Proceedings, Preliminary Hearing, November 28, 2012 (hereafter, Transcript page line ). CP-21-CR-3369-2012 determination is controlled by several principles of law. When the Commonwealth has failed to present a prima facie case against a defendant, the court may grant a motion to quash the information, or, in this case habeas corpus relief. Commonwealth v. Santos, 876 A.2d 360, 363 (Pa. 2005). In examining the sufficiency of the evidence, the court must determine that the Commonwealth has been “unable to establish a prima facie case” against the defendant. Commonwealth v. Meoli, 452 A.2d 1032, 1034 (Pa. Super. 1982). A prima facie case is established 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.” Commonwealth v. Santos, 876 A.2d 360, 363 (Pa. 2005) (citation omitted). In sum, we must determine whether the Commonwealth has adduced sufficient evidence to establish a prima facie case for each of the crimes charged. The focus of the Defendant’s argument is the Commonwealth’s use of a prior written statement by the victim to impeach the victim. The Defendant argues that the statement was not admissible because the victim never said he did not recall the events in question nor did he say he needed to read the statement in order to refresh his recollection. The Commonwealth argues that it was proper to use the statement to impeach the credibility of its own witness pursuant to Pa.R.E. 607. To be sure, Rule 607 abolished the common law prohibition against impeaching one’s own witness. Therefore, we do not take issue with the admission of the victim’s prior written statement. -2- CP-21-CR-3369-2012 Nevertheless, the Defendant argues that the use of the statement for impeachment purposes begs the question of what evidence remains following that impeachment? The Defendant says we have two mutually inconsistent versions of the event in question and therefore, pursuant to Commonwealth v. New, 47 A.2d 450 (Pa. 1946), we have nothing. The New court held that “when a party on whom rests the burden of proof in either a criminal or civil case, offers evidence consistent with two opposing propositions, he proves neither.” Id. at 468. Although this is true when the Commonwealth must prove guilt beyond a reasonable doubt, we are at a decidedly different stage of the proceedings here. At this preliminary stage, prior to arraignment, credibility is not at issue. However, when a witness is impeached, credibility is precisely what one attacks. Therefore, we have examined closely what the witness said at the preliminary hearing and to what extent the prior written statement alters the position. Although the present case is obviously a close one, the victim essentially accepted everything in his statement with the exception of the issue as to whether the Defendant had a weapon. Specifically, we note that the victim engaged in the following exchange with Magisterial District Judge Correal: DJ CORREAL: Okay. Did you write that? A: I wrote it. Q: You said you did. A: Yeah. Q: Okay. Well was it the truth? A: Um, I wouldn’t say all of it was, but, you know, when you mad, and you’re going through a situation and— Q: Well you gotta be careful now. You’re under oath and you don’t want to get yourself in a position where you’re gonna— A: Well it’s the truth. -3- CP-21-CR-3369-2012 Q: --be in trouble. A: It’s the truth. I just, I really can’t make out, it was at nighttime when we were out there. Q: So you think you could be mistaken about him having a weapon? A: Right. Right. Q: Do you think you’re mistaken about getting injured? A: Um, it happened real fast so I don’t, I don’t think he, he stabbed me a knife. Well he didn’t stab me with the knife. Like we can get it, we get a lot of cuts from where we work at in the job. Q: What do you do? A: We make lockers, steel lockers. 4 DJ CORREAL: All right. Okay. Anything else? Without going through the elements for each offense, based on our review of the transcript and in light of the minimal showing that the Commonwealth must make, we are satisfied that the Commonwealth presented a prima facie showing 5 with respect to Count 1 Terroristic Threats. However, we find that the Commonwealth failed to present sufficient evidence to set forth a prima facie 6 7 case regarding Count 2 Simple Assault and Count 3 Simple Assault. In light of the victim’s recantation of the Defendant’s use of a knife, with respect to these offenses there is insufficient evidence. To be sure, the evidence with respect to the other charges may not reach the required burden at trial. Nevertheless, it is not for the court, at this time, to play the role of the ultimate trier of fact. Nor, do we suggest what should happen with the remaining charges. But, based on our careful review of the evidence adduced at the hearing, we enter the following order: 4 Transcript, p. 3 line 34 – p. 4 line 9. 5 18 Pa.C.S. § 2706. 6 18 Pa.C.S. § 2701(a)(1) – attempting to cause or intentionally, knowingly or recklessly causing bodily injury. 7 18 Pa.C.S. § 2701(a)(3) – attempting by physical menace to put another in fear of imminent serious bodily injury. -4- CP-21-CR-3369-2012 ORDER OF COURT AND NOW, this day of December, 2012, upon consideration of GRANT Defendant’s Petition for Writ of Habeas Corpus, we said relief with respect to Count 2 Simple Assault (18 Pa. C.S. § 2701(a)(1)), and Count 3 Simple Assault (18 Pa.C.S. § 2701(a)(3)). With respect to all other charges, the DENIED. Motion is By the Court, Albert H. Masland, J. Richard H. Bradbury, Jr., Esquire Assistant District Attorney Linda Hollinger, Esquire For the Defendant :sal -5- COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : : CP-21-CR-3369-2012 : V. : CHARGES: (1) TERRORISTIC THREATS : (2) SIMPLE ASSAULT : (3) SIMPLE ASSAULT : (4) HARASSMENT JOHNATHAN JOHNSTON : (5) CRIMINAL MISCHIEF ORDER OF COURT AND NOW, this day of December, 2012, upon consideration of GRANT Defendant’s Petition for Writ of Habeas Corpus, we said relief with respect to Count 2 Simple Assault (18 Pa. C.S. § 2701(a)(1)), and Count 3 Simple Assault (18 Pa.C.S. § 2701(a)(3)). With respect to all other charges, the DENIED. Motion is By the Court, Albert H. Masland, J. Richard H. Bradbury, Jr., Esquire Assistant District Attorney Linda Hollinger, Esquire For the Defendant :sal