Judges Opinions, — February 13, 2019 10:00 — 0 Comments

Commonwealth vs. Neubert No. CP-38-CR-0002178-2017

Criminal Action-Law-Domestic Violence-Simple Assault-Strangulation-Uncooperative Victim-Writ of Habeas Corpus-Preliminary Hearing-Rules of Evidence-Prima Facie Case

Defendant, who was charged with offenses including Strangulation and Simple Assault relating to an alleged assault of his girlfriend, filed a Motion for Writ of Habeas Corpus after the victim recanted a statement provided and failed to cooperate in the prosecution of the case. 

1.  In assessing whether a defendant is entitled to Habeas Corpus relief, the court must ascertain whether the Commonwealth has established a prima facie case.
2.  The term “prima facie case” has been defined as proof that a crime was committed and a probability that the defendant can be connected with the crime.
3.  In light of the narrow purposes of a preliminary hearing, application of the Rules of Evidence is relaxed.
4.  A witness may be called by a defendant at a preliminary hearing only to negate the existence of a prima facie case.
5.  A prima facie case was presented with regard to the Simple Assault charge, as evidence was presented that the victim appeared crying and shaken up when a police officer arrived at the scene, the victim stated to the police officer that she had been assaulted by Defendant, a neighbor testified that she had heard a female voice telling Defendant to get off her and the argument escalated until the neighbor heard a loud thump and the neighbor had made a recording of the incident.
6.  The Commonwealth failed to establish a prima facie case to support the charge of Strangulation, as the record is devoid of any evidence or information that the victim’s breathing or circulation of blood was impeded by Defendant as required by Title 18 Pa.C.S. § 2718(A)(1) despite the fact that the police officer testified that the victim had reported that Defendant had placed his forearm across her chest and neck area and the victim exhibited reddening of her neck.
L.C.C.C.P. No. CP-38-CR-0002178-2017, Opinion by Bradford H. Charles, Judge, May 30, 2018.
IN THE COURT OF COMMON PLEAS LEBANON COUNTY
PENNSYLVANIA
CRIMINAL DIVISION NO. CP-38-CR-2178-2017
COMMONWEALTH OF PENNSYLVANIA
VS
JONATHAN NEUBERT    
ORDER OF COURT
AND NOW, this 30th day of May, 2018, in accordance with the attached Opinion, upon consideration of the Motion for Writ of Habeas Corpus filed by the DEFENDANT, and in accordance with the attached Opinion, the Order of this Court is as follows:
1. The DEFENDANT’s Motion for Writ of Habeas Corpus pertaining to the crime of Strangulation is granted.  Count 1 of the complaint is dismissed.
2. The DEFENDANT’s Motion for Writ of Habeas Corpus as to the crime of Simple Assault is denied.  This case will proceed to trial on Count 2.
3. To the extent that the DEFENDANT seeks to pursue a Motion for Writ of Habeas Corpus regarding the Summary Harassment offense, said Motion is denied.
4. A final decision regarding admissibility of the tape recording of events on November 16, 2017 made from the other side of the duplex where the alleged criminal event occurred will be deferred until the time of trial.
   BY THE COURT:

BRADFORD H. CHARLES, J.
APPEARANCES
Robert Harding Esquire       For Commonwealth of Pennsylvania
DISTRICT ATTORNEY’S OFFICE       

Elliott Katz, Esquire           For Jonathan Neubert
PUBLIC DEFENDER’S OFFICE
OPINION BY CHARLES, J., May 30, 2018
The alleged victim in the above-referenced case has recanted a prior statement she provided to police and is no longer cooperating with the District Attorney’s Office.  Because of this, the DEFENDANT has filed a Motion for Writ of Habeas Corpus seeking to obtain dismissal of charges that he assaulted the alleged victim.  The Commonwealth asserts that even without testimony from the victim, enough evidence exists to establish a prima facie case against the DEFENDANT.  Because we agree with the Commonwealth as it relates to the charge of Simple Assault, we will deny the DEFENDANT’s Motion for Writ of Habeas Corpus.  Because we agree with the DEFENDANT as it pertains to the crime of Strangulation, we will dismiss Count 1 of the Information.
I.     FACTS
A Preliminary Hearing was conducted before Magisterial District Judge Carl Garver on November 30, 2017.  A transcript of that Preliminary Hearing was provided to the Court.  On February 15, 2018, the DEFENDANT filed a Petition for Habeas Corpus Relief challenging the existence of a prima facie case against him.  We conducted a hearing on March 28, 2018 and received additional evidence.  The Preliminary Hearing transcript and the additional testimony we received revealed the following.
On November 16, 2017, Sarah Bailey lived at 33 East Cherry Street, in the Borough of Palmyra.  The structure occupied by Ms. Bailey was a duplex house that shared a common wall with another residence.  That residence was occupied in part by Lori Cuddy.
At about 9:40 pm on November 16, 2017, Ms. Bailey began to hear loud voices from the other side of her duplex home.  This was not the first time that Ms. Bailey heard arguments from the other side of the duplex.  Because she heard what she perceived to be “fear” in the voice of a female, she began to record what was occurring.  This decision to record events was spontaneous.  It was not solicited by police.  While making the recording, Ms. Bailey never left her side of the duplex.
Ms. Bailey testified about loud, angry voices from both a male and a female.  She described the voices as escalating and becoming “more threatening”.  At one point, a female screamed: “I hate you, Jonathan.  Jonathan.  Get off me.”  The argument culminated with a loud thumping sound.
Ms. Bailey called police.  Officer Shaun McGuire of the Palmyra Police Department arrived.  After speaking briefly with Ms. Bailey, Officer McGuire knocked on the door of the duplex from which the loud sounds had emanated.  Officer McGuire met Jaylyn Rosado.  Ms. Rosado directed Officer McGuire to the attic, where he encountered Lori Cuddy.  Officer McGuire testified that Ms. Cuddy was crying and “shaken up”.  She had red marks on her neck.  While in this distraught state of mind, Ms. Cuddy told Officer McGuire that the DEFENDANT had assaulted her.  By the time Officer McGuire arrived, the DEFENDANT had left the premises.
Police charged DEFENDANT with Simple Assault.  The complaint was later amended to include a charge of Strangulation.  At the Preliminary Hearing on these charges, Lori Cuddy testified as a witness for the DEFENDANT.  She described herself as the DEFENDANT’s girlfriend.  She denied the assault occurred.  She stated that what Ms. Bailey heard through the common wall of the duplex was the sound of “rough sex”.
Based upon the above information, Magisterial District Judge Garver stated: “Despite the fact that it appears we have an uncooperative victim here, I am going to bind all charges over to Criminal Court.” (N.T. 21).  The question presented to this Court today is identical to the one presented to MDJ Garver: Does a prima facie case exist against the DEFENDANT given that the victim now claims that no crime occurred?  We issue this Opinion to address that question.
II.     DISCUSSION
In assessing whether a DEFENDANT is entitled to Habeas Corpus Relief, we must ascertain whether the Commonwealth has established a prima facie case.  Commonwealth v. Morman, 541 A.2d 356 (Pa. Super. 1988), citing Commonwealth v. Hetherington, 331 A.2d 205 (Pa. 1975); Commonwealth v. Keller, 823 A.2d 1004 (Pa. Super. 2003).  The standard for pre-trial Habeas Corpus Relief is effectively identical to the one governing Preliminary Hearings.  Our Appellate Courts have long recognized that the sole purpose of a Preliminary Hearing is to determine whether the Commonwealth can establish a prima facie case against the accused.  See, Commonwealth v. Smith, 334 A.2d 741 (Pa. Super. 1975).
Neither a Habeas Corpus Petition nor a Preliminary Hearing can be equated with a trial.  Commonwealth v. DeCosey, 371 A.2d 905, 907 (Pa. Super. 1977).  Commonwealth v. Smith, Supra.  The term “prima facie case” has been defined as proof that a crime was committed and that there is a “probability” that the DEFENDANT can be connected with the crime.  Commonwealth v. Jackson, 849 A.2d 1254, 1257 (Pa. Super. 2004).  Stated differently, a prima facie case is established when there is sufficient probable cause to warrant the belief that the accused committed the offense.  Commonwealth v. McBride, 595 A.2d 589 (Pa. 1991).  The evidence required to support this finding must be such that, if it were accepted as true, the Court would be justified in allowing a case to proceed to a jury.  Commonwealth v. Austin, 575 A.2d 141, 143 (Pa. Super. 1990).  As stated by our Superior Court:
“The question at a Preliminary Hearing is not whether there is sufficient evidence to prove the Defendant guilty beyond a reasonable doubt; rather, the question is whether the prosecution must be dismissed because there is nothing to indicate that the Defendant is connected with a crime.” Commonwealth v. Rick, 366 A.2d 302, 303-304 (Pa. Super. 1976).
Because of the narrow purpose of a Preliminary Hearing, the Rules of Evidence are “relaxed”.  See, Commonwealth v. Rick, Supra at Footnote 1; Commonwealth v. Loar, 399 A.2d 1110 (Pa. Super. 1979).  The key case emphasizing this point is Commonwealth v. Tyler, 587 A.2d 326 (Pa. Super. 1991).  In Tyler, the Superior Court described the function of a Preliminary Hearing as “limited”.  The Superior Court also emphasized that testing of credibility “is not an issue at a Preliminary Hearing.”  Id at page 329.  See also, Commonwealth v. Jackson, Supra.  The Court in Tyler even concluded that a Defendant’s right to call witnesses at a Preliminary Hearing can be limited.  The Court concluded that the Rules of Criminal Procedure do not afford a Defendant with carte blanche ability to call witnesses solely for the purpose of discovering what they would say or “tying them down” under oath.  Rather, witnesses can be called by a Defendant “only to negate the existence of a prima facie case…” Id at page 329, citing Pa.R.Crim.P. 141(official comment).
In this case, the Defendant was charged with Strangulation (F2), Simple Assault (M2) and Summary Harassment.  We will separately address the Strangulation and Simple Assault charges because our decision regarding those offenses will be different.
(1)  Simple Assault
The Commonwealth has charged the DEFENDANT with Simple Assault based upon the allegation that he caused or attempted to cause bodily injury to Lori Cuddy.  The DEFENDANT asserts that insufficient evidence exists to establish a prima facie case because Ms. Cuddy denied that any assault occurred.  With respect to the charge of Simple Assault, we disagree with the defense.
In this case, enough evidence was presented by the Commonwealth to establish a prima facie case.  The evidence would include the following:
• When Officer McGuire arrived at the scene, Lori Cuddy was crying, upset and “shaken up”.  While in this state, Ms. Cuddy told Officer McGuire that the DEFENDANT assaulted her. 1
• Sarah Bailey provided testimony that she heard an argument through the wall of her duplex.  During the argument, a female voice stated: “I hate you, Jonathan.  Jonathan.  Get off me.” (N.T. 7).
• Sarah Bailey testified that the argument she heard through the wall of the duplex escalated until she heard a loud “thump”.  (N.T. 6).
• Ms. Bailey made a recording of what she heard through the wall of the duplex.  That recording was submitted as an exhibit at the Writ of Habeas Corpus Hearing. 2
As Magisterial District Judge Garver noted, the victim in this case is now “uncooperative”.  As Magisterial District Judge Garver held, the fact that the victim was uncooperative does not compel us to rule in favor of the DEFENDANT.  So long as a prima facie case can be established through other competent evidence, this case should proceed to trial.  We agree with Judge Garver that enough evidence exists to establish a prima facie case that the DEFENDANT assaulted Lori Cuddy on November 16, 2017.  Therefore, we will deny the DEFENDANT’s Motion for Writ of Habeas Corpus as it relates to the charge of Simple Assault.
(2)  Strangulation
The DEFENDANT was charged with Strangulation under 18 Pa. CSA § 2718(A)(1).  That crime is defined as follows:
“(A) Offense Defined – A person commits the offense of Strangulation if the person knowingly or intentionally impedes the breathing or circulation of the blood of another person by:
(1)  Applying pressure to the throat or neck…”
In this case, as outlined above, there is enough evidence to establish a prima facie case that the DEFENDANT assaulted Lori Cuddy.  However, the record is devoid of any evidence or information that Ms. Cuddy’s breathing or circulation was impeded.  At the Preliminary Hearing, Officer McGuire described an excited utterance from Ms. Cuddy given at a time that she was distraught and “shaken up”.  Officer McGuire stated:
“She indicated that he had thrown her down and that he had placed his forearm across her chest/neck area because she had a red mark on her, in the area of her collarbone.  And there was reddening of her neck.  She had told me that he had placed his forearm across that area.” (N.T. 12).
At no time did Officer McGuire indicate that Ms. Cuddy claimed to have been “choked” or that her breathing had been impaired.  Moreover, the evidence presented by Sarah Bailey was circumstantial.  Ms. Bailey could not see through the wall of the duplex and could not indicate whether the noises she heard were reflective of strangulation or merely an assault.  Without any proof that Lori Cuddy’s breath was impeded, there is simply not enough evidence to establish a prima facie case for the crime of Strangulation.  Therefore, as it relates to Count 1, we will grant the DEFENDANT’s Motion for Writ of Habeas Corpus.
III.     CONCLUSION
We will send the above-referenced case to trial on the charge of Simple Assault.  However, we will grant the DEFENDANT’s Motion for Writ of Habeas Corpus relating to the charge of Strangulation because there is simply no evidence that Lori Cuddy’s breathing was impeded by the DEFENDANT.  As to the question of whether Ms. Bailey’s tape recording will be admitted in evidence before the jury, we have rendered a preliminary decision today in favor of its admissibility.  However, we will defer a final decision on that issue until trial.  An Order to accomplish all of the above will be entered today’s date.
1 The statement by Ms. Cuddy to Officer McGuire would be admissible as an excited utterance under Pa. R.Ev. 802(2).  See, Commonwealth v. Gore, 396 A.2d 1302 (Pa. Super. 1978).
2 Although we expect the DEFENDANT to object to this recording at the time of trial, we will admit it for purposes of the Writ of Habeas Corpus Hearing under the Rules of Law articulated in the case of Commonwealth v. Louden

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