COMMONWEALTH OF PENNSYLVANIA v. CHARLES WROTEN
No. 3167 EDA 2018
IN THE SUPERIOR COURT OF PENNSYLVANIA
FILED JUNE 17, 2021
2021 PA Super 124
Appeal from the Order Entered October 2, 2018 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): MC-51-CR-0013240-2018
BEFORE: PANELLA, P.J., OLSON, J., and COLINS, J.*
The Commonwealth appeals from the order entered in the Court of Common Pleas of Philadelphia County (trial court) dismissing the refiled charges of simple assault, official oppression, and harassment1 against Appellee, Charles Wroten. We reverse the trial court‘s order and remand for trial.
This matter relates to a February 15, 2018 incident that occurred at 30th Street Station in Philadelphia involving Appellee, an on-duty, uniformed officer with the Amtrak Police Department, and Darrin Rogers, a train commuter at the station. At approximately 4:15 a.m. on the date in question, Appellee entered one of the men‘s bathrooms at the station and ordered everyone present to exit so that cleaning staff could clean the bathroom. Rogers was one of the individuals in the bathroom at this time. The Commonwealth alleges that, after escorting Rogers out of the bathroom, Appellee pushed Rogers into a corner, punched him in the face, and then told him never to return to the station.
At the July 26, 2018 preliminary hearing in the Philadelphia Municipal Court, Rogers testified that he entered a bathroom stall at the station prior to catching his 4:47 a.m. train to Jenkintown when he heard someone say that the bathroom was
Appellee then led Rogers out of the bathroom, took him down the hallway, and pushed him through a door. Id. at 8. At that point, according to Rogers, Appellee “threw me against the wall and he punched me in my mouth. And I hit my head against the wall when he did it.” Id. Rogers stated that he had a “busted lip” and was bleeding from his mouth and his head was hurting for the rest of the day from the impact with the wall. Id. at 10, 19.
Rogers stated that, once Appellee told him he was under arrest, he kept quiet and did not say anything further. Id. at 9. Following the punch, Appellee did not place Rogers into custody but instead:
He pushed me out the door and told me to get the F out the station. I said I got to catch the train, my train to go to work. He said go fucking downtown to catch the train from now on; if I catch you in here, I‘m going to lock you up.
Id. at 9-10. After he was thrown out of the station, Rogers waited to calm down, then called his wife and asked her to come to 30th Street Station to be with him while he filed a complaint. Id. at 10.
Surveillance video footage from cameras in the station was played at the preliminary hearing during Rogers’ testimony. Id. at 7-8. At the conclusion of the hearing, the municipal court dismissed all of the charges against Appellee. Id. at 22.
On August 2, 2018, the Commonwealth filed a notice that it was refiling the charges in the trial court. The trial court held a hearing on October 2, 2018, at which the Commonwealth presented the notes of testimony from the preliminary hearing, as well as the surveillance video shown at the prior hearing. In addition, the Commonwealth presented the testimony of Sergeant McKenna of the Amtrak Police Department, who was Appellee‘s supervisor at the time of the incident. Sergeant McKenna testified in relevant part that he had reviewed the surveillance video of the incident and he would characterize it as “[l]evel two . . . [d]isruptive behavior” under the Amtrak Police Department‘s use-of-force guidelines. N.T., 10/2/18, at 6-7. Sergeant McKenna stated that in cases where an officer uses force, the officer is required to fill out a written use-of-force form as soon as possible explaining his or her reasoning for using the force. Id. at 7-8. Sergeant McKenna stated that Appellee did not complete the form as he was required to do and that the force used in this incident was not consistent with Amtrak policy. Id. at 8-9.
Following the hearing, the trial court entered an order denying the Commonwealth‘s notice to refile and dismissed the charges. In assessing the evidence presented by the Commonwealth, the trial court found that Rogers’ testimony was at times contradictory and that the surveillance video “did not provide the full picture [of what happened] and had no audio.” Trial Court Opinion, 3/2/20, at 4. The court further noted that the Commonwealth did not present evidence that Appellee “had a trait or habit of using force resulting in complaints” or that he acted outside of his duty as a police officer. Id. The court thus concluded that it was “unable
The Commonwealth raises the following issue for our review:
Did the lower court err in denying the Commonwealth‘s motion to refile simple assault, official oppression, and harassment charges against [Appellee] based on improper deference to the municipal court judge‘s decision and explicit weight and credibility determinations where the evidence, when viewed in the proper light and accepted as true, proved a prima facie case that [Appellee] committed these crimes.
Commonwealth‘s Brief at 4.
Prior to reaching the Commonwealth‘s appellate arguments, we must first address the claim by Appellee that the certified record lacks competent evidence that would have established a prima facie case as to the three charges. Appellee asserts that while the transcript of the Municipal Court preliminary hearing and the 30th Street Station surveillance video were marked by the Commonwealth‘s attorney at the refile hearing before the trial court, neither were moved into evidence. Therefore, Appellee argues that the notes of Rogers’ testimony and the video were not properly before the trial court nor are they before this Court on appeal. In addition, Appellee avers that the trial court could not consider the notes of testimony as it was hearsay evidence and the Commonwealth did not show that Rogers was unavailable at the refile hearing as required to admit former testimony under Rule of Evidence 804. See
At the beginning of the refile hearing in the trial court, the following exchange took place:
[Assistant District Attorney (“ADA“)]: . . . with the Court‘s permission?
THE COURT: Yes.
[ADA]: I filed a motion, refiled this motion, sent Your Honor a copy of the notes and the video that was shown in the [Municipal Court] courtroom. I‘d
just ask that they be -- I know Your Honor‘s seen the notes, read the notes and seen the video. So I just ask that they be marked C-1 and C-2. THE COURT: All right. You want C-1 for the notes?
[ADA]: And C-2 for the video.
THE COURT: Okay. C-1 is going to be the notes of testimony, that‘s 7/26/18. And C-2 will be the video.
[ADA]: Which is two short video clips --
THE COURT: Okay. And then we --
[ADA]: Which [defense counsel] has seen and I sent a copy.
N.T., 10/2/18, at 3-4.
When hearing argument at the refile hearing on whether the charges against Appellee should be reinstated, the trial court directed counsel to “just focus on what we have that supports or doesn‘t support the fact that [the charges were] discharged” in the Municipal Court. Id. at 15. The ADA and defense counsel then each referenced Rogers’ preliminary hearing testimony and the contents of the surveillance video in support of their respective positions. Id. at 18-23. In its
While the ADA did not specifically move the preliminary hearing notes of testimony and surveillance video into evidence, we do not deem this omission as necessitating the exclusion of this evidence from the record. It is apparent from the trial court‘s statements at the hearing that it accepted these items into evidence and considered them to be part of the record for the purpose of its analysis. We note that, while Appellee now claims that these documents are dehors the record, his counsel explicitly relied upon them at the refile hearing to argue that the Commonwealth had not met its burden of establishing a prima facie case. Moreover, at no point during the refile hearing did defense counsel lodge an objection to the surveillance video or notes of testimony, state that he had not had an opportunity to review these items, or argue to the trial court that it could not base its decision on this evidence because they were not part of the record. In making the determination that these items are part of the certified record in this appeal, we are mindful of the relaxed rules of evidence attendant to preliminary hearings and other pretrial criminal proceedings. See
Furthermore, we disagree with Appellee that Rogers’ testimony cannot support a prima facie determination based on the fact that it was not admitted under a hearsay exception. It is well-established that where the Commonwealth seeks to establish a prima facie case against the accused after charges were dismissed at the preliminary hearing, the Commonwealth may proceed “with the same evidence presented at the first hearing or with additional evidence.” Commonwealth v. Carbo, 822 A.2d 60, 67 (Pa. Super. 2003) (en banc), abrogated on other grounds by Commonwealth v. Dantzler, 135 A.3d 1109, 1112 n.5 (Pa. Super. 2016) (en banc); see also Dantzler, 135 A.3d at 1112; Commonwealth v. Claffey, 80 A.3d 780, 789 (Pa. Super. 2013). Pursuant to
The parties have not cited any caselaw to this Court on the issue of whether, if the Commonwealth chooses to use the “same evidence presented at the first hearing,” Carbo, 822 A.2d at 67, it may simply rely on the transcript of the first hearing or whether it must either present the same witnesses for live testimony at the second hearing or submit the transcript pursuant to a hearsay exception.4 Even assuming the latter to be so, however, Appellee did not object to the inclusion of the notes of testimony in the evidentiary record at the refile hearing and therefore there is no basis for the exclusion of the notes from the record. See
Turning to the merits of this appeal, we observe that the evidentiary sufficiency of the Commonwealth‘s prima facie case for a charged crime is a question of law as to which our standard of review is de novo and our scope of review is plenary. Commonwealth v. Perez, ___ A.3d ___, No. 9 EAP 2020 (Pa. filed April 29, 2021), slip op. at 16-17. The preliminary hearing is not a trial and serves the principal function of protecting the accused‘s right against an unlawful arrest and detention. Id. at 17. At a preliminary hearing, the Commonwealth bears the burden of proving the prima facie case, which is met 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.” Commonwealth v. Montgomery, 234 A.3d 523, 533 (Pa. 2020) (citation omitted); see also
In reviewing the determination of whether the Commonwealth met its burden
“[I]nferences reasonably drawn from the evidence of record which would support a verdict of guilty are to be given effect [at a preliminary hearing], and the evidence must be read in the light most favorable to the Commonwealth‘s case.” Id. at 18 (citation omitted). “The use of inferences is a process of reasoning by which a fact or proposition sought to be established is deduced as the logical consequence from the existence of other facts that have been established.” Id. (citation omitted). “The ‘more-likely-than-not’ test, must be applied to assess the reasonableness of inferences relied upon in establishing a prima facie case of criminal culpability.” Id.
Upon review, we first observe that the trial court did not apply the correct standards to its review of the question of whether the Commonwealth met its prima facie burden at the preliminary hearing stage. In finding that Rogers’ testimony was “contradictory[] at times” and that the evidence only amounted to a “he said she said” case, Trial Court Opinion, 3/2/20, at 4, the trial court improperly based its determination on the weight and credibility of the Commonwealth‘s evidence, which are not appropriate areas of analysis at the preliminary hearing stage. Perez, slip op. at 17. Furthermore, while the trial court faulted the Commonwealth for not showing that Appellee had a “trait or habit” of using excessive force or that he was acting “outside of his duty as a police officer,” Trial Court Opinion, 3/2/20, at 4, proof of these facts were not required elements of any of the charged crimes, and therefore these factors were irrelevant at the preliminary hearing stage. See Karetny, 880 A.2d at 513 (stating that a trial court has “no discretion” in determining whether the Commonwealth made a prima facie showing of the elements of the charged crimes). Finally, to the extent the trial court found the evidence against Appellee lacking based on the absence of corroborating witnesses or video of the entire sequence of events, the trial court did not view the evidence “in the light most favorable to the Commonwealth and instead improperly viewed it in the light most favorable to [A]ppellee.” Perez, slip op. at 19-20 (holding that this Court erred by overlooking evidence that the defendant thrust his arm towards the victim moments before the victim started bleeding profusely from the neck and instead drawing an inference in favor of the defendant that one of the other individuals present may have stabbed the victim).
By contrast, on our review of the evidence presented below, we conclude that the Commonwealth established a prima facie case as to each of the three charges against Appellee. With respect to the simple assault charge, an individual is guilty of this offense if he “attempts to cause or intentionally, knowingly or recklessly causes bodily injury to another.”
“Bodily injury” is defined by statute as “[i]mpairment of physical condition or substantial pain.”
Here, Rogers testified that, after Appellee removed him from the station bathroom, Appellee “took me down the hallway and pushed me through the door” and then “threw me against the wall,” in spite of the fact that Rogers was not resisting. N.T., 7/26/18, at 8-9. According to Rogers, Appellee then “punched me in my mouth[, a]nd I hit my head against the wall when he did it.” Id. at 8. The punch caused Rogers to bleed from a “busted lip” and caused pain in his head from the impact with the wall. Id. at 10, 19.5 In addition, Sergeant McKenna of the Amtrak Police Department stated that his review of the surveillance video showed that Appellee used “[l]evel two” force against Rogers, which was inconsistent with Amtrak policy. N.T., 10/2/18, at 6-9.
We conclude that the Commonwealth demonstrated probable cause that Appellee committed a simple assault. The evidence shows that Appellee intended to cause bodily injury by pushing him into a corner and punching him in the face.
We likewise find that the Commonwealth demonstrated a prima facie case that Appellee committed the offense of official oppression. Under the relevant sub-section of the statutory definition of the offense:
A person acting or purporting to act in an official capacity or taking advantage of such actual or purported capacity commits [official oppression] if, knowing that his conduct is illegal, he . . . subjects another to arrest, detention, search, seizure, mistreatment, dispossession, assessment, lien or other infringement of personal or property rights.
“The evil sought to be prevented by the law against official oppression is the unlawful abuse of the power of public officials.” Commonwealth v. Checca, 491 A.2d 1358, 1366 (Pa. Super. 1985). “The statute was broadly drafted to include all opportunities for oppressive use of official power” and applies to “numerous situations wherein an official engages in wrongdoing while acting in his official capacity,” including “aggressive action against the individual.” Id. at 1366-67. We have held “as a general rule that a police officer in uniform is cloaked with the authority of his office; and that actions taken by him which constitute mistreatment of another may fairly be said, within the terms of the statute, to be ‘taking advantage’ of that authority.” Commonwealth v. Stumpo, 452 A.2d 809, 814 (Pa. Super. 1982) (footnote omitted).
“Mistreatment” under the statute is given its commonly understood meaning and “is equated with abuse.” Commonwealth v. Manlin, 411 A.2d 532, 533 (Pa. Super. 1979). The use of the word “knowing” in the statute “is intended to include as an element of the crime that the actor be guilty of ‘bad faith’ in order to be guilty thereof“; in other words, “the accused must have been acting in ‘bad faith’ when he subjected the other to the proscribed activities.” Commonwealth v. Eisemann, 453 A.2d 1045, 1048 (Pa. Super. 1982).
The preliminary hearing record reveals that Appellee, while on duty as a uniformed Amtrak police officer, informed Rogers that he was under arrest, forcibly moved him from the men‘s bathroom into a nearby hallway, pushed Rogers into a corner, and struck him in the face. N.T., 7/26/18, at 7-8. In addition, Appellee told Rogers that he would be arrested if he ever returned to 30th Street Station despite Rogers’ remonstrations that he needed to use the station for his regular work commute. Id. at 9-10. This evidence made out a prima facie case that Appellee, while taking advantage of his official authority, subjected Rogers to unlawful “mistreatment” and “aggressive action” and threatened an unlawful arrest if Rogers returned to the station in the future.
We additionally conclude that the Commonwealth showed probable cause that Appellee committed the harassment offense. “A person commits the crime of harassment when, with intent to harass, annoy or alarm another, the person . . .
The Commonwealth showed that, by “shov[ing]” Rogers into a corner and then “strik[ing]” him in the face with his hand, Appellee‘s conduct met the physical contact element of this offense.
Accordingly, after our de novo review of the evidence, we conclude that the Commonwealth met its burden of establishing a prima facie case that Appellee committed each of the three charged offenses. Therefore, we reverse the trial court‘s October 2, 2018 order and remand for further proceedings.
Order reversed. Case remanded. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/17/2021
* Retired Senior Judge assigned to the Superior Court.