Commonwealth v. Cordoba

Decision Date07 July 2006
Citation902 A.2d 1280
PartiesCOMMONWEALTH of Pennsylvania, Appellant, v. Samuel CORDOBA, Appellee.
CourtPennsylvania Superior Court

Douglas J. Waltman, Asst. Dist. Atty., Reading, for Com., appellant.

Tommaso V. Lonardo, Allentown, for appellee.

BEFORE: JOYCE, BENDER and JOHNSON, JJ.

OPINION BY BENDER, J.:

¶ 1 The Commonwealth of Pennsylvania appeals from the order granting Samuel Cordoba's (Appellee) motion for Habeas Corpus relief and dismissing the sole charge against him for recklessly endangering another person. For the reasons that follow, we reverse.

¶ 2 The Court of Common Pleas summarized the facts of this case as follows:

The alleged victim, an adult male, had a consensual sexual relationship with the defendant for about two weeks during the month of June 2003. The defendant and the alleged victim engaged in oral sex approximately five to six times. NT at 18-19. The alleged victim testified that he and the defendant performed oral sex on each other during which time neither partner used a condom. Several days later the alleged victim found prescription medication bottles bearing the defendant's name. The victim suspected that the medication was treatment for the [HIV] virus. Approximately four to five days to a week after the last time the defendant and the alleged victim had oral sex with each other, the victim "confronted" the defendant with the suspected HIV-AIDS prescription medication. NT at 51. The victim testified that he threatened to "expose" (Defendant) to the people at the bar where they had met each other. NT at 26-27. During this verbal confrontation, the defendant admitted that he had, "HIV or that he had AIDS." NT at 28. The alleged victim became quite upset upon learning that the defendant may be HIV positive and subsequently he reported this to the police because he was very angry that the defendant failed to inform him that he was HIV positive before they engaged in consensual oral sex with each other. Since this episode, the alleged victim has been tested every six months to determine if he has the HIV virus and each time the results were negative. NT at 45.

It is an important note that the victim testified that the defendant and he did not exchange semen and that he never observed an open cut or sore anywhere on the defendant's body during the time they engaged in consensual sex. The only exchange of bodily fluids occurred when the defendant ejaculated semen on the alleged victim's face and chest. The victim testified that he did not ingest any semen. NT at 72.

Trial Court Opinion (T.C.O.), 1/17/06, at 4-5. The Commonwealth filed the Complaint underlying this appeal on October 13, 2004; however, there is a procedural history that precedes the Complaint. This history is pertinent, as it serves as one of the alternative bases for the trial court's decision to grant the motion for Habeas Corpus relief.

¶ 3 In particular, both parties and the trial court are in agreement that the Commonwealth had filed a previous complaint, which the court dismissed on a previous motion for Habeas Corpus relief due to its determination that the Commonwealth had failed to establish a prima facie case of recklessly endangering another person. In its subsequent opinion, the trial court stated various reasons for granting Appellee's motion, yet it concluded that even if none of these reasons were valid, the motion should nonetheless have been granted because the Commonwealth "did not establish that the defendant was the likely perpetrator of the crime." T.C.O., 8/2/04, at 7. The court reached this conclusion because "[a]t the Omnibus Pretrial hearing, there was no identification of the defendant by any of the Commonwealth's witnesses." Id.

¶ 4 The Commonwealth filed an appeal to this Court, but it subsequently withdrew the appeal and then re-filed the identical charge against Appellee. At the preliminary hearing for the re-filed charge (which underlies this appeal), the Commonwealth introduced testimony from the alleged victim (J.C.) in which J.C. identified Appellee as the perpetrator. N.T., 2/2/05, at 16-17. Appellee then filed another motion for Habeas Corpus relief and the trial court granted the motion, concluding that the Commonwealth still had not made out a prima facie case and that it was improper for the Commonwealth to withdraw its appeal and re-file the charge against Appellee. The Commonwealth then filed the instant appeal raising the following two questions for our review:

1. Whether the lower court erred in granting Habeas Corpus Relief?

2. Whether the lower court erred in dismissing the prosecution with prejudice?

Brief for Commonwealth at 4.

¶ 5 For the sake of clarity we shall first address the Commonwealth's second question in which it claims that the trial court erred in determining that there was a procedural impropriety with the Commonwealth's decision to withdraw the appeal and re-file the charge. "In reviewing a trial court's order granting a defendant's petition for writ of habeas corpus, we must generally consider whether the record supports the trial court's findings, and whether the inferences and legal conclusions drawn from those findings are free from error." Commonwealth v. Santos, 583 Pa. 96, 876 A.2d 360, 363 (2005) (quotation marks omitted).

¶ 6 In its opinion, the trial court stated that the "Commonwealth's second prosecution should be barred on the grounds that it is contrary to our fundamental understanding of due process" because "the Commonwealth abused the appellate procedure by withdrawing it's [sic] first appeal to the Superior Court after receiving this Court's Memorandum Opinion in support of the dismissal of the charges." T.C.O., 1/17/06, at 10-11. The Commonwealth claims that the Assistant District Attorney who filed the Notice of Appeal did so without reviewing the transcripts because he or she had not yet obtained them. Brief for Commonwealth at 12. Furthermore, the Commonwealth alleges that when it discovered the absence of this crucial evidence regarding the identification of Appellee, it withdrew the appeal "to correct the deficiency in its prima facie case" and it did so "[r]ather than passively awaiting the potentially incomplete review ... by the Superior Court." Id. at 13.

¶ 7 We note that "[t]he finding of a prima facie case is the prerequisite for requiring the accused to stand trial for the charges leveled against him." Liciaga v. Court of Common Pleas of Lehigh County, 523 Pa. 258, 566 A.2d 246, 247 (1989). Therefore, "jeopardy does not attach until the prosecution has established a prima facie case and the accused is presented with the prospect of trial before a tribunal where his guilt or innocence will be determined." Id. See also United States v. Jorn, 400 U.S. 470, 479, 91 S.Ct. 547, 27 L.Ed.2d 543 (1971). More recently, this Court has stated: "[W]e find that the refiling of charges is a viable alternative to filing an appeal from the grant of a habeas corpus petition.... [R]efiling and rearrest are appropriate in those instances where the Commonwealth recognizes the deficiencies in its case and seeks to correct the defect(s)." Commonwealth v. Carbo, 822 A.2d 60, 69 (Pa.Super.2003).

¶ 8 The question in this case is whether the Commonwealth's decision to file an appeal and then withdraw the appeal adversely impacted its right to re-file the charge with the additional testimony identifying Appellee as the perpetrator. We are aware of no violation of any of the Pennsylvania Rules of Appellate Procedure, and although Appellee devotes six pages of argument to his claim that the Commonwealth's actions violate or circumvent the Pennsylvania Rules of Appellate Procedure, not once does Appellee cite a single rule that has ostensibly been violated. Brief for Appellee at 12-18. Instead, Appellee relies more on hyperbole than reason by asserting that the Commonwealth "has acted in bad faith, with ill will, and total disregard for the law and a lack of respect for all the courts of this Commonwealth." Id. at 18.

¶ 9 Appellee wholly ignores the trial court's opinion in the first dismissal wherein it stated that it was granting the motion because, in part, none of the Commonwealth's witnesses identified Appellee as the perpetrator. Furthermore, Appellee does not acknowledge the Commonwealth's attempt to cure this deficiency in the hearing underlying this appeal wherein it introduced testimony from J.C. identifying Appellee as the perpetrator. Rather, Appellee ignores the record before us and repeatedly states that the Commonwealth introduced no new evidence when it refiled the charge.

¶ 10 Under these facts, we discern no unfair advantage gained by the Commonwealth in withdrawing its appeal and refiling the charge, nor prejudice to Appellee from this practice. The procedure followed by the Commonwealth, while perhaps unorthodox, is not contrary to our fundamental understanding of procedural due process. Accordingly, we conclude that the trial court erroneously granted the motion for Habeas Corpus relief on the basis that the Commonwealth had "abused the appellate procedure." T.C.O., 1/17/06, at 10.

¶ 11 We now review the trial court's determination that the Commonwealth failed to establish a prima facie case against Appellee, which is the issue that the Commonwealth sets forth in the first question presented for our review. In considering whether the Commonwealth established a prima facie case, we are guided by the following standard:

A prima facie case consists of evidence, read in the light most favorable to the Commonwealth, that sufficiently establishes both the commission of a crime and that the accused is probably the perpetrator of that crime. In determining the presence or absence of a prima facie case, inferences reasonably drawn from the evidence of record that would support a verdict of guilty are to be given effect, but suspicion and conjecture are not evidence...

To continue reading

Request your trial
3 cases
  • Commonwealth v. Vogelsong
    • United States
    • Pennsylvania Superior Court
    • June 2, 2014
    ... ... In re Maloney, 431 Pa.Super. 321, 636 A.2d 671, 674 (1994);         [90 A.3d 721]Com. v. Cordoba, 902 A.2d 1280, 1287 (Pa.Super.2006).” Appellant's Brief, at 14. However, Vogelsong misapprehends the nature of the Commonwealth's burden. “[I]n order to make out a prima facie case for recklessly endangering another person, the Commonwealth need only establish that the defendant's conduct ... ...
  • Commonwealth v. Coble
    • United States
    • Pennsylvania Superior Court
    • June 13, 2022
    ... ... In meeting its ... prima facie burden to prove this element of REAP, ... the Commonwealth must "establish that there may have ... been the possibility or risk of harm, regardless of the ... likelihood of the manifestation of that harm." ... Commonwealth v. Cordoba", 902 A.2d 1280, 1289 (Pa ... Super. 2006). \"Danger, not merely the apprehension of ... danger, must be created.\" Commonwealth v ... Klein, 795 A.2d 424, 427 (Pa. Super. 2002) (quoting ... Commonwealth v. Hopkins, 747 A.2d 910, 916 (Pa ... Super. 2000)) ...  \xC2" ... ...
  • Stepanovich v. McGraw
    • United States
    • Pennsylvania Superior Court
    • December 6, 2013
    ...See City of Philadelphia v. Fraternal Order of Police, Lodge Number 5 (Breary), 604 Pa. 267, 985 A.2d 1259 (2009); Commonwealth v. Cordoba, 902 A.2d 1280 (Pa.Super.2006); Donegal v. Longo, 415 Pa.Super. 628, 610 A.2d 466 (1992). Therefore, the failure to name State Farm as a party does not,......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT