Commonwealth v. Fortunato
| Docket Number | 1378 WDA 2021 |
| Decision Date | 27 May 2022 |
| Citation | 279 A.3d 1289 (Table) |
| Parties | COMMONWEALTH of Pennsylvania, Appellant, v. Mason FORTUNATO |
| Court | Pennsylvania Superior Court |
The Commonwealth appeals from an order entered by the Court of Common Pleas of Washington County (trial court) granting the pretrial petition for habeas corpus filed by the defendant, Mason Fortunato (Appellee), and dismissing firearms possession charges against him. For the reasons set forth below, we affirm.
This case arises out of a law enforcement pursuit of a vehicle in which Appellee was riding and the discovery of a firearm in the vehicle after the vehicle crashed. On June 8, 2018, a state police trooper observed a Dodge Nitro SUV weaving erratically from the left lane to the right lane and passing traffic on the right shoulder. Trial Court Opinion, 11/1/21, at 1. The trooper activated his lights and siren to stop the vehicle, but the vehicle took off at a high speed and the trooper pursued the vehicle. Id. at 1; N.T., 9/21/20, at 23. After the trooper chased the vehicle for eight or nine miles, during which the vehicle traveled at speeds in excess of 90 miles per hour, the vehicle attempted a right turn and crashed into a tanker truck. Trial Court Order and Opinion, 11/1/21, at 1-2; N.T., 9/21/20, at 7, 23-26.
There were three occupants in the vehicle, the driver, a front seat passenger, and Appellee, who was in the backseat. Trial Court Order and Opinion, 11/1/21, at 2; N.T., 9/21/20, at 7-8, 19, 23-25. All three occupants were seriously injured in the crash and only the driver was conscious after the accident; Appellee and the other passenger were found unconscious. Trial Court Order and Opinion, 11/1/21, at 2; N.T., 9/21/20, at 7-8, 11-12, 25, 28. A North Strabane Township police officer, who came to the scene of the accident to assist, found a loaded Beretta 9mm handgun with an obliterated serial number in the vehicle and turned it over to the state police, who were responsible for the investigation. Trial Court Order and Opinion, 11/1/21, at 2-3; N.T., 9/21/20, at 8-10, 13-14.
Appellee was charged with possession of a firearm with an altered manufacturer's number and carrying a firearm without a license.1 A preliminary hearing was held on September 21, 2020, at which the Commonwealth presented testimony of the police officer who found the gun and the trooper who pursued the vehicle.
The police officer testified that when he looked into the vehicle after the crash, the gun was sitting on top of the center console between the driver's seat and the front passenger seat. N.T., 9/21/20, at 8-9, 13-14, 19. The officer testified that the gun was one to two feet away from all three occupants of the vehicle, and was within easy reach of Appellee, who was unconscious in the rear passenger seat when the gun was found. Id. at 7-9, 11-12, 17-22.
The trooper testified that while he was pursuing the vehicle, he saw the backseat passenger turn and look in his direction. N.T., 9/21/20, at 24. The trooper testified that the backseat passenger was sitting in the middle of the backseat when the chase began and was flung to right, behind the front passenger seat, during the chase when the vehicle hit a sharp bend in the road. Id. at 24-25, 27. The trooper also testified that the driver was moving around after the accident and that the two passengers were unconscious and did not move after the accident. Id. at 25, 28. In addition, the trooper testified that he did not believe that any fingerprint or DNA evidence was found on the gun. Id. at 26.
At the close of the preliminary hearing, the magisterial district judge bound the charges over for trial. N.T., 9/21/20, at 38. On January 19, 2021, the trial court granted the Commonwealth's motion to join the charges against Appellee for trial with prosecutions of the driver of the vehicle and other passenger, both of whom were charged with firearms offenses based on possession of the same handgun. Motion for Joinder; 1/19/21 Trial Court Order.
On July 16, 2021, Appellee filed a pretrial petition for habeas corpus in the trial court asserting that the Commonwealth had failed to make out a prima facie case that Appellee possessed the handgun and seeking dismissal of both of the charges against him. On October 26, 2021, the trial court held a hearing on the petition for habeas corpus at which the Commonwealth presented and moved into evidence the preliminary hearing transcript and introduced additional evidence concerning DNA testing of the gun. N.T., 10/26/21, at 5-6, 10-13, 16; Commonwealth Ex. 2.
Commonwealth Ex. 2 at 1-2 ¶3. The report further stated that with respect to those two swabs, a Y chromosome DNA profile was obtained, that "[a]t the above listed genetic loci, the major component of this Y chromosome DNA mixture profile matches the Y chromosome DNA haplotype obtained from [Appellee]," and that "neither [Appellee] nor any of his paternally related male relatives can be excluded as the contributor of this DNA." Id. at 2 ¶5. The report stated that Appellee "cannot be included as a contributor" to the DNA found in the blood swabs from the grip and muzzle of the gun. Id. at 2 ¶4, 3 ¶6. The Commonwealth did not call any expert witness at the hearing to explain the meaning of any of the statements and results in the lab report.
On November 1, 2021, the trial court granted the petition for habeas corpus and dismissed all the charges, concluding that the Commonwealth's evidence was insufficient to show that Appellee was in constructive possession of the handgun because there were two other occupants of the vehicle who had access to the gun, it was speculative where the gun was when Appellee was conscious before the crash, and the lab report concerning DNA on the gun could not be interpreted without expert testimony. Trial Court Order and Opinion, 11/1/21, at 7-9. The Commonwealth filed a motion for reconsideration, which the trial court denied on November 17, 2021. Trial Court Order and Opinion, 11/17/21.
The Commonwealth filed a timely notice of appeal on November 22, 2021.2 The Commonwealth raises the following single issue for our review:
Whether the trial court erred in ruling the Commonwealth's evidence was insufficient for a prima facie case.
Commonwealth's Brief at 17. We conclude that the trial court did not err in concluding that the Commonwealth failed to establish a prima facie case
A petition for habeas corpus challenges whether the evidence presented by the Commonwealth is sufficient to establish a prima facie case with respect to the charges against the defendant. Commonwealth v. Wyatt , 203 A.3d 1115, 1117 (Pa. Super. 2019) ; Commonwealth v. Dantzler , 135 A.3d 1109, 1112 (Pa. Super. 2016) (en banc ). To establish a prima facie case, the Commonwealth must produce evidence of every element of the offense in question that would be sufficient, if presented at a trial and accepted as true, for the judge to permit the case to be decided by a jury. Commonwealth v. Montgomery , 234 A.3d 523, 533 (Pa. 2020) ; Commonwealth v. Wroten , 257 A.3d 734, 742 (Pa. Super. 2021) ; Commonwealth v. Bostian , 232 A.3d 898, 908 (Pa. Super. 2020). In determining whether the Commonwealth has established a prima facie case, this Court must view the evidence in the light most favorable to the Commonwealth's case and must accept all inferences reasonably drawn from the evidence that support a verdict of guilt. Wroten , 257 A.3d at 743 ; Bostian , 232 A.3d at 908 ; Commonwealth v. Holston , 211 A.3d 1264, 1269 (Pa. Super. 2019) (en banc ). Speculation, suspicion, and conjecture, however, are not sufficient to support a prima facie case. Bostian , 232 A.3d at 908 ; Holston , 211 A.3d at 1269, 1275 ; Wyatt , 203 A.3d at 1120. Whether the trial court erred in holding that the Commonwealth failed to establish a prima facie case is a question of law subject to this Court's plenary review. Wroten , 257 A.3d at 742 ; Holston , 211 A.3d at 1269 ; Dantzler , 135 A.3d at 1112.
Appellee contended and the trial court found that the Commonwealth failed to show that Appellee possessed the handgun, which is an element of both of the charges against Appellee. The Commonwealth argues that its evidence concerning the location where the handgun was found and the DNA report that it introduced were sufficient to make out a prima facie case that Appellant possessed the handgun. We do not agree.
The Commonwealth may prove possession of a firearm not only by evidence that the defendant actually had the firearm on his person, but also by evidence sufficient to show constructive possession of the firearm or constructive joint possession with another person. Commonwealth v. Parrish , 191 A.3d 31, 36 (Pa. Super. 2018) ; Commonwealth v. McClellan , 178 A.3d 874, 878-79 (Pa. Super. 2018) ; Commonwealth v. Bergen , 142 A.3d 847, 852 (Pa. Super. 201...
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