Commonwealth v. Sinkiewicz, 480 EDA 2022

CourtSuperior Court of Pennsylvania
Writing for the CourtMcCAFFERY, J.
Citation2023 PA SUPER 62
Docket Number480 EDA 2022,481 EDA 2022,J-A07033-23
Decision Date05 April 2023


2023 PA SUPER 62





Nos. 480 EDA 2022, 481 EDA 2022

No. J-A07033-23

Superior Court of Pennsylvania

April 5, 2023

Appeal from the Order Entered December 8, 2021 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): MC-51-CR-0020631-2020, MC-51-CR-0020632-2020




In these consolidated appeals,[1] the Commonwealth appeals from the orders entered in the Philadelphia County Court of Common Pleas denying its motions to refile aggravated assault charges against Matthew Sinkiewicz


(Appellee), a former sergeant with the Southeastern Pennsylvania Transportation Authority (SEPTA) police force, in two cases involving his assault of two protestors. On appeal, the Commonwealth contends it presented prima facie evidence that Appellee attempted to cause serious bodily injury to the victims and caused bodily injury to the victims with a deadly weapon to support two counts of aggravated assault at each docket. See 18 Pa.C.S. § 2702(a)(1), (4). For the reasons below, we affirm.

The charges against Appellee arose as a result of his actions during a May 30, 2020, Black Lives Matter protest outside of Philadelphia's Municipal Services Building (MSB). At that time, Appellee was uniformed and on-duty, assisting other officers in keeping the protestors at bay. While attempting to push protestors back from the MSB, Appellee struck two protestors ─ Hannah Bachism and Joseph Rupprecht ─ with his department-issued baton. At two separate dockets, he was charged with two counts of aggravated assault under Subsections 2702(a)(1) and (a)(4), and one count each of possessing an instrument of crime, simple assault, recklessly endangering another person (REAP), unsworn falsification to authorities, and official oppression.[2] See Trial Ct. Dockets MC-51-CR-0020631-2020 (Rupprecht); MC-51-CR-0020632-2020 (Bachism).

The cases proceeded to a bifurcated preliminary hearing conducted before Philadelphia Municipal Court Judge Wendy L. Pew on September 22, 2021,


and November 3, 2021. The following evidence was presented by the Commonwealth.

By late afternoon on May 30, 2020, approximately 1,000 to 2,000 protestors had gathered in front of the MSB, and were starting to "rush" the building. See N.T., 11/3/21, at 48. Both police body cam footage and aerial footage from a local news station of the incidents at issue was presented at the preliminary hearings. As noted supra, Appellee was a SEPTA police sergeant; he was uniformed and on-duty at all relevant times. Just prior to the incidents, the officers were supplied with protective shields, and ordered to "push people back." See id. at 48, 68.

Hannah Bachism testified that at approximately 4:50 p.m., Appellee pushed her with his shield, then moved it away and struck her "over the back of [her] head and on [her] arm" with his metal baton. See N.T., 9/22/21 at 7, 9. She stated that she immediately backed away and began "running down the steps" at which time she tripped and lost a shoe. Id. at 9. Bachism testified she went to the hospital where the staff "used glue that was safe for your skin to close the [head] wound." Id. She stated she had a permanent scar, and experienced tingling on the back of her head for seven to eight months following the injury. Id. at 9-10. Bachism identified herself in photographs from the protest and narrated the body cam and aerial footage of the incident presented by the Commonwealth. See id. at 10-19.

Under cross-examination, Bachism acknowledged that she did touch Appellee before he struck her with his baton but did not remember the


"specifics." See N.T., 9/22/21, at 26, 29-30. She recalled only that after she was "hit with his shield[,]" she instinctively raised her arms to push back. Id. at 26-27. Appellee then presented Bachism with a still photograph of the incident, after which she admitted showed her pushing against Appellee's arm. See id. at 34-36. Under redirect, Bachism agreed the "whole interaction" took place "within 5 to 10 seconds." Id. at 60.

Joseph Rupprecht testified that he was also one of the protestors in front of the MSB on May 30, 2020. N.T., 11/3/21, at 5-6. He claimed that the police "charged" the protestors, who were unable to "run away[, a]nd eventually [Appellee] struck [him] over the head with the baton." Id. at 6. Rupprecht identified himself in still photographs and the aerial footage; he was wearing blue gloves at the time. See id. at 7-9, 23-24. He acknowledged it was "very chaotic" in the "ten minutes or so before [he] was struck[.]" Id. at 16. Rupprecht testified that officers "came into [his] space and were attacking" him so he had his "hands up in defense" and some officers "may have made contact with [his] hands." Id. While the aerial footage showed his arm outstretched in Appellee's direction immediately before he was struck, Rupprecht claimed he was attempting to "prevent and defend against the batons and shield and barricades that were being swung at [him] and the people around [him]." Id. at 24. Rupprecht testified that after Appellee struck him in the head with his metal baton, he was taken to the emergency room where he received ten staples and was diagnosed with a concussion.


Id. at 12. He claimed he experienced pain at the site for weeks, and was unable to work at his six-hour per week job for two weeks. Id. at 12-14.

The Commonwealth also presented the testimony of SEPTA Police Lieutenant Mark Pasquarella, who investigated Appellee's actions during the protest response. See N.T., 11/3/21, at 44-45. As part of the investigation, Lieutenant Pasquarella reviewed the Response to Resistance Report, which was completed by Appellee after the incident. See id. at 46-48. In his report, Appellee stated the protestors "refused numerous commands to back up[,]" and were "physically resisting" the officers as they pushed them back with their shields. See id. at 48. Appellee acknowledged he then "used [his] baton to get [protestors] to move back." Id. Lieutenant Pasquarella testified that he reviewed the body cam and aerial footage of the incident and observed Appellee strike four protestors in their heads with his baton. See id. at 53-54. He also acknowledged, however, that there appeared to be 1,000 to 2,000 people present at the scene, the police had requested further assistance, and there were multiple objects (pipes, glass, strollers) being thrown at police from the crowd. Id. at 62-63. Lieutenant Pasquarella confirmed Appellee's claim that the officers were ordered to "push the people back[.]" Id. at 68.

Lastly, the Commonwealth entered into evidence SEPTA's "response to resistance directive." See N.T., 11/3/21, at 79-81. The parties stipulated


that the document was "the protocol that is in place for response to resistance that [Appellee] would have been trained in and subject to."[3] Id. at 87-88.

At the conclusion of the November 3rd hearing, the trial court discharged the felony aggravated assault charges for lack of evidence, but held the remaining misdemeanor charges for trial. See N.T., 11/3/21, at 104. Five days later, on November 8, 2021, the Commonwealth filed a notice of its intent to refile the criminal complaint ─ including the felony aggravated assault charges ─ at each docket. See Notices of Refiling of Criminal Complaint, 11/8/21.

A refile hearing was conducted on December 8, 2021, before Philadelphia Common Pleas Court Judge Crystal Bryant-Powell.[4] The


Commonwealth "elected not to present additional live testimony but [moved] into evidence the notes of testimony from the preliminary hearings of September 22, 2021, and November 3, 2021, two videos collectively that were shown at the bifurcated preliminary hearings, and photographs that were also shown at the bifurcated preliminary hearings." Trial Ct. Op., 4/18/22, at 2. It also attempted to move into evidence the SEPTA response to resistance directives that were admitted at the November 3rd hearing. See N.T., 12/8/21, at 27-28. However, the court sustained Appellee's objection to the document, finding it was "irrelevant." Id. at 28. At the conclusion of the hearing, the trial court denied the motion to refile at both dockets. See id. at 34.

On December 20, 2021, the Commonwealth filed two notices of appeal,[5]one at each docket, asserting that the orders denying its motions to refile


"terminate[d] or substantially handicap[ped] the prosecution[s]."[6] See Commonwealth's Notices of Appeal, 12/20/21; Pa.R.A.P. 311(d) (Commonwealth may take an appeal in a criminal case "from an order that does not end the entire case where the Commonwealth certifies in the notice of appeal that the order will terminate or substantially handicap the prosecution.").

The Commonwealth presents one issue for our review:

Did the lower court err in ruling that the evidence was insufficient to establish a prima facie case that [Appellee] committed the aggravated assault charges, where the evidence, properly viewed in the light most favorable to the Commonwealth, established that [Appellee] intentionally struck each of the victims in the head with a metal baton?

Commonwealth's Brief at 4.

Our review of an order quashing a criminal charge is guided by the following:

[T]he evidentiary sufficiency of the Commonwealth's prima facie case is a question of law to which this Court's review is plenary. The trial court is afforded no discretion in deciding whether, as a matter of law and in light of the facts presented to it, the Commonwealth has carried its burden to make out the elements of a charged crime.
As our Supreme Court has explained:
[a]t the preliminary hearing stage of a criminal prosecution, the Commonwealth need not prove the

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