
    COMMONWEALTH of Pennsylvania, Appellant v. Thomas DANTZLER, Appellee.
    Superior Court of Pennsylvania.
    Argued Oct. 15, 2015.
    Filed March 9, 2016.
    
      James F. Gibbons, Assistant District Attorney, Philadelphia, for Commonwealth, appellant.
    Brendan T, McGuigan, Philadelphia, ap-pellee.
    BEFORE: GANTMAN, P.J., BENDER, P.J.E., BOWES, PANELLA, SHOGAN, LAZARUS, OTT, STABILE, and JENKINS, JJ.
   OPINION BY

BOWES, J.:

The Commonwealth appeals from the January 28, 2014 order entered by the trial court that granted Thomas Dantzler’s pretrial motion to quash the charges leveled herein based on a lack of prima facie evidence. We reverse and remand.

Reginald Smith, the victim in this matter, resided with Tiffany, his girlfriend and the mother of his child, on the 3500 block of Camac Street, Philadelphia. On March 27, 2012, Mr. Smith arrived at his home and discovered Appellee engaging in sexual activity' with Tiffany. As a result, Mr. Smith tried to remove both Tiffany and Appellee from the home. Appellee and Mr. Smith then began to fight, with Mr. Smith attempting to force Appellee out his front door. Mr. Smith ultimately retrieved a stick during the struggle and began to beat Appellee. Tiffany also used a taser on Appellee.

Mr. Smith’s neighbor, Kim Amos, who had lived in her home for twenty-three years, arrived to see Mr. Smith, Tiffany, and Appellee fighting. Ms. Amos maintained that Appellee was trying to enter the home and Mr. Smith was trying to push him out and that this happened several times. Ms. Amos saw Mr. Smith use the stick outside the home to beat Appel-lee and asked Mr. Smith and Tiffany to stop attacking Appellee and call the police. Ms. Amos then telephoned 911 herself. Police charged Mr. Smith and Tiffany with assault.

Thereafter, on April 7, 2012, at around 3:00 p.m., Ms. Amos observed Appellee and co-defendant Gelain Heard approach her home. She recognized Appellee from the fight but had never seen Mr. Heard. After they stopped in front of her house, she shouted at them that, “You have the wrong house.” N.T., 7/16/12, at 17. She repeated that several times. Nonetheless, Mr. Heard used a cell phone to take a picture of her house.

Disturbed, Ms. Amos then followed the two men in her car and saw them enter a black Dodge Durango. She drove next to the Durango and again informed the men that they had the wrong home. Appellee was seated in the driver’s seat of the Du-rango. Mr. Heard then said twice, “On everything I love, just don’t be in the house tonight.” . Id. at 21.

Later that evening, a video surveillance camera captured an individual in a black hoodie with a baseball cap standing next to Appellee’s Durango, conversing with the driver, around the corner from Ms. Amos’ and Mr. Smith’s homes. Several minutes later, Ms. Amos saw Mr. Heard on her steps, wearing a black hoodie and baseball hat. Mr. Heard asked her twice; “Is this the F-in’ house?” Id. at 24. Ms. Amos responded, “F-no, this is not the house,” and slammed her door. Id. Within five minutes, she heard four or five gun shots ring out. Mr. Smith, who was alone in his house at the time, described bullets flying into his home. He was hit in the shoulder with a bullet and another bullet grazed his neck.

Subsequently, police charged Appellee with aggravated assault, conspiracy to commit aggravated assault, possession of an instrument of crime (“PIC”), simple assault, and recklessly endangering another person (“REAP”). He proceeded to a preliminary hearing and the court bound over the case for trial. Appellee then filed a motion to quash the information, the equivalent in Philadelphia practice of a pre-trial writ of habeas corpus. After reviewing the notes of testimony from the preliminary hearing, the trial court conducted a hearing. It heard additional evidence and then granted the motion. The Commonwealth filed a motion for reconsideration, which the court denied on February 25, 2014. The Commonwealth timely appealed.

A divided panel of this Court affirmed, concluding that based on an abuse of discretion standard we were required to defer to the trial court and that the evidence only showed mere presence at the scene shortly before the crime occurred. The Commonwealth sought en banc review, which this Court granted. The matter is now ready for our review. The Commonwealth’s sole issue on appeal is “Did the lower court err in ruling that the evidence was insufficient for a prima facie case?” Commonwealth’s brief at 4.

We review a decision to grant a pre-trial petition for a writ of habeas corpus by examining the evidence and reasonable inferences derived therefrom in a light most favorable to the Commonwealth. Commonwealth v. James, 863 A.2d 1179, 1182 (Pa.Super.2004) (en banc). In Commonwealth v. Karetny, 583 Pa. 514, 880 A.2d 505 (2005), our Supreme Court found that this Court erred in applying an abuse of discretion standard in considering a pretrial habeas matter to determine whether the Commonwealth had provided prima fade evidence. The Karetny Court opined, “the Commonwealth’s prima fade case for a charged crime is a question of law as to which an appellate court’s review is plenary.” Id. at 513, 880 A.2d 505; see also Commonwealth v. Huggins, 575 Pa. 395, 836 A.2d 862, 865 (2003) (“The question of the evidentiary sufficiency of the Commonwealth’s prima fade case is one of law[.]”). The High Court in Karetny continued, “[i]ndeed, the trial court is afforded no discretion in ascertaining whether, as a matter of law and in light of the facts presented to it, the Commonwealth has carried its pre-trial, prima fade burden to make out the elements of a charged crime.” Karetny, supra at 513, 880 A.2d 505. ■ Hence, we are not bound by the legal determinations of the trial court. To the extent prior cases from this Court have set forth that we evaluate the decision to grant a pre-trial habeas corpus .motion under an abuse of discretion standard, our Supreme Court has rejected that view. See id.

A pre-trial habeas corpus motion is the proper means for testing whether the Commonwealth has sufficient evidence to -establish a prima facie, case. Carroll, supra at 1152. “To demonstrate that a prima fade case exists, the Commonwealth, must produce evidence • of..every material element of the charged offense(s) as well as the defendant’s complicity therein.” Id. To “meet its burden, the Commonwealth may utilize the evidence presented at the preliminary hearing and also may submit additional proof.” Id.

The Commonwealth maintains that the trial court erred as a matter of law. in dismissing the charges against Appellee. According to the Commonwealth, the trial court made impermissible and implausible inferences from the evidence and' entirely disregarded its evidence of motive. It highlights that the credibility of witnesses is not determined at a preliminary hearing and that the question of whether- the evidence was sufficient is one of law. In its view, the trial court erred in finding that, absent direct evidence of an agreement between Appellee and his co-defendant, neither a conspiracy nor conspiratorial liability was established. The Commonwealth posits that direct evidence is not mandated nor is required to prove an express or explicit agreement via verbal communication.

It continues that the following evidence was sufficient to establish a prima facie case: Appellee traveled together with Mr. Heard to where Appellee had recently been involved in a fight with the victim, took a picture of the victim’s neighbor’s home, was present when his co-defendant made a threat, and his vehicle was observed around the comer from Mr. Smith’s home with a person fitting the description of Mr. Heard shortly before Mr. Heard arrived on the door , step of Mr. Smith’s neighbor’s home, and then shots were fired at Mr. Smith’s house.

The Commonwealth adds that its evidence demonstrated that Mr. Heard had no affiliation with the victim. It suggests that, “[o]nly a conspiracy with [Appellee], who had ample motive, can explain why Heard decided to track down a complete stranger and fire multiple bullets into his home,” Commonwealth’s brief at 21. In addition, it points out that Ms. Amos inferred a conspiratorial purpose and potential criminal activity herself when she saw the pair in front of her house taking a picture of her home, and repeatedly instructed the men that they had the wrong house.

The trial court opined that the prosecution’s evidence of a conspiracy was speculative arid that it “did not present any direct evidence that Dantzler was involved in the shooting of Reginald Smith.” Trial Court Opinion, 5/16/14, at 7. The court found that the circumstantial evidence merely established that Appellee and Mr. Heard were together three hours before the shooting and that Mr. Heard had made a threat in which Appellee did not acquiesce. We disagree and find that the trial court failed to consider the evidence in a light most favorable to the Commonwealth and disregarded the reasonable and obvious inferences from the evidence presented.

As noted, the Commonwealth charged Appellee with aggravated assault, conspiracy to commit aggravated assault, simple assault, PIC, and REAP. The Commonwealth’s theory for these crimes is based on vicarious liability, specifically conspiratorial liability. A conspiratorial agreement “can be inferred from a variety of circumstances including, but not limited to, the relation between the parties, knowledge of and participation in the crime, and the circumstances and conduct of the parties surrounding the criminal episode.” Commonwealth v. Feliciano, 67 A.3d 19, 25-26 (Pa.Super.2013) (en banc) (discussing crime of conspiracy). This Court has explained in the context of a sufficiency claim following a finding of guilt that, “the Commonwealth must establish the defendant: 1) entered into an agreement to commit or aid in an unlawful act with another person or persons; 2) with a shared criminal intent; and 3) an overt act was done in furtherance of the conspiracy.” Feliciano, supra at 25-26. The Feliciano Court added, “The conduct of the parties and the.circumstances surrounding such conduct may create a web of evidence linking the accused to the alleged conspiracy beyond a reasonable doubt.” Id. at 26. Necessarily, the conduct of the parties and circumstances surrounding that conduct may establish sufficient evidence to prove, a prima facie case of conspiracy or conspiratorial liability. The crime of conspiracy, which is interrelated to conspiratorial liability for the underlying crimes, is statutorily defined as follows,

A person is guilty of conspiracy with another person or persons to commit a crime if with the'intent of promoting or facilitating its commission he:
(1) agrees with such other person or persons that they or one or more of them will engage in conduct which constitutes such crime or an attempt or solicitation to commit such crime; or
(2) agrees to aid such other person or persons in the planning or commission of such crime or of an attempt or solicitation to commit such crime.

18 Pa.C.S. § 903.

In the context of this matter, the Commonwealth was required to establish a pri-ma facie case that Appellee conspired to cause serious bodily injury under circumstances manifesting an extreme indifference to the value of human life. See 18 Pa.C.S. § 2702(a)(1). In addition, it needed to prove a prima facie case that Appel-lee conspired to both cause bodily injury and recklessly place another in danger of death or serious bodily injury. 18 Pa.C.S. § 2701(a)(1) (simple assault); 18 Pa.C.S. § 2705 (REAP). Finally, the Commonwealth had to provide sufficient prima fa-cie evidence that Appellee conspired to possess an instrument of crime with intent to employ it criminally. 18 Pa.C.S. § 907(a); Commonwealth v. Jones, 272 Pa.Super. 444, 416 A.2d 539, 541 (1979) (defendant can be guilty of inchoate crime of PIC ás a conspirator).

Viewing the evidence in a light most favorable to the Commonwealth, and mindful .that a prima facie case is a low threshold of proof, we find that the trial court committed an error of law in quashing the charges. Here, the evidence and its reasonable inferences are clear. Appellee had a fight with the victim. He and Mr. Heard were then seen in the immediate area of Mr. Smith’s home within two weeks of the prior incident. Ms. Amos testified that, in the twenty-three years she lived in the neighborhood, the first time she saw Appellee was the day of the fight.' The day of the shooting was the only time she saw Mr. Heard.

Appellee was present when Mr. Heard took a picture of Ms. Amos’ home, located next door to the victim’s house. Appellee was present when Ms. Amos repeatedly told him and Mr. Heard that they were at the wrong house. Mr. Heard expressly told Ms. Amos not to be in her home while he was seated directly next to Appellee. Appellee’s vehicle was captured on video tape with a person matching Mr. Heard’s description talking to the occupant of that vehicle in the vicinity of Mr. Smith’s home shortly before the shooting. Mr. Heard, wearing the same clothes as the person who had been seen talking to a person inside Appellee’s car, appeared on the front steps of Ms. Amos’ house. After Ms. Amos again told Mr. Heard he was at the wrong home, shots rang out next door and Mr. Smith suffered gunshot wounds. This evidence, and the reasonable inferences derived therefrom, establishes a prima, fa-cie case that Appellee conspired with Mr. Heard to retaliate for the prior fight.

Order reversed. Case remanded. Jurisdiction relinquished.

President Judge Emeritus BENDER, Judge PANELLA, Judge SHOGAN, Judge OTT, Judge STABILE, and Judge JENKINS Join this Opinion.

Judge LAZARUS files a Concurring Opinion in which Judge OTT and Judge JENKINS join.

President Judge GANTMAN Concurs in the Result of this Opinion.

CONCURRING OPINION BY

LAZARUS, J.:

While I join the majority, I write separately to note my view that, in general, this Court should exercise caution in reversing a trial court’s decision regarding a pre-trial habeas cotpus matter. This caution is particularly warranted in cases, like the one at bar, where the facts present a close case such that reasonable minds could differ in the result.

"Whether the Commonwealth has presented sufficient evidence to establish a prima facie case for a charged crime is a question of law. Commonwealth v. Karetny, 583 Pa. 514, 880 A.2d 505, 513 (2005). Therefore, an appellate court’s review of a pre-trial habeas corpus motion is plenary. Id. Although we are not bound by the legal determinations of the trial court, I remain mindful that the trial court will often be in an advantageous position at a pre-trial hearing to assess the evidence presented and the reasonable inferences to be drawn from it.

At the pre-trial stage, the evidentiary burden on the Commonwealth to defeat a habeas corpus motion is relatively modest. “To demonstrate that a prima facie case exists, the Commonwealth must produce evidence of every material element of the charged offense(s) as well as the defendant’s complicity therein.” Commonwealth v. Carroll, 936 A.2d 1148, 1152 (Pa.Super.2007). Regarding the burden of proof, this Court has noted:

Proof beyond a reasonable doubt is not required at the habeas stage, but the Commonwealth’s evidence must be such that, if accepted as true, it would justify a trial court in submitting the case to a jury. Additionally, in the course of deciding a habeas petition, a court must view the evidence and its reasonable inferences in the light most favorable to the Commonwealth. Suspicion and conjecture, however, are unacceptable.

Id. (emphasis added) (citation omitted). Clearly, rational minds can disagree as to whether an inference is reasonable or merely speculative. In the balance, due weight should be given to the trial court’s evaluation of the factual circumstances.

From my review of the record, I agree with the majority that the Commonwealth has met the minimal burden imposed on it to overcome a pre-trial habeas corpus motion. Notwithstanding this,. I emphasize that the evidence of record, and the inferences derived therefrom, undoubtedly makes this case a close call.

It is with these views in mind that I concur with the majority.

Judge OTT and Judge JENKINS Join this Concurring Opinion. 
      
      . We have jurisdiction over this appeal pursuant to Pa.RAP. 311(d). Commonwealth v. Karetny, 583 Pa. 514, 880 A.2d 505 (2005).
     
      
      . The record does not reveal Tiffany’s surname.
     
      
      .Mr. Smith testified that Appellee paid his girlfriend for sex.
     
      
      . Our Supreme Court’s decision in Commonwealth v. Karetny, 583 Pa. 514, 880 A.2d 505, 513 (2005), indicates that the majority memorandum utilized a since disavowed standard of review. See discussion infra.
      
     
      
      . The following are a sampling of Superior Court cases that have applied an abuse of discretion standard:
      
        Commonwealth v. Black, 108 A.3d 70, 77 (Pa.Super.2015); Commonwealth v. McCullough, 86 A.3d 901, 905 (Pa.Super.2014); Commonwealth v. McCullough, 86 A.3d 896, 898 (Pa,Super,2014); Commonwealth v. Winger, 957 A.2d 325, 327 (Pa.Super.2008); Commonwealth v. Carroll, 936 A.2d 1148, 1152 (Pa.Super.2007); Commonwealth v. Kelly, 931 A.2d 694, 696 (Pa.Super.2007); Commonwealth v. Hendricks, 927 A.2d 289, 290 (Pa.Super.2007); Commonwealth v. Williams, 911 A.2d 548; 550 (Pa.Super.2006); Commonwealth v. James, 863 A.2d 1179, 1181-1182 (Pa.Super.2004) (en banc); Commonwealth v. Engle, 847 A.2d 88, 91 (Pa.Super.2004); Commonwealth v. Ruby, 838 A.2d 786, 788 (Pa.Super.2003); Commonwealth v. Keller, 823 A.2d 1004, 1010-1011 (Pa.Super.2003); Commonwealth v. Carbo, 822 A.2d 60, 63 (Pa.Super.2003); Commonwealth v. Fountain, 811 A.2d 24, 25 (Pa.Super.2002); Commonwealth v. Kohlie, 811 A.2d 1010 (Pa.Super.2002); Commonwealth v. Miller, 810 A.2d 178, 180 (Pa.Super.2002); Commonwealth v. Giusto, 810 A.2d 123, 125 (Pa.Super.2002); Commonwealth v. Packard, 767 A.2d 1068, 1070 (Pa.Super.2001); Commonwealth v. Saunders, 456 Pa.Super. 741, 691 A.2d 946, 948 (1997); Commonwealth v. Karlson, 449 Pa.Super. 378, 674 A.2d 249, 251 (1996); Commonwealth v. Schwer, 442 Pa.Super. 604, 660 A.2d 621, 622 (1995); Commonwealth v. Lundberg, 422 Pa.Super. 495, 619 A.2d 1066 (1993).
      . The Lundberg Court is one of the first pretrial habeas cases to recite this standard, but it relied on two decisions that pertained to post-conviction habeas corpus petitions. See Commonwealth v. Lundberg, 422 Pa.Super. 495, 619 A.2d 1066 (1993) (citing Commonwealth ex rel. Kitchen v. Burke, 175 Pa.Super. 597, 107 A.2d 193, 195 (1954); Commonwealth ex rel. Richter v. Burke, 175 Pa.Super. 255, 103 A.2d 293, 295 (1954)). The pre-trial habeas cases are not sound relative to the standard of review.
     
      
      . Appellee expressly declined to file a brief in this matter and therefore has not advanced any argument in support of his position on appeal aside from adopting the trial court's decision.
     
      
      . A defendant can also be guilty of a crime if he is an accomplice of another person who commits that crime. Conspiracy and accomplice liability are not identical. See Commonwealth v. Roebuck, 612 Pa. 642, 32 A.3d 613, 622-623 (2011). While a defendant does not become an accomplice merely by being present at the scene of a crime, he may be an accomplice if, with the intent of promotion or facilitating commission of the crime, he solicits, commands, encourages, or requests the other person to commit it or aids or agrees to aid or attempts to aid the other person in planning or committing it.
     