Com. v. Johns, M.

J-A19008-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee

v.

MICHAEL C. JOHNS,

Appellant No. 216 WDA 2014

Appeal from the Judgment of Sentence Entered August 14, 2013
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0010711-2012

BEFORE: BENDER, P.J.E., JENKINS, J., and MUSMANNO, J.

MEMORANDUM BY BENDER, P.J.E.: FILED AUGUST 28, 2015

Appellant, Michael C. Johns, appeals from the judgment of sentence of

an aggregate term of 36-72 months’ incarceration, followed by 7 years’

probation, following his conviction for crimes including official oppression,

attempted insurance fraud, and drug-related offenses. Herein, Appellant

claims the trial court erred when it denied his motion to sever official

oppression from the remaining charges. He also asserts there was

insufficient evidence to convict him of official oppression. Additionally,

Appellant challenges the sufficiency of the evidence supporting his drug-

trafficking convictions. After careful review, we reverse Appellant’s

conviction for official oppression, vacate Appellant’s judgment of sentence,

and remand for a new trial(s) on all offenses except official oppression.
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The following summary of the facts presented at trial was set forth in

Appellant’s Brief:1

[Appellant,] Former Pittsburgh Police Officer Michael C.
Johns[,] fell in love with a heroin addicted woman, Ms. Regina
Silla (Gina). Gina supported her heroin habit through
prostitution; Gina ran ads in a local newspaper, Backpage,
promoting her services. As police investigated the ads in
Backpage, they discovered that payment for the ads came from
[Appellant’s] debit card. Tracing the IP address used to place
the ads revealed that the ads were posted from locations around
the area of [Appellant’s] apartment. The ads listed contact
information as either Jack C. Silla or “dborandi.” Police knew
David Borandi as a person who periodically drove Gina to her
escort appointments, or “erotic shows” as she called them. After
[Appellant] discovered that Gina used his debit card, he
cancelled the card.

Regina Silla first became known to police in connection
with this case during a traffic stop in the early morning of April
24, 2011. William Oravetz drove a white Cadillac that police
pulled over for suspicion of DUI, and Gina was his passenger.
When officers noted that Oravetz did not have a valid driver’s
license, they asked who rented the car, Oravetz told them that
Gina’s friend Mike did. Silla had an Act 235 card2 issued to
[Appellant] in her purse. Gina explained that [Appellant] was
her boyfriend and a Pittsburgh policeman. The officer who
performed the traffic stop took Gina and Oravetz to the police
station and called [Appellant], asking him if he wanted to pursue
theft charges against the pair. [Appellant] did not wish to press
charges. The officer, William Meisel, noticed that the Cadillac
had damage to its side consistent with recently being involved in
an accident. The Commonwealth offered testimony at trial, over
____________________________________________

1
The trial court did not provide a factual summary in its Pa.R.A.P. 1925(a)
opinion. However, Appellant’s Brief provides an accurate summation of the
evidence offered at trial, and the Commonwealth has not taken any
exception to Appellant’s summary. See Commonwealth’s Brief, at 6 (“The
facts and circumstances underlying the conviction have been set forth in the
Brief for Appellant ….”).

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objection, that the damage to the car seemed to be from hitting
a tree or a pole, and not from being sideswiped while parked on
the street.
___
2
This card is issued to people who are eligible to perform
private security work.
___

Officer Meisel also testified that when police searched Oravetz
incident to his arrest,3 he had a shoestring in his pocket with a
round key ring attached. In the key ring was a small piece of
paper inscribed with the name “Alivia Kail.”4 According to Officer
Meisel, Alivia Kail had been on the news at the time of the traffic
stop because she was reported missing and had been
presumably murdered. No connection was ever made between
the Alivia Kail case and Oravetz, Gina, or [Appellant].
___
3
Police charged Oravetz with promoting prostitution,
conspiracy, unauthorized use of a vehicle, driving with a
suspended license, and traffic offenses. No information
was provided at trial regarding the outcome of those
charges.
4
The transcript in this case misspells this name as “Olivia
Kale[.”] A search of news reports of the period indicates
the proper spelling of Ms. Kail’s name.
___

Despite the lack of connection to the disappearance,
Detective Daniel Mayer, the lead investigator on the Alivia Kail
case, interviewed [Appellant] after the key ring’s discovery.
During this interview, [Appellant] discussed his relationship with
Gina and admitted to Mayer that he would often rent cars and
Gina would take them to use in her erotic show business.
[Appellant] also told Detective Mayer that Gina would take his ID
card with her when he worked. This sparked an investigation.

Detective Michael Schopp answered an ad placed by Gina.
He called the number on the Backpage ad, and asked for two
girls for a bachelor party. Gina and her friend Natalie arrived at
the hotel escorted by William Oravetz; Oravetz went to the hotel
room with the girls and asked for the promised $275.00.
Schopp refused to pay Oravetz and Oravetz then returned to his
car. Schopp then asked if Gina and her friend would perform

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oral and vaginal sex for him and his partner in exchange for
$600. After she agreed, police arrested Gina and charged her
with prostitution and with possession of a controlled substance
for heroin found in her purse. Oravetz was also arrested.
Detective Schopp did not know what happened to the charges
against Gina.

Detective Joseph Ryczaj testified about arranging another
meeting at a Days Inn hotel via Backpage with Gina and her
friend, Crystal Waz, and subsequently arresting them for
prostitution and for possession of heroin. Detective Ryczaj was
unable to testify as to how those charges were resolved.

On August 27, 2011, in connection with an investigation of
[Appellant], Gina Silla and Crystal Waz agreed to work with
narcotics Detective Todd Naylor in setting up a drug purchase.
[Appellant] agreed to drive Gina and her friend to one of her
erotic shows at the South Hills Hotel in the southern part of
Allegheny County. [Appellant] drove a yellow cab. The girls
entered the hotel room with Detective Naylor, who then
prepared them with recording devices. The detective planned
for the girls to ask [Appellant] to take them to see a drug dealer
named “Fresh” and purchase heroin for the girls to give to
“Scott[.”]

[Appellant] drove the girls after being directed on how to
find Fresh; Gina then left the cab and walked out of [Appellant’s]
sight to purchase 19 glassine bags of heroin. Gina re-entered
the cab and [Appellant] took them to another hotel. When the
girls arrived, Detective Naylor searched them, confiscated the
heroin, and removed the recording devices. Police did not arrest
Fresh in connection with this transaction. Gina and Crystal did
not face charges in this incident; because of her cooperation,
Gina had other charges withdrawn. During [Appellant’s] trial,
prosecutors played a tape recording5 of the conversation during
the car ride to and from the encounter with Fresh; Detective
Naylor admitted that much of the interaction between
[Appellant] and Gina involved [Appellant] attempting to
persuade Gina to get off drugs, go into rehab, and turn her life
around. Detective Naylor further admitted that the only
connection that [Appellant] had to the drugs was that he
provided transportation to Gina and Ms. Waz so they could
purchase them.
___

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5
It is unclear why this tape was not transcribed as part of
the Notes of Testimony.
___

After this controlled buy, Detective Naylor arranged to get
a search warrant for [Appellant’s] apartment. During the search,
police discovered use paraphernalia for the heroin, small rubber
bands and a quart size Ziploc bag filled with rice, as well as
several random pieces of identification, including a Pennsylvania
ID Card for William Jackson.

William Jackson testified at trial that [Appellant] arrested
him in 2008, three years prior to [Appellant’s] arrest. Jackson
stated that [Appellant] took his ID card during an arrest for
disorderly conduct and public drunkenness, and never returned
it. Due to his lack of ID, Jackson spent the night in jail. During
trial, over objection, Detective Schopp testified as an expert
regarding the typical Pittsburgh police procedures followed when
arresting someone for a third-degree misdemeanor. Detective
Schopp stated that when the defendant in such cases has a valid
ID, the police merely serve the defendant by summons or
citation.

Regarding the claimed insurance fraud, the prosecution
presented testimony from David Borandi, who worked as the
usual driver and security man for Gina. He worked almost every
night for a time, sometimes driving [Appellant’s] personal car
and sometimes a rental. Gina owned an uninspected, uninsured
car, so it was not used. Borandi explained that he had an
accident with the rental car; the car got stuck in mud and hit a
tree. Borandi offered to pay to fix the car, but noted it would
take him “a very long time” to get the money to fix the vehicle.

The Commonwealth played an audio tape of a conversation
between an insurance adjuster for State Farm Insurance, Pete
Ziff, and [Appellant]. The contents of this tape were not
transcribed. State Farm did not pay to repair the rental car as
[Appellant’s] insurance plan did not cover cars rented for more
than 30 days.

The final witness for the Commonwealth, Keith Maceil,
owned an auto body business. Mr. Maceil testified that his
company contracted with Enterprise Rental Car to inspect
Enterprise’s damaged rental cars and provide estimates for
repairs. According to Maceil, the damage done to the Cadillac

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indicated hitting a pole or a tree, not being sideswiped by
another car while parked.

[Appellant] testified on his own behalf. [Appellant]
testified that he had been a police officer for 16 years. He
received unit citations and commendations during his career; he
also received an award from the mayor and chief of police for
meritorious service. He made thousands of arrests during the
course of his career.

Gina had been [Appellant’s] girlfriend up until the time of
his arrest; he had no contact with her since August, 2011.
[Appellant] knew that Gina would perform erotic entertainment
shows for money but denied any involvement in her business.
[Appellant] also denied assisting Gina in placing the ads on
Backpage. [Appellant] opined that officers associated his name
with the ads because Gina used his debit card, without his
knowledge, to pay for them. After discovering that Gina used
his card, [Appellant] cancelled that account.

[Appellant] also testified that the manager at the
Enterprise car rental place gave him a reduced rate for his rental
of the Cadillac. [Appellant] personally rented the car for several
months in early 2011. [Appellant] eventually discovered that
Gina often took his car keys and borrowed his car without his
permission when he worked. [Appellant] denied knowing that
Gina gave his car keys to Oravetz or Borandi so that they could
drive her around. Borandi had been Gina’s friend for about six
years, since before [Appellant] knew her, and Borandi helped her
place the ads for her business and also acted as her driver.
[Appellant] also moonlighted as a yellow cab driver throughout
this time. [Appellant] drove Gina around because she was his
girlfriend and needed transportation; she never paid him.

[Appellant] also testified about the night of the drug
“sting.” [Appellant] planned to have a date with Gina that night,
but Crystal Waz arrived and said that she booked an
appointment to do a show for the two of them. Gina then asked
[Appellant] to drive her and Crystal to the show. He agreed to
drive them to the South Hills Motel. Gina and Crystal went into
the hotel and [Appellant] waited for them in the cab. When they
returned to the cab, Gina said that she wanted to go and see
“Fresh.” Gina then gave directions, which [Appellant] followed.
[Appellant] denied using heroin himself, but he knew that Gina
was a heavy drug addict. [Appellant] did not see, or have any

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interaction with Fresh. [Appellant] then took Gina and Crystal to
their next appointment.

Concerning the ID card for William Jackson, [Appellant]
admitted he did not remember Mr. Jackson’s arrest until he
further investigated. The police report for Jackson’s 2008 arrest
states that Jackson did not have any identification with him that
night; [Appellant] agreed that Jackson had none. Sometime
after this arrest, [Appellant] remembered one of the security
guards in the area told [Appellant] that someone had found
Jackson’s ID card on the ground. The guard then handed the ID
card to [Appellant]. [Appellant] said that his intention was to
give Jackson back his ID card at his court hearing, but he did not
know why that did not happen.

Concerning the rented Cadillac, [Appellant] testified that
he spoke to Todd, the Enterprise manager, after the accident
and Todd told him that if the car was drivable that he could keep
renting it. [Appellant] spoke with his insurance agent about
coverage for the damage to the rental car. Yet, because he
rented the car for more than 30 days, State Farm would not
cover any damage. State Farm never made a payment to
Enterprise.

[Appellant] also provided testimony at trial of two
character witnesses. Mr. Jerrell Robinson, [Appellant’s] former
partner from the police department, testified that [Appellant]
had the reputation for being a good, wholesome person.
[Appellant] had compassion which sometimes other officers
lacked. Brian Van Dusen also used to work with [Appellant] in a
community program dealing with drug related issues. Mr. Van
Dusen testified that [Appellant] is known as a “good guy” with a
good reputation for being fair and operating “by the book[.”]
Further, [Appellant] is “an honest guy, he is fair, he is a giving
guy” and “a good person to speak to.”

Finally, … Gina Silla’s criminal history around the time of
this investigation of [Appellant] [was entered into evidence] via
a stipulation …. At CC 201014123, Gina was charged with
[several drug-related offenses]. On August 31, 2011, (right
after the undercover action where Gina acted as a CI in this
case), a magistrate dismissed these charges. At CC 201102713,
the Commonwealth charged Gina with DUI[-related offenses].
On August 31, 2011, … the Commonwealth nol[le] prossed these
charges. At CC 201106091, Gina was charged with [prostitution

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and drug-related offenses]. On November 17, 2011, Judge
Williams dismissed all charges. At case 201109861, [Gina was
charged with a drug offense and motor vehicle code violations].
These charges were also nol[le] prossed and dismissed by Judge
Williams on November 17, 2011. Lastly, at CC 201111082,
Judge Mariani dismissed [drug-related charges] in November of
2011.

Appellant’s Brief, at 10-20 (citations omitted).

On May 14, 2013, a jury convicted Appellant of the following offenses:

attempted insurance fraud (18 Pa.C.S. § 4117, 18 Pa.C.S. § 901),

conspiracy (delivery of heroin) (18 Pa.C.S. § 903(c)), delivery of a controlled

substance (heroin) (35 P.S. § 780-113(a)(30)), possession with intent to

deliver a controlled substance (heroin) (35 P.S. § 780-113(a)(30)),

possession of a controlled substance (heroin) (35 P.S. § 780-113(a)(16)),

obstructing administration of law or other governmental function (18 Pa.C.S.

§ 5101), false reports to law enforcement authorities (18 Pa.C.S. §

4906(b)(1)), and official oppression (18 Pa.C.S. § 5301).

On August 14, 2013, the trial court sentenced Appellant to a term of

3-6 years’ incarceration and a consecutive term of 7 years’ probation. Post-

sentence motions were denied following a hearing; however, no timely

appeal was filed immediately following that decision. Appellant then filed a

Post Conviction Relief Act Petition seeking reinstatement of his direct appeal

rights, which was granted by the court on January 8, 2014. Appellant filed a

timely, court-ordered Pa.R.A.P. 1925(b) statement on April 30, 2014, as well

as a supplemental Rule 1925(b) statement on July 7, 2014, following a delay

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in the production of transcripts. The trial court issued its Rule 1925(a)

opinion on October 10, 2014.

Appellant now presents the following questions for our review:

I. Did the trial court err in failing to grant the motion to sever
charges of Official Oppression from the remaining charges,
resulting in great prejudice to [Appellant]?

II. Was the evidence sufficient to support the conviction for
Official Oppression?

III. Was the evidence sufficient to support the drug trafficking
convictions when the charges were based solely upon the theory
that [Appellant] gave a ride to his drug-addict girlfriend?

Appellant’s Brief, at 7.

Appellant first challenges the denial of his pre-trial motion to sever

official oppression from the remaining charges. On May 3, 2013, Appellant

filed a motion to sever the charges of official oppression and a related

charge of making a false statement.2 Both charges related to Appellant’s

2008 arrest of William Jackson. Appellant asserts that by prosecuting these

charges along with the unrelated drug- and prostitution-related crimes, the

Commonwealth “painted [Appellant] with a broad brush that screamed ‘bad

cop’ to the jury[.]” Appellant’s Brief, at 23. In this regard, Appellant argues

that the trial court’s refusal to grant severance unduly prejudiced him to a

degree that prevented him from receiving a fair trial. We agree that the trial
____________________________________________

2
18 Pa.C.S. § 4904 (“Unsworn falsification to authorities”). The jury
ultimately acquitted Appellant of this charge, but found him guilty of official
oppression.

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court erred in denying the motion to sever, and that Appellant is entitled to

a new trial as a result.

Our standard of review regarding a trial court’s denial of a motion to

sever charges is whether the court abused its discretion. Commonwealth

v. Jones, 610 A.2d 931, 936 (Pa. 1992). A trial court “may order separate

trials of offenses or defendants, or provide other appropriate relief, if it

appears that any party may be prejudiced by offenses or defendants being

tried together.” Pa.R.Crim.P. 583. Relatedly, offenses involving a single

defendant may be tried together if: “(a) the evidence of each of the

offenses would be admissible in a separate trial for the other and is capable

of separation by the jury so that there is no danger of confusion; or (b) the

offenses charged are based on the same act or transaction.” Pa.R.Crim.P.

582.

Synthesizing these rules in Commonwealth v. Lark, 543 A.2d 491

(Pa. 1988), our Supreme Court set forth the following three-prong test for

deciding a motion to sever:

Where the defendant moves to sever offenses not based on the
same act or transaction that have been consolidated in a single
indictment or information, or opposes joinder of separate
indictments or informations, the court must therefore determine:
[1] whether the evidence of each of the offenses would be
admissible in a separate trial for the other; [2] whether such
evidence is capable of separation by the jury so as to avoid
danger of confusion; and, if the answers to these inquiries are in
the affirmative, [3] whether the defendant will be unduly
prejudiced by the consolidation of offenses.

Id. at 496–97 (“the Lark Test”).

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Here, the evidence supporting Appellant’s conviction for official

oppression included 1) the testimonial evidence of William Jackson regarding

his arrest; 2) the testimonial evidence of Detective Schopp regarding typical

Pittsburgh police procedures; and 3) William Jackson’s Pennsylvania ID

card.3 In concluding that it did not err in refusing to grant severance, the

trial court provided the following analysis in its Rule 1925(b) opinion:

This court did not abuse its discretion in refusing to sever the
2008 charges. The evidence of [Appellant]'s possession of
William Jackson's identification card, and how he came to
possess have been admissible in a trial on the other charges.
The ID card was found during the search of [Appellant]'s
apartment. Paraphernalia for the ingestion and packaging of
heroin was also found. Any evidence tending to demonstrate
that a [Appellant] resided, or had control over, a residence
where controlled substances or other contraband is found is
relevant. The ID card of Mr. Jackson, standing alone, would not
have been relevant. In fact, it could certainly have been used by
the defense to argue that others had access to, or control over,
the residence. The evidence explaining [Appellant]'s connection
to that ID, and how it came to be in his possession, was relevant
as "indicia" or proof of [Appellant]'s residency in the apartment.
The evidence was also capable of being separated by the jury
and was not likely to confuse them. Moreover, [Appellant]
suffered no prejudice in having the cases tried together.

Trial Court Opinion (TCO), 10/9/14, at 7-8.

We begin our own analysis with an examination of the facts as they

pertain to the first prong of the Lark Test. As is apparent from the trial

court’s analysis, the court did not consider whether Detective Schopp’s

____________________________________________

3
Where applicable, these three items are collectively referred to as the
“evidence of official oppression.”

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testimony would have been admissible in a separate trial for the drug-

related offenses for which Appellant was convicted. The court only

considered the admissibility of Jackson’s testimony and his ID card at a

separate trial for Appellant’s drug-related offenses. Additionally, the trial

court does not at all discuss how the evidence of official oppression was

admissible in a separate trial for attempted insurance fraud. After our own

careful consideration of the record, we conclude that evidence of Detective

Schopp’s testimony regarding Pittsburgh police policy would not be relevant

in separate trials for Appellant’s drug-related offenses or insurance fraud,

and none of the evidence of official oppression would be admissible in a

separate trial for attempted insurance fraud.

Moreover, the trial court only conducted a one-directional analysis.

The trial court did not consider whether any of the drug-related evidence, or

evidence of attempted insurance fraud, would be admissible for any purpose

in a separate trial for official oppression. It is immediately apparent that

such evidence would not be admissible in a separate trial for official

oppression. Even though Jackson’s ID card was discovered in a search

conducted pursuant to an investigation into Appellant’s drug-related

charges, the drug-related evidence was not relevant to any issue that could

arise during a separate trial for official oppression.

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Appellant’s drug-related crimes and official oppression offense also did

not, in any sense, constitute a single criminal episode. 4 In determining

whether offenses constitute a single criminal episode, courts consider: “(1)

the temporal sequence of events; (2) the logical relationship between the

acts; and (3) whether they share common issues of law and fact.” Lane,

658 A.2d at 1355. Here, the offense of official oppression arose out of

Appellant’s arrest of Jackson in 2008, whereas Appellant’s drug-related

offenses pertain to events occurring in 2011. There is no logical relationship

between these criminal acts. The only nexus of facts between the offenses

is trivial, as the discovery of Jackson’s ID occurred during a search of

Appellant’s home in 2011. No common issues of law are present.

Accordingly, these separate offenses did not arise out of a single criminal

episode.

The Commonwealth concedes that the joined offenses did not arise out

of the same criminal episode. Commonwealth’s Brief, at 15 (“These charges

did not arise from the same act or transaction as others in the
____________________________________________

4
Evidence of one crime that might otherwise be inadmissible in a separate
trial for another crime may be admissible in a joint trial for both offenses if
both offenses arise from a single criminal episode. Commonwealth v.
Lane, 658 A.2d 1353, 1355 (Pa. Super. 1995). This is to prevent
harassment by the prosecution in the form of successive prosecutions for
offenses that arise out of a single criminal episode even though they involve
distinct facts. See 18 Pa.C.S. § 110(1)(ii) (barring a new prosecution for
“any offense based on the same conduct or arising from the same criminal
episode” that formed the basis of a former prosecution that resulted in
conviction or acquittal).

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Information.”). The Commonwealth contends, however, that Jackson’s ID

card and testimony related to Jackson’s arrest was admissible at separate

trials. However, much like the trial court, the Commonwealth simply

overlooks the admissibility of the significant amount of drug-related

evidence and testimony in a separate trial for official oppression, and then

analyzes jury confusion and prejudice issues premised exclusively on

Jackson’s testimonial evidence and physical evidence, his ID, under the

second and third prongs of the Lark Test. Yet, having determined that

much of the evidence of Appellant’s drug-related offenses was inadmissible

in a separate trial for official oppression, we do not even reach beyond the

first prong of the Lark Test.

Accordingly, we conclude that the trial court erred in denying

Appellant’s pre-trial motion to sever official oppression from the remaining

charges as it is clear that the first prong of Lark could not be satisfied in this

case. As such, we are compelled to reverse Appellant’s judgment of

sentence and remand for new, separate trials.

Despite reaching this disposition, we are still obligated to address

Appellant’s remaining sufficiency claims. Our standard of review of

sufficiency claims is well-settled:

A claim challenging the sufficiency of the evidence is a question
of law. Evidence will be deemed sufficient to support the verdict
when it establishes each material element of the crime charged
and the commission thereof by the accused, beyond a
reasonable doubt. Where the evidence offered to support the
verdict is in contradiction to the physical facts, in contravention
to human experience and the laws of nature, then the evidence

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is insufficient as a matter of law. When reviewing a sufficiency
claim[,] the court is required to view the evidence in the light
most favorable to the verdict winner giving the prosecution the
benefit of all reasonable inferences to be drawn from the
evidence.

Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000) (internal

citations omitted).

Appellant’s first sufficiency challenge concerns the evidence

supporting his conviction for official oppression. Essentially, Appellant

argues that there was insufficient evidence for that offense because he

lawfully arrested Jackson, regardless of his compliance with police policy that

would have permitted him to merely issue a citation for charged offenses.

We agree.

Official oppression is defined as follows:

A person acting or purporting to act in an official capacity or
taking advantage of such actual or purported capacity commits a
misdemeanor of the second degree if, knowing that his conduct
is illegal, he:

(1) subjects another to arrest, detention, search, seizure,
mistreatment, dispossession, assessment, lien or other
infringement of personal or property rights; or

(2) denies or impedes another in the exercise or
enjoyment of any right, privilege, power or immunity.

18 Pa.C.S. § 5301.

Jackson entered a guilty plea to disorderly conduct and public

intoxication, the charges for which he was arrested by Appellant in 2008.

N.T., 5/7/2013 - 5/14/2013, at 162-63; 167-68. Although both crimes were

graded as summary offenses for purposes of Jackson’s plea, disorderly

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conduct may be graded as “a misdemeanor of the third degree if the intent

of the actor is to cause substantial harm or serious inconvenience, or if he

persists in disorderly conduct after reasonable warning or request to desist.”

18 Pa.C.S. § 5503(b). A police officer may make a warrantless arrest for a

misdemeanor if he has probable cause to believe that the offense is being

committed in his presence. Commonwealth v. Reeves, 297 A.2d 142, 143

(Pa. Super. 1972).

In finding the evidence sufficient to support the jury’s verdict on

official oppression, the trial court does not discuss the legality of Jackson’s

arrest. Instead, the trial court states that the jury could have found all the

elements of official oppression were met if the jury believed that Appellant

“lied in the police report and affidavit of probable cause and, thereby,

caused Mr. Jackson to be arrested and jailed.” TCO, at 14. In its brief, the

Commonwealth agrees that this was the theory of guilt pursued by the

prosecution at Appellant’s trial:

The Commonwealth’s position at trial was that because an
individual with an identification card normally would not be taken
to jail for the offenses of public intoxication and disorderly
conduct (those charged against Jackson) if he had a valid
identification card, [A]ppellant’s action in taking Jackson’s ID
card caused Jackson to be jailed.

Commonwealth’s Brief, at 20 (emphasis in original).

Consistent with our standard of review, this Court must resolve any

credibility issues in favor of the Commonwealth’s theory of guilt. Thus, we

assume for purposes of our sufficiency analysis that Appellant did not

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inadvertently come into possession of Jackson’s ID card as Appellant claimed

during his trial. Rather, we must assume that Appellant intentionally took

possession of Jackson’s ID during the arrest and then failed to subsequently

return it to him.

The Commonwealth does not appear to dispute that Jackson

committed an arrestable offense, but still maintains that the arrest itself was

the harm inflicted by Appellant’s conduct. Thus, the Commonwealth’s theory

of guilt hinges on the likelihood of Jackson’s incarceration in the absence of

Appellant’s bad conduct, rather than on the legality of the arrest itself. If,

however, Jackson could have been arrested regardless of whether he

possessed his ID card, then it strains logic to conclude that Appellant’s bad

conduct caused Jackson’s arrest/incarceration.

Neither the Commonwealth nor the trial court provides any case law

supporting the theory of guilt for which Appellant was convicted of official

oppression. Indeed, the Commonwealth acknowledges that some support

for Appellant’s claim may be found in Commonwealth v. Baranyai, 419

A.2d 1368 (Pa. Super. 1980). Baranyai, a police officer, was convicted of

official oppression based on circumstances surrounding his arrest of David

Stier for DUI and resisting arrest, which included Baranyai’s arguably

excessive use of force to overcome Stier’s purported resistance to arrest.

Stier accepted Accelerated Rehabilitative Disposition (ARD) with regard to

DUI and resisting arrest. In light of that disposition, Baranyai argued on

appeal that his conviction for official oppression was barred by collateral

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estoppel, contending that Stier’s acceptance of ARD effectively demonstrated

the legality of the arrest. The Superior Court rejected Baranyai’s argument

because Stier’s acceptance of ARD “did not constitute an adjudication of

guilt” and because “the Commonwealth and not [Baranyai] was the other

party in that criminal action.” Baranyai, 419 A.2d at 1373.

Here, the Commonwealth notes that because the Baranyai Court

dismissed Baranyai’s collateral estoppel claim on two separate grounds, it is

unclear whether it would have ruled differently if Stier had pled guilty, as

Jackson did in this case. In our own analysis, Baranyai is also

distinguishable because Baranyai violently assaulted Stier while arresting

him for DUI, a fact that was pertinent to both Stier’s resisting arrest charge

and Baranyai’s official oppression charge. Here, however, Appellant’s

purported theft of Jackson’s ID did not directly or indirectly impact the

elements of the crimes for which Jackson was charged, arrested, and to

which he ultimately pled guilty. In light of these differences, Baranyai

could certainly be read as persuasive support of Appellant’s argument; but,

ultimately, the Baranyai decision was too light on analysis of the collateral

estoppel claim to be controlling in this matter.

Both parties also discuss Commonwealth v. Eisemann, 453 A.2d

1045 (Pa. Super. 1982), but arrive at opposite conclusions as to

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Eisemann’s import. The facts in Eisemann are not at all analogous to the

instant matter.5 However, in that case, this Court articulated that,

in order to constitute the offense of “Official Oppression[,”] the
person acting in the “official capacity” must knowingly and
illegally deny or impede another in the exercise of some
“right[,”] “power” or “immunity[,”] or must knowingly and
illegally subject another to “arrest, detention, search, seizure,
mistreatment, dispossession, assessment, lien or other
infringement of personal or property rights[.”] [Emphasis—
ours.][6] We hold that the word “knowing” means that the
accused must have been acting in “bad faith” when he subjected
the other to the proscribed activities.

Id. at 1048.

The Commonwealth asserts that Appellant’s theft of Jackson’s ID

constitutes ‘bad faith’ because, as a 16-year veteran of the Pittsburgh Police

force, he would have known that Jackson was likely to have been treated

differently had Appellant not deprived him of his ID. Appellant argues,

however, that irrespective of his apparent ‘bad faith’, Jackson had neither a

privilege nor a right to not be arrested for an arrestable offense, nor did he

have any cognizable immunity from arrest. The Commonwealth appears to

concede this point, admitting that “Jackson had no ‘right’ not to answer to

the criminal justice system for criminal behavior[.]” Commonwealth’s Brief,
____________________________________________

5
Eisemann was “a private prosecutor who want[ed] to charge the mayor
and four council members of the City of Lock Haven, Pennsylvania, with”
official oppression for refusing to answer his questions at a public meeting.
Id. at 1046. Eisemann asserted that any attempt to limit his speech at the
meeting constituted official oppression.
6
Bracketed comment in original.

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at 22. Instead, the Commonwealth contends, “what [Jackson] could be said

to have had was an expectation, supported by police practice, that by

providing proper identification, he would not be taken to jail.” Id.

When reviewing the scope of the official oppression statute, we must

adhere to the following principles:

[P]enal statutes are to be strictly construed. The need for strict
construction does not require that the words of a penal statute
be given their narrowest possible meaning or that legislative
intent be disregarded, nor does it override the more general
principle that the words of a statute must be construed
according to their common and approved usage[.] It does
mean, however, that where ambiguity exists in the language of a
penal statute, such language should be interpreted in the light
most favorable to the accused. More specifically, where doubt
exists concerning the proper scope of a penal statute, it is the
accused who should receive the benefit of such doubt.
Significantly, a court may not achieve an acceptable construction
of a penal statute by reading into the statute terms that broaden
its scope.

Commonwealth v. Booth, 766 A.2d 843, 846 (Pa. 2001) (internal citations

omitted).

In our view, the plain meaning of Section 5301 does not aim to

criminalize the denial or impediment of mere expectations, even where such

expectations arise out of long-standing police policies or practices. And,

even if the statute could be interpreted to protect such expectations in

defiance of its plain meaning and the principle of lenity, there is no evidence

of record that Jackson actually held such an expectation. Moreover, as

discussed above, Jackson was lawfully arrested, and could have been

lawfully arrested even if Appellant had not taken his ID card. Accordingly,

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we conclude that there was insufficient evidence to support Appellant’s

conviction for official oppression.

Before we address Appellant’s second sufficiency claim, which

concerns his drug-trafficking convictions, we must first address whether he

has waived a challenge to the sufficiency of the evidence supporting his

conviction for conspiracy to commit those offenses. The Commonwealth

contends Appellant waived any sufficiency challenge to that offense by

failing to raise the matter in his Rule 1925(b) statement, a position taken by

the trial court in its Rule 1925(a) opinion. See Commonwealth v. Lord,

719 A.2d 306, 309 (Pa. 1998) (“Any issues not raised in a 1925(b)

statement will be deemed waived.”). Appellant pleads that we entertain this

issue on appeal because if prior appellate counsel had in fact waived a

challenge to the sufficiency of his conspiracy conviction, prior counsel’s

failure would constitute a clear case of record-based ineffective assistance of

counsel. However, because we conclude that Appellant’s Rule 1925(b)

adequately, if inartfully, preserved the challenge to his conspiracy

conviction, we conclude that Appellant did not waive the claim.

We must acknowledge that Appellant did not clearly and

unambiguously set forth a separate and distinct claim challenging the

sufficiency of the evidence supporting his conspiracy conviction in his Rule

1925(b) statement. However, Appellant’s sufficiency challenge to his drug-

trafficking convictions was raised as follows:

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Insufficient Evidence: Delivery of [a Controlled
Substance] Appellant’s state and federal due process rights,
see U.S. Const. amend. XIV and Pa. Const. art. I § 9, were
violated when he was convicted of Delivery of a Controlled
Substance (35 P.S. § 780-113(a)(30)) on or about August 27,
2011. Acquittal on the charge of Possession of a Controlled
Substance with Intent to Deliver ought to have been voted by
Appellant’s jury since the Commonwealth failed to prove, beyond
a reasonable doubt, either (a) that Appellant, or a person for
whose conduct Appellant was legally responsible, possessed the
controlled substance of heroin on August 27, 2011, or (b) that
Appellant, or a person for whose conduct Appellant was legally
responsible, delivered to another person the possessed
[controlled substance] on August 27, 2011 by either Appellant or
a person for whose conduct Appellant was legally responsible.

Appellant’s Pa.R.A.P. 1925(b) Statement, 4/30/14, at 4-5 ¶ 7.

The Commonwealth never asserted at trial that Appellant acted as a

principle in the commission of the drug-trafficking offense for which he was

convicted. Accordingly, the only theories of his guilt pursued concerned

Appellant’s role as an accomplice or a co-conspirator to drug-trafficking for

his assisting of Gina in her endeavor to acquire heroin from “Fresh” on

behalf of Detective Naylor. While inartfully drafted, Appellant’s delivery-of-

a-controlled-substance sufficiency claim does raise the matter of his

culpability as a co-conspirator or accomplice by repeatedly referencing “or a

person for whose conduct Appellant was legally responsible.” Id. No other

basis for the inclusion of that repeated phrase is possible. Therefore, when

read in the context of the instant case, Appellant’s above-quoted statement

of the issue does not appear to abandon a challenge to his conspiracy

conviction as found by the trial court and argued by the Commonwealth.

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Indeed, given the factual and procedural posture of this case, a

challenge to the sufficiency of the drug-trafficking conviction would be

meaningless in the absence of a challenge to the related conspiracy

conviction. Accordingly, to apply Lord’s waiver in this instance would be

excessively harsh and unjust, as Appellant clearly made some attempt to

preserve a conspiracy-based sufficiency challenge to his drug-trafficking

convictions. Thus, we hold that Appellant did not waive consideration of the

sufficiency of the evidence supporting his conviction for conspiracy.

Regardless of this waiver issue, however, Appellant’s sufficiency

challenge to his drug-trafficking-related convictions is meritless. It is

axiomatic that “conspirators are liable for acts of co-conspirators committed

in furtherance of the conspiracy.” Commonwealth v. Lambert, 795 A.2d

1010, 1016 (Pa. Super. 2002) (en banc).

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; …

18 Pa.C.S. § 903(a). In addition to the conspiratorial agreement, “[n]o

person may be convicted of conspiracy to commit a crime unless an overt

act in pursuance of such conspiracy is alleged and proved to have been done

by him or by a person with whom he conspired.” 18 Pa.C.S. § 903.

The essence of a criminal conspiracy is the common
understanding that a particular criminal objective is to be
accomplished. Mere association with the perpetrators, mere
presence at the scene, or mere knowledge of the crime is

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insufficient. Rather, the Commonwealth must prove that the
defendant shared the criminal intent, i.e., that [he] was “an
active participant in the criminal enterprise and that he had
knowledge of the conspiratorial agreement.” The defendant
does not need to commit the overt act; a co-conspirator may
commit the overt act.

A conspiracy is almost always proved through
circumstantial evidence. “The conduct of the parties and the
circumstances surrounding their conduct may create ‘a web of
evidence’ linking the accused to the alleged conspiracy beyond a
reasonable doubt.” The evidence must, however, “rise above
mere suspicion or possibility of guilty collusion.”

Lambert, 795 A.2d at 1016 (citations omitted).

To distinguish between an actual conspiracy and ‘mere suspicion or

possibility of guilty collusion,’ this Court considers the following factors:

(1) an association between alleged conspirators; (2) knowledge
of the commission of the crime; (3) presence at the scene of the
crime; and (4) in some situations, participation in the object of
the conspiracy. The presence of such circumstances may furnish
a web of evidence linking an accused to an alleged conspiracy
beyond a reasonable doubt when viewed in conjunction with
each other and in the context in which they occurred.

Id.

In the instant case, and in reference to the above-listed factors, we

surmise the following: (1) Appellant’s prior association with Gina is

undisputed. (2) Appellant knew that Gina used heroin, and that the purpose

of their trip to see “Fresh” was for Gina to procure heroin, and then

Appellant would return Gina to the hotel with the contraband for use by her

and “Scott,” the cover name for Detective Naylor. (3) While Appellant was

not present when Gina acquired the heroin from “Fresh” or delivered it to

“Scott,” he was certainly present during the transportation of the narcotics.

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(4) Appellant can also be said to have participated in the object of the

conspiracy, which was the purchase, transport, and delivery of heroin.

Appellant participated in all three aspects of that objective by providing

transportation to Gina with full knowledge that he was doing so in order to

facilitate Gina’s purchase and delivery of heroin. Finally, Gina undertook

overt acts in furtherance of the conspiracy by purchasing and delivering the

heroin, and Appellant committed an overt act in furtherance of the

conspiracy by providing her transportation for those activities with full

knowledge of what was occurring. Thus, the evidence was sufficient to

support Appellant’s conviction for conspiracy. Consequently, the evidence

was sufficient to support Appellant’s drug-trafficking convictions as well.

For the same reasons, Appellant was also culpable as an accomplice.

“A person is an accomplice of another person in the commission of an

offense if: (1) with the intent of promoting or facilitating the commission of

the offense, he: … (ii) aids or agrees or attempts to aid such other person in

planning or committing it ….” 18 Pa.C.S. § 306(c). As discussed above,

Appellant aided Gina in her commission of drug-trafficking offenses.

Appellant argues that he was “merely a driver for his girlfriend[,]” and

that she “made all decisions and handled all transactions.” Appellant’s Brief,

at 52. However, Appellant admitted his knowledge of Gina’s criminal

enterprise, and facilitated it by providing her transportation. That Appellant

was not an equal partner in that enterprise does not relieve him of

culpability. There was a common understanding that drug-trafficking

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offenses would be committed, and overt acts were taken by both Gina and

Appellant in furtherance of that tacit conspiratorial agreement. Appellant

was not merely present during those offenses, nor was he merely

knowledgeable that they would occur.

In summary, we conclude that the trial court erred when it denied

Appellant’s pre-trial motion to sever official oppression from the remaining

charges. As such, we vacate Appellant’s judgment of sentence and remand

for a new trial(s). However, because we conclude that there was insufficient

evidence of official oppression, Appellant cannot be retried for that offense.

See Commonwealth v. McMullen, 721 A.2d 370, 374 (Pa. Super. 1998)

(recognizing that “the double jeopardy clause will bar retrial when a

conviction is reversed ‘because of insufficiency of the evidence’”). We also

conclude that there was no merit to Appellant’s challenge to the sufficiency

of the evidence supporting his drug-trafficking and conspiracy offenses;

thus, Appellant may be retried for those offenses.

Conviction for official oppression reversed. Judgment of sentence

vacated. Case remanded for a new trial(s), consistent with the holdings in

this memorandum. Jurisdiction relinquished.

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Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/28/2015

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