Com. v. Milazzo, R.

J-S63019-15 & J-S63020-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee

v.

ROBERT MILAZZO

Appellant No. 555 EDA 2015

Appeal from the Judgment of Sentence September 15, 2014
In the Court of Common Pleas of Monroe County
Criminal Division at No(s): CP-45-CR-0000126-2014

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee

v.

ROBERT MILAZZO

Appellant No. 557 EDA 2015

Appeal from the Judgment of Sentence September 15, 2014
In the Court of Common Pleas of Monroe County
Criminal Division at No(s): CP-45-CR-0000975-2014

BEFORE: DONOHUE, J., MUNDY, J., and MUSMANNO, J.

MEMORANDUM BY MUNDY, J.: FILED DECEMBER 21, 2015

Appellant, Robert Milazzo, appeals from the September 15, 2014

aggregate judgment of sentence of 36 to 72 months’ imprisonment imposed

following his convictions for two counts each of insurance fraud, criminal

conspiracy, and false reports and one count each of criminal use of
J-S63019-15

communication facility, unsworn falsification to authorities, and obstruction

of administration of law.1 After careful review, we affirm.

We summarize the relevant factual and procedural background of this

case as follows. In October or November 2013, Appellant moved into 9493

Juniper Drive in Tobyhanna, Pennsylvania, the rented home of his cousin,

Harley DiMartino, and Jennifer Sherwood, DiMartino’s girlfriend. N.T.,

7/8/14, at 109-110. On December 12, 2013, Appellant purchased a renter’s

insurance policy through American Strategic Insurance Corporation (ASI).

Id. at 172-174. Sherwood and DiMartino left the home a day or two before

Christmas to visit family over the holiday season. Id. at 111. Brenda

Spagnola, a friend of Sherwood, agreed to take care of Sherwood’s cats

while the couple were away for the holidays. Id. at 35, 112. On December

27, 2013, Appellant spoke with Spagnola three times on the phone. Id. at

35. Appellant told Spagnola, during the second phone conversation, that

there was a notice on the door of his residence to vacate the premises within

ten days due to nonpayment of rent. Id. at 37. The third time Appellant

called Spagnola, he directed her to feed and clean up after Sherwood’s cats.

Id. When Spagnola arrived to feed the cats that evening, between

approximately 8:00 and 8:30 p.m., Appellant was there, and she noticed

____________________________________________

1
18 Pa.C.S.A. §§ 4117(a)(2),(3), 903(c), 4906(a),(b)(1), 7512(a),
4904(a)(1), and 5101, respectively.

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cabinets in the home were open and different areas of the residence were in

disarray. Id. at 38, 40-44. Appellant informed Spagnola that “they were

planning to rob the house” in order to collect from his renter’s insurance

policy and avoid eviction. Id. at 42. He then asked Spagnola to return to

the residence the following day and act as if she discovered the house had

been burglarized. Id. at 44.

Following this encounter, Spagnola called the police and informed

them of the anticipated staged break-in. Id. at 45-48. At approximately

9:40 a.m., on December 28, 2013, Officer Scott Dunlap of the Pocono

Mountain Regional Police Department received a dispatch directing him to

Appellant’s residence for a suspected burglary. Id. at 67. Appellant

informed Officer Dunlap that he was out of the home from 9:00 p.m. the

previous evening until 9:00 a.m. that day and that his tools and a large, flat-

screen television were missing. Id. at 68, 76. That same day, Appellant

called ASI to report the claim. Id. at 175. On January 3, 2014, Appellant

went to the Pocono Mountain Regional Police Department seeking the police

report in order to provide said report to ASI. Id. at 104- 105. He informed

Officer Mark Andersen that over $50,000.00 worth of home electronics and

construction equipment were stolen. Id. at 107. Ultimately, he alleged to

ASI that he lost in excess of $15,000.00 worth of property, but he could not

provide proof of ownership. Id. at 184, 186. ASI denied Appellant’s claim

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based on his failure to provide necessary documentation supporting his claim

and misrepresentation. Id. at 189-190.

On February 10, 2014, the Commonwealth filed an information

charging Appellant with one count each of criminal use of communication

facility, possession of an instrument of crime, criminal mischief, and

intimidation of witnesses2 and two counts each of insurance fraud,

conspiracy, false reports, and unsworn falsifications to authorities at docket

number CP-45-CR-126-2014.

Subsequent to the filing of said charges against Appellant, he sent a

letter to DiMartino directing him to notarize and send new statements

recanting the statements he and Sherwood gave to police during the

investigation and discouraging DiMartino from showing up for court. Id. at

209-215. He further advised DiMartino not to speak with Spagnola unless it

was to convince Spagnola to refuse to appear in court to testify against him.

Id. at 215. Appellant enclosed with the letter a proposed statement written

from DiMartino’s perspective which read, in part, “[i]n no way, shape, or

form did we conspire with or agree to file any false reports to police with

[Appellant] before or after the burglary took place.”3 Id. at 216. At

____________________________________________

2
18 Pa.C.S.A. §§ 907(a), 3304(a)(5), and 4952(a)(1), respectively.
3
The letter was admitted into evidence and read verbatim for the jury
during trial.

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DiMartino’s preliminary hearing, on March 5, 2014, DiMartino informed

Officer Derek Metzger of the letter and its contents and turned it over to

police custody.4 Id. at 203-205. Following the discovery of the letter, the

Commonwealth filed a second information, on May 21, 2014, charging

Appellant with two counts of intimidation of witnesses and one count of

obstruction of administration of law at docket number CP-45-CR-975-2014.

On July 8, 2014, Appellant stood trial on the charges at both docket

numbers.5 On July 10, 2014, at the conclusion of the trial, the jury found

Appellant guilty of two counts each of insurance fraud, criminal conspiracy,

and false reports and one count each of criminal use of communication

facility, unsworn falsification to authorities at docket number CP-45-CR-126-

2014.6 At docket number CP-45-CR-975-2014, the jury found him guilty of

obstruction of administration and not guilty on each count of intimidation of

witnesses. On September 15, 2014, the trial court, by two separate orders,

sentenced Appellant to an aggregate term of 36 to 72 months’

____________________________________________

4
The Commonwealth charged both DiMartino and Sherwood with two counts
each of criminal conspiracy. They were both admitted into the Accelerated
Rehabilitative Disposition program (ARD) and do not have appeals pending
in this matter.
5
The Commonwealth elected to join the two cases for trial pursuant to
Pennsylvania Rule of Criminal Procedure 582.
6
The jury found Appellant not guilty of intimidation of witnesses, and the
Commonwealth withdrew the remaining charges on that docket number.

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imprisonment.7 On September 25, 2014, Appellant filed post-sentence

motions challenging the convictions on both docket numbers.8 The trial

court entertained oral argument on the motions on December 29, 2014. On

January 29, 2015, the trial court denied Appellant’s post sentence-motion by

order and opinion.9 Thereafter, Appellant filed two timely notices of appeal

____________________________________________

7
Specifically, the trial court sentenced Appellant to 12 to 24 months’
imprisonment for each count of insurance fraud, to run consecutively; 6-12
months’ imprisonment for false reports-fictitious reports, to run
consecutively to the terms of imprisonment for insurance fraud; 12 to 24
months’ imprisonment for criminal use of communication facility, to be
served concurrently; 6-12 months’ imprisonment for each of the following
offenses false reports-falsely incriminating another, conspiracy to commit
false reports, unsworn falsifications to be served concurrently; and the trial
court imposed no penalty for Appellant’s conviction for conspiracy to commit
insurance fraud. The trial court separately sentenced Appellant to 6 to 12
months’ imprisonment for obstruction of administration of law, “to run
consecutively to the sentences imposed in case No. 126 Criminal 2014 for
a[n] aggregate sentence of 36 months [to] 72 months.” Trial Court Order,
9/15/14.
8
Initially, Appellant’s counsel filed a post-trial motion on September 11,
2014, which the trial court denied as premature on September 12, 2014.
Additionally, Appellant filed several pro se motions following his trial, which
were forwarded to his counsel pursuant to Pennsylvania Rule of Criminal
Procedure 576(a)(4).
9
We note the trial court initially scheduled argument on the motion for
December 15, 2014. Trial Court Order, 9/29/14. Appellant moved for a
continuance, which the trial court granted on November 12, 2014, and the
trial court rescheduled the argument for December 29, 2014. Trial Court
Order, 11/12/14.

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on February 27, 2015.10 We have sua sponte consolidated these appeals

pursuant to Pa.R.A.P. 513.11

At 555 EDA 2015, Appellant raises the following issues for our

consideration.

[1]. Did the trial court abuse its discretion by not to
[sic] setting aside the verdict as to [c]riminal [u]se
of [c]ommunication [f]acility in that there was
insufficient evidence to convict Appellant of the
crime, where the Commonwealth failed to show that
[] Appellant either filed a claim, requested a claim to
be filed, or was part of an agreement of a
conspiracy?

[2]. Did the trial court abuse its discretion by not to
[sic] setting aside the verdict as to [c]riminal [u]se
of [c]ommunication [f]acility in that the verdict was
against the weight of the evidence in that the
Commonwealth failed to prove that [] Appellant
either filed a claim, requested a claim to be filed, or
was part of an agreement of a conspiracy?

[3]. Did the trial court abuse its discretion by not to
[sic] setting aside the verdict as to [i]nsurance
[f]raud, in that there was insufficient evidence to
convict [A]ppellant of the crime, where the
Commonwealth failed to show that [] Appellant
either filed a claim, requested a claim to be filed, or
was part of an agreement of a conspiracy?

____________________________________________

10
Appellant and the trial court have complied with Pennsylvania Rule of
Appellate Procedure 1925.
11
We will hereafter refer to CP-45-CR-126-2014 by Superior Court docket
number 555 EDA 2015 and CP-45-CR-975-2014 by Superior Court docket
number 557 EDA 2015.

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[4]. Did the trial court abuse its discretion by not to
[sic] setting aside the verdict as to [i]nsurance
[f]raud, in that the verdict was against the weight of
the evidence where the Commonwealth failed to
prove that []Appellant either filed a claim, requested
a claim to be filed, or was part of an agreement of a
conspiracy?

[5]. Did the trial court abuse its discretion by not to
[sic] setting aside the verdict as to [f]alse [r]eports,
in that there was insufficient evidence to convict
[A]ppellant of the crime, where the Commonwealth
failed to show that [] Appellant either filed a claim,
requested a claim to be filed, or was part of an
agreement of a conspiracy?

[6]. Did the trial court abuse its discretion by not
setting aside the verdict as to [c]onspiracy regarding
[f]alse [r]eports to [l]aw [e]nforcement in that there
was insufficient evidence to convict Appellant of the
crime, where the Commonwealth failed to show that
[] Appellant was part of an agreement of a
conspiracy?

7. Did the trial court err when running Appellant’s
sentences concurrently for [f]alse [r]eport-[f]alsely
[i]ncriminating [a]nother and [f]alse [r]eport when
sentences should have merged?

Appellant’s Brief (555 EDA 2015) at 5-6.

In Appellant’s first four issues, he purports to challenge both the

sufficiency and weight of the evidence supporting his convictions for criminal

use of communication facility and insurance fraud. However, in each distinct

argument section, he merely reproduces the identical argument. Therefore,

we elect to address all four of these issues together. First, we address

issues one and three to determine if the evidence was sufficient to support

said convictions. We are bound by the following standard of review.

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The standard we apply in reviewing the sufficiency of
the evidence is whether viewing all the evidence
admitted at trial in the light most favorable to the
verdict winner, there is sufficient evidence to enable
the fact-finder to find every element of the crime
beyond a reasonable doubt. In applying the above
test, we may not reweigh the evidence and
substitute our judgment for the fact-finder. In
addition, we note that the facts and circumstances
established by the Commonwealth need not preclude
every possibility of innocence. Any doubts regarding
a defendant’s guilt may be resolved by the fact-
finder unless the evidence is so weak and
inconclusive that as a matter of law no probability of
fact may be drawn from the combined
circumstances. The Commonwealth may sustain its
burden of proof of proving every element of the
crime beyond a reasonable doubt by means of wholly
circumstantial evidence. Moreover, in applying the
above test, the entire record must be evaluated and
all the evidence actually received must be
considered. Finally, the trier of fact[,] while passing
on the credibility of the witnesses and the weight of
the evidence produced, is free to believe all, part[,]
or none of the evidence.

Commonwealth v. Young, 120 A.3d 299, 311 (Pa. Super. 2015) (citation

omitted).

As noted, in issues one and three, Appellant argues there was

insufficient evidence to convict him of insurance fraud and criminal use of

communication facility. Appellant’s Brief (555 EDA 2015) at 10, 16. The

relevant statutes provide as follows.

§ 4117. Insurance fraud

(a) Offense defined.-- A person commits an
offense if the person does any of the following:

…

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(2) Knowingly and with the intent to defraud
any insurer or self-insured, presents or causes
to be presented to any insurer or self-insured
any statement forming a part of, or in support
of, a claim that contains any false, incomplete
or misleading information concerning any fact
or thing material to the claim.

(3) Knowingly and with the intent to defraud
any insurer or self-insured, assists, abets,
solicits or conspires with another to prepare or
make any statement that is intended to be
presented to any insurer or self-insured in
connection with, or in support of, a claim that
contains any false, incomplete or misleading
information concerning any fact or thing
material to the claim, including information
which documents or supports an amount
claimed in excess of the actual loss sustained
by the claimant.

…

18 Pa.C.S.A. § 4117(a)(2), (3).

§ 7512. Criminal use of communication facility

(a) Offense defined.—A person commits a felony
of the third degree if that person uses a
communication facility to commit, cause or facilitate
the commission or the attempt thereof of any crime
which constitutes a felony under this title or under
the act of April 14, 1972 (P.L. 233, No. 64), known
as The Controlled Substance, Drug, Device and
Cosmetic Act. Every instance where the
communication facility is utilized constitutes a
separate offense under this section.

…

(c) Definition. – As used in this section, the term
“communication facility” means a public or private
instrumentality used or useful in the transmission of

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signs, signals, writing, images, sounds, data or
intelligence of any nature transmitted in whole or in
part, including, but not limited to telephone, wire,
radio, electromagnetic, photoelectronic or photo-
optical systems or the mail.

Id. § 7512 (footnote omitted).

Specifically, Appellant argues that he merely “inquire[d] about

reporting a claim[]” and “did not provide any paperwork requested by the

[i]nsurance [c]ompany to open a claim.” Appellant’s Brief (555 EDA 2015)

at 10, 16. In essence, Appellant argues that because he never submitted

formal paperwork in support of his claim of loss to ASI, he cannot be

convicted of either offense. Id. at 16. For the following reasons, we

disagree.

First, we note there is nothing in Section 4117 that requires a claim to

be submitted in writing in order to satisfy the elements of the crime. 18

Pa.C.S.A. § 4117. Furthermore, at trial, the Commonwealth presented the

testimony of Paula Johns, a special investigator with the insurance company.

Johns became involved in this case because the policy was purchased

December 12, 2013 and the loss was reported shortly thereafter on

December 28, 2013. N.T., 7/8/14, at 173-174. She explained how ASI

processes claims as follows.

[The Commonwealth]:

Q. Could you briefly explain what happens on
an insurance claim when a claim is submitted against
an insurance policy?

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[Johns]:

A. Yes. You have a loss, whether it be a fire,
natural, catastrophic, whatever, you call it in. A
customer service rep gets it, gets the information
from you. It’s assigned to a staff adjuster, and if it
needs an independent adjuster, which means
someone in the field, or if that particular company
has someone that lives in the area, an adjuster will
contact you, go over the particulars, come out and
do an inspection, gather all the pertinent
information, gather all the pertinent documents from
you, and then the process will continue on where
determination and coverage and verification is done,
and then payments are issued accordingly.

N.T., 7/8/14, at 172-173. She further testified, “this claim was called in on

12/28/2013 at 11:54 a.m.” Id. at 175. She outlined her personal

involvement with Appellant as follows.

[The Commonwealth]:

Q. Okay. And had you reviewed information
[Appellant] provided with regard to the loss prior to
speaking with him?

[Johns]:

A. Yes. I provided only what was called in to
the customer service representative.

Q. And when you finally did speak with
[Appellant], what did you say, and what did he say?

A. Introduced myself, let him know that I was
working with the inside adjuster, requested to know
what occurred in his own words.

Q. And what did he tell you?

A. He told me that he had roommates and that
they were out of town and that he was away. He

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J-S63019-15

talked about a girlfriend, and I asked if he was on
the lease. And after several times requesting [he
answer] that, he finally advised no. Then, he started
talking about what items were taken, where these
items were, where he was now having to stay
because he had nowhere to stay.

…

A. And, as the conversation progressed, what
did he say?

Q. He just wanted to know what he could do,
how he could get paid, advised me that the claim rep
had already advised him what needed to be done
and that if he had any other questions to give me a
call, but I needed the supporting documents.

…

Q. And do you know what amount he was
claiming as lost or stolen or damaged?

A. During the course of several different
conversations, an amount was given, yes.

Q. And what was that amount?

A. It was in excess of $15,000.[00.]

Id. at 184. Johns detailed further the items Appellant claimed were stolen

and that Appellant was unable to furnish the required proof of ownership

because “[h]e operates off the books.” Id. at 186.

Based on the foregoing, Appellant’s attempt to characterize his contact

with ASI as “conversations about that policy” rather than as a claim is belied

by the record. See Appellant’s Brief (555 EDA 2015) at 10, 16. There is

ample evidence that Appellant had numerous discussions with

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representatives of ASI detailing the items he alleged where damaged or

stolen and the amount of the alleged loss in an attempt to collect on the

policy. See, e.g. N.T., 7/8/14, at 185. Moreover, in response to Appellant’s

actions, ASI sent an inspector to the residence on January 8, 2014. Id. at

187. Following the inspection, Appellant text-messaged pictures of a dresser

and a window to Johns, claiming the dresser had been damaged during the

course of the burglary. Id. at 188-189. Johns testified, “[t]he claim was

denied for failure to provide the documents per the policy provisions and for

misrepresentation.” Id. at 190. Accordingly, we conclude the totality of

Appellant’s several interactions with ASI describing his purported losses,

including having the residence inspected and sending images supporting

such losses on his phone, sufficiently support a conviction for insurance

fraud and criminal use of communication facility. Further, as noted by

Johns, Appellant was unable to provide the necessary documents to have his

claim paid because, by his account, he was not operating a legal business.

Id. at 186. Therefore, we decline to conclude Appellant did not file a claim

based on the fact that he “never submitted or never tried to submit the

paperwork[.]” Appellant’s Brief (555 EDA 2015) at 11,16.12

____________________________________________

12
Appellant’s sole challenge is that the Commonwealth failed to prove he
filed a claim. Although he does not contest any other element, we
nevertheless conclude, viewing the evidence in the light most favorable to
the Commonwealth, sufficient evidence was presented to prove each
element of the offenses. Specifically, the record abundantly demonstrates
(Footnote Continued Next Page)

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We next review whether the trial court erred in denying Appellant’s

post-sentence motion challenging the weight of the evidence for insurance

fraud and criminal use of communication facility.13 A challenge to the weight

of the evidence “concedes that the evidence is sufficient to sustain the

verdict, but seeks a new trial on the ground that the evidence was so one-

sided or so weighted in favor of acquittal that a guilty verdict shocks one’s

sense of justice.” In re J.B., 106 A.3d 76, 95 (Pa. 2014) (citation omitted).

“A motion for a new trial alleging that the verdict was against the weight of

the evidence is addressed to the discretion of the trial court.”

Commonwealth v. Weathers, 95 A.3d 908, 910-911 (Pa. Super. 2014),
_______________________
(Footnote Continued)

Appellant concocted the story of the burglary, reported it to the police, and
attempted to collect on his insurance policy by reporting the fabricated
burglary to ASI. Therefore, the evidence was sufficient to convict Appellant
of his first count of insurance fraud. See 18 Pa.C.S.A. § 4117(a)(2);
Young, supra. Further, Officer Anderson testified that Appellant asked him
“for a copy of the incident report[,] so he could provide [ASI] with that.”
N.T., 7/8/14, at 105. Moreover, Appellant told Spagnola to “act as if there
was a robbery[]” in order to have his false burglary account appear more
credible. Id. at 44. Accordingly, the Commonwealth presented sufficient
evidence to establish Appellant solicited another to make or prepare a
statement intended to be presented to ASI in support of his false claim. See
18 Pa.C.S.A. § 4117(a)(3); Young, supra. As Appellant does not dispute
that he text-messaged images to ASI and made phone calls regarding his
policy, there was sufficient evidence, a fortiori, to sustain Appellant’s
conviction for criminal use of communication facility. See 18 Pa.C.S.A.
§ 7512.
13
As we acknowledged at the outset, Appellant relies on the same argument
in support of his challenge to the weight of the evidence, i.e., that he never
filed a claim, and therefore, that the verdicts for insurance fraud and
criminal use of communication facility are against the weight of the
evidence. See Appellant’s Brief (555 EDA 2015) at 13-14, 19-20.

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appeal denied, 106 A.3d 726 (Pa. 2015), citing Commonwealth v. Diggs,

949 A.2d 873, 879 (Pa. 2008). Therefore, on appeal, the reviewing court

“reviews the exercise of discretion, not the underlying question whether the

verdict is against the weight of the evidence.” Id. “A new trial is not

warranted because of a mere conflict in the testimony and must have a

stronger foundation than a reassessment of the credibility of witnesses.”

Commonwealth v. Gonzalez, 109 A.3d 711, 723 (Pa. Super. 2015)

(citation and internal quotation marks omitted). “[O]nly where the facts and

inferences disclose a palpable abuse of discretion will the denial of a motion

for a new trial based on the weight of the evidence be upset on appeal.”

Commonwealth v. Morales, 91 A.3d 80, 91 (Pa. 2014) (emphasis in

original; citation omitted), cert. denied, Morales v. Pennsylvania, 135 S.

Ct. 1548 (2015).

The trial court provided the following analysis as to weight of the

evidence supporting the insurance fraud convictions.

Analyzing this motion under the weight of the
evidence standard, [Appellant] again argues that he
did not submit a proper claim. However, the
testimony showed that he contacted the insurance
company on the same morning he reported the
burglary. His contact with them was to report his
burglary claim. He made an initial contact to report
his loss, and then followed up with Ms. Johns’
inquiries. She testified extensively about her
investigation of [Appellant]’s claim and she referred
to it as such. The jury was free to deem this
testimony credible. The result was just, and it does
not shock the court’s sense of justice.

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Trial Court Opinion, 1/29/15, at 10.14

Regarding Appellant’s criminal use of communication facility

conviction, as with his sufficiency challenge, he does not contest that he

used a telephone to have several conversations with ASI and send them

images of his alleged damaged property. The trial court noted, “[b]oth the

sufficiency of the evidence and weight of the evidence analyses detailed

above [with respect to insurance fraud] apply here.” Id.

The trial court reviewed the evidence at trial and determined that the

result does not shock one’s sense of justice, and we will not disturb its

finding. See Weathers, supra. Moreover, it cannot be said that the trial

court’s denial of Appellant’s post-sentence motions based on the facts and

inferences of this case rises to a palpable abuse of discretion. See Morales,

supra. Accordingly, Appellant’s challenges to his convictions for insurance

fraud and criminal use of communication facility based on the weight of the

evidence fail.15

____________________________________________

14
The trial court authored a 1925(a) opinion with respect to one issue
Appellant raised in his 1925(b) statement that had not been previously
raised in the trial court and which Appellant has since abandoned on appeal.
Trial Court Opinion, 3/29/15, at 1-2. In addressing the remainder of
Appellant’s issues, the trial court relied on its previously issued January 29,
2015 opinion explaining its denial of Appellant’s post-sentence motion.
15
Within his argument sections challenging the sufficiency and weight of the
evidence of insurance fraud, Appellant attempts to challenge his conviction
for criminal conspiracy to commit insurance fraud. Appellant’s Brief (555
EDA 2015) at 11, 14. Appellant advances, for both arguments, “[t]here was
(Footnote Continued Next Page)

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Appellant next avers that there was insufficient evidence to convict

him of false reports. In particular, Appellant argues there was insufficient

evidence to convict him because he “did not say who he had thought had

done the burglary.” Appellant’s Brief (555 EDA 2015) at 23. The relevant

statute provides as follows.16

§ 4906. False reports to law enforcement
authorities

(a) Falsely incriminating another.—Except as
provided in subsection (c), a person who knowingly
gives false information to any law enforcement
officer with intent to implicate another commits a
misdemeanor of the second degree.

18 Pa.C.S.A. § 4906(a).

At trial, Officer Dunlap provided the following testimony.

[The Commonwealth]:

Q. And did [Appellant] make any statements to
you – any further statements in regards to Ms.
Sherwood and/or Mr. DiMartino?

_______________________
(Footnote Continued)

no evidence that Appellant agreed with or asked anyone to submit
information needed to open a claim with [ASI].” Id. As there is no
pertinent discussion of the facts of the case or citation to legal authority, we
conclude this portion of Appellant’s arguments are waived. See
Commonwealth v. Delvalle, 74 A.3d 1081, 1086-1087 (Pa. Super. 2013)
(concluding the appellant waived review of his claim where the entire
argument consisted of three sentences, and appellant failed to cite a single
case or develop a factual argument).
16
Appellant was also convicted of a second count of false reports, 18
Pa.C.S.A. § 4906(b)(1); however, he does not argue there was insufficient
evidence to sustain that conviction.

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[Appellant]:

A. Yes. He stated they still have a key. And as
I said before, as I’m going around doing my
investigation and talking to him at the same time, he
tried to lead me to believe that maybe they were
responsible for this. When I asked him why, he said
[“]]because they owe me money. They still got a
key. You know, they could have done all this.[[”]]

N.T., 7/8/14, at 84.

Appellant argues that he “was answering the inquiry of the officer

when [Appellant] was asked if he knew who may have done it, and he only

responded that the person may have done it.” Appellant’s Brief (555 EDA

2015) at 23. Instantly, Appellant’s argument is untenable. Viewing the

evidence in the light most favorable to the Commonwealth, the jury was free

to credit the testimony of Officer Dunlap that Appellant indeed implicated his

roommates in the crime. See Young, supra. Moreover, the overwhelming

evidence presented at trial demonstrates that Appellant reported to police a

burglary that did not occur. Therefore, the Commonwealth presented

sufficient evidence to prove Appellant knowingly reported false information

to police with the intent to implicate his roommates in the crime. See 18

Pa.C.S.A. § 4906(a). As such, this issue fails.17

____________________________________________

17
We further note the fact that Appellant’s statements were in response to
police inquiry does not obviate his culpability. See Commonwealth v.
Hlatky, 626 A.2d 575, 582 (Pa. Super. 1993) (observing, with respect to
Section 4906(b)(1), “[t]he statute does not differentiate between false
reports of an incident given by an individual in response to police
(Footnote Continued Next Page)

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In his sixth issue, Appellant argues that there was insufficient evidence

to prove criminal conspiracy to commit the offense of false reports to law

enforcement. Appellant’s entire argument follows. “There was no evidence

there was an agreement or conspiracy to give a false report. As there is no

evidence of an agreement or conspiracy to give a false report, there is

insufficient evidence to convict for this crime.” Appellant’s Brief (555 EDA

2015) at 24. Aside from reproducing the conspiracy statute, Appellant

provides no citation to legal authority, nor does Appellant in any meaningful

way discuss the facts of the case as applied to the law.

Pennsylvania Rule of Appellate Procedure 2119 provides that the

argument section in each brief shall contain “such discussion and citation of

authorities as are deemed pertinent.” Pa.R.A.P. 2119(a). Because Appellant

has failed to cite any case law or develop a factual argument in a

substantive manner, Appellant has waived review of this issue. Delvalle,

supra.

In Appellant’s final claim of error on docket 555 EDA 2015, he

challenges the sentences imposed for his criminal conspiracy and false

reports convictions.18 Appellant’s Brief (555 EDA 2015) at 25. Specifically,

_______________________
(Footnote Continued)

questioning from those spontaneously given without police inquiry[]”),
appeal denied, 644 A.2d 1200 (Pa. 1994).
18
The trial court sentenced Appellant to 6 to 12 months’ imprisonment for
his conviction for false reports-fictitious reports to law enforcement; a
(Footnote Continued Next Page)

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Appellant claims that criminal conspiracy, false reports-fictitious reports, and

false reports-incriminating another should have merged. Id. A claim that

crimes should have merged for sentencing purposes raises a challenge to

the legality of the sentence. Commonwealth v. Williams, 980 A.2d 667,

672 (Pa. Super. 2009), appeal denied, 990 A.2d 730 (Pa. 2010). Although

Appellant failed to raise this issue in his statement pursuant to Rule 1925,

challenges to the legality of a sentence are non-waivable. Commonwealth

v. Raven, 97 A.3d 1244, 1248 n. 7 (Pa. Super. 2014), appeal denied, 105

A.3d 736 (Pa. 2014). Our standard of review over issues pertaining to the

legality of sentences is de novo, and our scope of review is plenary.

Commonwealth v. Batts, --- A.3d ---, 2015 WL 5174241, *10 (Pa. Super.

2015)

The test for determining if crimes merge for sentencing follows.

§ 9765. Merger of sentences

No crimes shall merge for sentencing purposes
unless the crimes arise from a single criminal act and
all of the statutory elements of one offense are
included in the statutory elements of the other
offense. Where crimes merge for sentencing
purposes, the court may sentence the defendant
only on the higher graded offense.

_______________________
(Footnote Continued)

concurrent term of 6 to 12 months’ imprisonment for false reports- falsely
incriminating another; and a concurrent term of 6 to 12 months’
imprisonment for conspiracy to commit false reports-fictitious reports to law
enforcement.

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42 Pa.C.S.A. § 9765. “Accordingly, merger is appropriate only when two

distinct criteria are met: (1) the crimes arise from a single criminal act; and

(2) all of the statutory elements of one of the offenses are included within

the statutory elements of the other.” Commonwealth v. Jenkins, 96 A.3d

1055, 1056 (Pa. Super. 2014) (citation omitted), appeal denied, 104 A.3d 3

(Pa. 2014).

Instantly, this Court has repeatedly held that “[t]he crime of

conspiracy … is separate and distinct from the underlying substantive crime.”

Commonwealth v. Jacquez, 113 A.3d 834, 838 (Pa. Super. 2015) (citation

omitted). Therefore, “the crime of conspiracy does not merge with the

substantive offense that is the subject of the conspiracy.” Id. (citation

omitted). Thus, the trial court did not err in sentencing Appellant on

conspiracy and the underlying offense of false reports.

We turn now to assess Appellant’s claims that his convictions for false

reports should have merged. As noted, Appellant was convicted of two

counts of false reports: false reports-falsely incriminating another and false

reports-fictitious reports. To convict Appellant of false reports-falsely

incriminating another, the Commonwealth must prove that Appellant

“knowingly g[ave] false information to any law enforcement officer with

intent to implicate another[.]” 18 Pa.C.S.A. § 4906(a). Whereas to be

convicted of false reports-fictitious reports, the Commonwealth need

establish that Appellant “report[ed] to law enforcement an offence or other

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incident within [his] concern knowing that it did not occur.” Id. 4906(b)(1).

As such, to be convicted of false reports-falsely incriminating another, the

Commonwealth must prove an element, i.e., intent to implicate another,

that is not required for a conviction under Section 4906(b)(1). Likewise, a

conviction under Section 4906(b)(1) requires the Commonwealth prove a

defendant report an incident knowing it did not occur. Section 4906(a)

does not require a defendant report an incident knowing that it did not

occur, but only requires false information be provided to police with the

intent to implicate another. Therefore, the crimes have distinct elements

and do not merge. See Jenkins, supra. Accordingly, Appellant is not

entitled to relief on any of his claims on docket 555 EDA 2015.

We now turn our attention to Appellant’s claims of error on docket

number 557 EDA 2015. Appellant asks us to consider the following three

issues.

1. Did the trial court abuse its discretion by not
setting aside the verdict for the charge of
[o]bstructing [a]dministration of [l]aw or [o]ther
[g]overnmental [f]unction where there was no
conviction for an unlawful act[,] where [A]ppellant
was acquitted of the other charges in the criminal
information upon which the obstructing
administration of law or other governmental function
charge was based?

2. Did the trial court abuse its discretion when it did
not to [sic] set aside the verdict as to [o]bstructing
[a]dministration of [l]aw or [o]ther [g]overnmental
[f]unction, where there was insufficient evidence to
convict [Appellant] of the crime, when an element of
the crime was not met?

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3. Did the trial court abuse its discretion by not
setting aside the verdict as to obstructing
administration of law or other governmental
function, in that the verdict was against the weight
of the evidence where the element of an unlawful act
necessary for conviction was not proven?

Appellant’s Brief (557 EDA 2015) at 5.

While purporting to raise three, distinct issues, Appellant advances

only one argument. Appellant argues that “there is no unlawful act[,]” and

therefore, the Commonwealth failed to prove an element of obstructing

administration of law or other governmental function. Appellant’s Brief (557

EDA 2015) at 9. Accordingly, Appellant maintains there was insufficient

evidence of the crime and that the verdict was against the weight of the

evidence. We first review Appellant’s conviction for sufficiency, mindful of

our standard of review. See Young, supra. The elements of the offense

follow.

§ 5101. Obstructing administration of law or
other governmental function

A person commits a misdemeanor of the second
degree if he intentionally obstructs, impairs or
perverts the administration of law or other
governmental function by force, violence, physical
interference or obstacle, breach of official duty, or
any other unlawful act except that this section does
not apply to flight by a person charged with a crime,
refusal to submit to arrest, failure to perform a legal
duty other than an official duty, or any other means
of avoiding compliance with law without affirmative
interference with governmental functions.

18 Pa.C.S.A. § 5101.

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The gravamen of Appellant’s claim is that he cannot be convicted of

obstructing administration of law because the jury found him not guilty of

the two charged counts of intimidation of witnesses. See Appellant’s Brief

(557 EDA 2015) at 8, 12-13, 15. Therefore, according to Appellant, there

was no unlawful act supporting the conviction. Id. Moreover, Appellant

claims that because “DiMartino never opened the letter and did testify

against [A]ppellant[,] the obstruction never took place.” Id. at 11. We

conclude Appellant’s argument is without merit.

As explained, Appellant sent DiMartino a letter from prison telling

DiMartino that the police cannot force DiMartino, Sherwood, or Spagnola to

appear for court to testify.19 N.T., 7/8/14 at 210-211. He wrote to

DiMartino, “[y]ou need to recant on those statements. Write new ones[.] …

I need a statement from you and [Sherwood]… You need to say you don’t

know what happened there and that [Appellant] had tools there.” Id. at

211-212. The letter also suggested DiMartino refuse to testify. Specifically,

Appellant wrote, “[t]he best thing after these statements is no one show up

for court. Remember you can’t get in trouble. They only scare people into

doing that. Give me your number so we can talk further. Don’t talk to

[Spagnola] unless convincing her not to show up at court.” Id. at 215

____________________________________________

19
Appellant does not dispute that he sent DiMartino a letter. See
Appellant’s Brief (557 EDA 2015) at 11.

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(some capitalization omitted). The trial court provided the following analysis

to address Appellant’s argument.

Here, the statute in question does not require a
conviction of any specific crime, only that [Appellant]
impair administration of law through some “unlawful
act.” [Appellant] staged a burglary in order to
collect renter’s insurance, and he encouraged his
roommates, [] DiMartino and [] Sherwood to
participate in the plan. He reported the false
burglary to the police and to his insurance company,
made false written statements, and encouraged his
roommates to provide false statements as well.
While [Appellant] was acquitted of two counts of
[i]ntimidation of [w]itnesses, … the jury was
instructed that [o]bstruction could be proven if
[Appellant] directed a witness, Harley DiMartino, to
provide a false statement to police with intent of
obstructing justice. It is not a statutory requirement
that he be convicted or any other for the
[o]bstruction conviction to stand. The jury had
ample evidence to find [Appellant] directed []
DiMartino to provide a false statement in order to
obstruct [Appellant’s] prosecution for committing
insurance fraud.

Trial Court Opinion, 1/29/15, at 7-8 (internal citation omitted, italics in

original).

We agree with the trial court that, viewing all the evidence at trial in

the light most favorable to the Commonwealth, sufficient evidence was

produced to enable the jury to find that Appellant was guilty of obstructing

the administration of justice. See Young, supra. Furthermore, the fact

that DiMartino testified against Appellant is of no consequence to the charge

because “section 5101 includes intentional, albeit unsuccessful attempts to

influence, obstruct, or delay the administration of law.” Commonwealth v.

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Snyder, 60 A.3d 165, 177 (Pa. Super, 2013) (citation omitted), appeal

denied, 70 A.3d 811 (Pa. 2013). The evidence adduced at trial indisputably

demonstrates Appellant intentionally undertook to have DiMartino and

Sherwood provide false statements to police and to refuse to testify against

him in order to obstruct or delay the administration of law. Accordingly,

Appellant’s first two issues fail.

Similarly, in Appellant’s third issue, he argues, “there is no evidence of

an unlawful act, therefore the verdict is a shock to one’s conscience.”

Appellant’s Brief (557 EDA 2015) at 15. The trial court evaluated the

evidence at trial and concluded, “[t]he weight of the evidence also supported

[Appellant’s] conviction.” Trial Court Opinion, 1/29/15, at 7-8. Our review

reveals that the trial court properly exercised its discretion in determining

the conviction was not against the weight of the evidence, and we will not

upset the trial court’s determination. See Weathers, supra; Morales,

supra.

Based on the foregoing discussion, we conclude all of Appellant’s

issues are either without merit or waived. Accordingly, we affirm the trial

court’s September 15, 2014 judgments of sentence.

Judgment of sentence affirmed.

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Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/21/2015

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