J-A04009-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
MARK GOLDMAN,
Appellee No. 3822 EDA 2015
Appeal from the Order December 1, 2015
In the Court of Common Pleas of Bucks County
Criminal Division at No(s): CP-09-CR-0007567-2015
BEFORE: SHOGAN, SOLANO, and PLATT,* JJ.
MEMORANDUM BY SHOGAN, J.: FILED SEPTEMBER 18, 2017
The Commonwealth appeals from the order dismissing all charges filed
against Appellee, Mark Goldman, a private investigator who has performed
work for the Risoldi family. We affirm.
Over the course of several decades, the Risoldi family experienced
multiple fires in their residences, resulting in the filing of numerous claims to
various insurance companies. Ultimately, these claims led to criminal
charges being filed against various members of the Risoldi family. The trial
court set forth a more detailed history of this matter as follows:
While the fire of October 22, 2013, is the central theme of
the charges against the defendants, that fire must be viewed in
a broader context because of the Commonwealth’s theory of the
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
J-A04009-17
case1. The Commonwealth contends that Claire Risoldi has
engaged in a multi-year course of conduct intended to defraud
the insurers of residences she owned/occupied and that she used
the funds received from those insurers to fund her lifestyle which
the Commonwealth characterized as “extravagant.” Accordingly,
it is necessary to reference earlier claims in order to follow the
various strands of evidence that the Commonwealth sought to
weave together to support the charges on which she and the
other defendants were held for court.
1
The District Attorney of Bucks County requested
that the Office of the Pennsylvania Attorney General
handle this case. When [this court] use[s] the term
Commonwealth, [it] mean[s] the Office of the
Attorney General.
* * *
An additional caveat is necessary and that is that the
Commonwealth agrees that the pre[-]2013 matters are to be
considered as evidence against Claire Risoldi, hereinafter Claire,
only. For ease of reference, Carlo Risoldi, her son, is hereinafter
referred to as Carl.
The Claim of November 29, 1984
The Risoldi family,2 lived [on] Tower Circle, Yardley, PA.
On November 29, 1984, their home was burglarized and items
were reported taken, including jewelry. The insurer was Chubb
Insurance Company. A claim was submitted for jewelry the
family (father and Claire) said was taken and Chubb reimbursed
them $120,324 for the jewelry.
2
Carlo (father)[,] Claire, Carl[,] and Carla[.]
The Claim of December 16, 1993
The Risoldis (father, Claire, Carl and Carla) still resided at
the . . . Tower Circle address. The house was broken into,
vandalized and items reported taken. The insurer was
Nationwide Insurance Company. Among the items reported
taken were pieces of jewelry. The Risoldis (father & Claire)
claimed losses of $363,478. Their claim was settled for $80,000
following institution of a lawsuit against Nationwide.
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In her [examination under oath], given in support of the
claim, Claire stated that her husband was presently disabled but
had earned $75-80,000 per year as a foreman/supervisor for a
tile company. She further stated her husband received another
$50,000-$60,000 per year from “other investments”.
Her first husband’s income features prominently in the
Commonwealth’s theory as it suggests there was insufficient
income to sustain the lifestyle the family enjoyed and the jewelry
Claire claimed to own. She also stated that all her scheduled
jewelry was taken. The scheduled jewelry was valued at
$111,000.
The Claim of April 22, 2002
As of this date, the Risoldis (Claire, Carl and Carl’s wife,
Sheila) lived [on] Stoney Hill Road, hereinafter referred to as
Clairemont. The record does not indicate when Carl, the father,
died or what estate, if any, he left.
On April 22, 2002, a “home invasion” occurred at
Clairemont while Sheila was in the house. Again, jewelry was
listed as being taken. The value of the scheduled3 jewelry was
$131,827. The insurer was Fireman’s Fund Insurance Company.
A claim was filed for $449,018 and settled for $206,888 which
included the entire amount for scheduled jewelry, $131,827.
3
Scheduled means insurance coverage exists for
the items.
The Claim of June 17, 2009
On June 17, 2009, a fire occurred in a room that Claire
used for dressing and personal care purposes. She was in an
adjacent room when she heard a sound and smelled smoke. The
insurer at this time was American International Group,
hereinafter AIG. This fire occurred on the second floor of
Clairemont and caused structural damage, etc. One of the items
damaged was drapery which AIG believed could be cleaned but
Claire insisted be replaced. A Commonwealth theme is Claire’s
ability to dominate others and to get them to act as she wishes.
As a result of her demand, AIG paid $300,000 to replace the
drapes. Drapes are another thread in the web the
Commonwealth wove to charge the defendants.
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The fire was investigated, was determined to be accidental
and the cause to be electrical. The presence of hair spray in the
area of the fire was noted as it can be an accelerant. Hair spray
is another common theme in the various fires. However, [the
trial court] take[s] judicial notice that hair spray is commonly
found in areas where women dress. On the other hand, multiple
cans of hairspray are unusual, especially when stored in the
attic.
At the time of this incident Carl was the named insured.
Carl and AIG disagreed as to the amount of the loss and
ultimately the claim settled for $1,800,000.
The Claim of August 16, 2010
On August 16, 2010, a fire occurred in an attic dormer at
Clairemont. Access to the attic was through a set of pull down
stairs and hoses, etc. had to be pulled through the house to the
attic. There was extensive structural damage, as well as smoke
and water damage. Outside consultants were brought in to
determine the cause of the fire, extent of damage, etc. The local
Fire Marshall also conducted an examination to determine the
cause of the fire. Cases of hair spray were found in the attic
near where the fire started. Once again, the fire was ruled
accidental with the cause being electrical.
AIG was the insurer. Claire asserted that she had replaced
the drapes damaged in the 2009 fire at a cost of $1,200,000 and
submitted a claim for same. When the parties were unable to
agree to the actual loss, the claim settled for $8,000,000 which
sum included $1,200,000 for the drapes which [the trial court
has] already noted are a thread in the Commonwealth’s case.
As part of the restoration work following this fire murals
were painted on the entrance hall ceiling and dining room wall by
Russell Buckingham who testified that he had been paid a total
of $50,000 for both murals. The cost of these murals is another
thread in the Commonwealth’s web.
AIG also provided funds to the Risoldis (Claire, Carl and
Sheila) for substitute housing while Clairemont was being
repaired. This type [of] coverage was referred to as ALE
(alternative living expenses) and it too becomes a thread in the
Commonwealth’s web.
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The Claim of October 22, 2013
At the time of this claim4 Claire, her then husband Tom
French, Carl, Sheila and their children resided at Clairemont.
Carla lived elsewhere with her family. Clairemont, at the time of
this fire, was owned by Carl and Carla.
4
The Commonwealth contends that the conduct
surrounding this claim is attributable to all
defendants and supports the corrupt organization
counts against them.
AIG insured Clairemont and provided the following
coverages:
1. dwelling coverage on the home
2. structure coverage for out buildings, e.g., pool,
garages
3. contents/personal property
4. alternative living expenses
5. guaranteed replacement cost
The named insureds were Carl and Sheila and although Claire
was not a named insured, she was covered under the policy.
There was also a COLLECTIONS POLICY with Carl and Sheila as
the named insureds. Coverage was for eleven million dollars.
The policy also covered Claire’s jewelry.
According to Mr. O’Keefe, AIG’s adjuster, the drapes,
ceiling and wall murals (a claim for more than $800,000 was
made to redo the murals[)], fall under the dwelling coverage.
The insurance policy/policies were never offered into evidence
and [the trial court does] not know if Mr. O’Keefe’s interpretation
is correct. However, at this stage of the proceedings, [the trial
court] accept[s] his interpretation as a correct statement of the
policy.
This fire began about 1:00 pm in an attic dormer and was
so extensive as to result in Clairemont being declared a total loss
by AIG. AIG paid the full policy coverage for the structure,
$7,200,000, as all the PRIVATE experts who looked into the
cause of the fire concluded it was accidental.5 However, as Carl
and Sheila had replacement coverage, AIG was obligated to pay
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the actual cost of replacing Clairemont, a sum much greater than
the $7,200,000 dwelling coverage.
5
There are three categories for a fire:
(1) Accidental - meaning it was
accidental
(2) Incendiary - meaning it was caused
by someone putting a fire where
one is not supposed to be, and
(3) Undetermined - meaning the
investigator is unable to determine
if the fire was accidental or
incendiary.
FIRE MARSHALL KETTLER, UNLIKE THE HIRED
EXPERTS LISTED THE FIRE CAUSE AS
UNDETERMINED. He also listed the two earlier fires
as undetermined.
AIG agreed that it would take three years to rebuild
Clairemont and paid for the rental of two houses, one for Carl
and his family and one for Claire and Tom French. AIG made
lump sum payments as requested by Claire and Carl. These
payments are a thread in the Commonwealth’s web as it
contends that the actual lease payment on Claire’s residence was
less than stated and that she used the money to buy the house
through a straw party. Mr. O’Keefe testified that the purchase of
the homes by Claire through a straw party and by Carl directly
were not an “appropriate use” of ALE funds and that they should
have notified AIG of these transactions. Again, in the absence of
the exact language of the policies, Mr. O’Keefe’s comments are,
at this stage, accepted as correct.
As this was the third fire at Clairemont in four years, the
antennae of the police and fire personnel responding were on
high alert. Officer Johnson of the Buckingham Township Police
arrived within minutes of the fire being reported and assisted the
firemen on scene by kicking down the front door to enable them
to gain access to Clairemont. When Claire arrived and fainted he
checked to see if the faint, “was real or fake.” Lieutenant Landis
of the Buckingham Township police, a long-time friend of the
Risoldi family, also responded to the fire. He told Claire that she
would be subject to tough questioning because of the three fires
at the residence. Indeed, Fire Marshall Kettler6, asked Carl the
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day of the fire if his mother, Claire, could have been involved in
the origin or cause of the fire. The Commonwealth presented
this testimony to set the stage for its position that the family’s
failure to note the presence of the jewelry to the authorities was
part of their scheme to defraud AIG. The issue of notice
regarding the “missing jewelry” is obviously at the heart of this
case. The defense notes that Carl sent a text regarding the
jewelry to an AIG representative, Mr. Amoroso, on the evening
of October 22, 2013. The Commonwealth asserts that the
defendant’s comments regarding trying to alert officials of the
presence of the jewelry and/or their desire to get into Clairemont
to retrieve same is evidence of their involvement in a corrupt
organization. The defense countered that, Tom French did gain
access to Clairemont while the fire was ongoing. He was
encountered by Fire Marshall Kettler on the second floor of
Clairemont while Kettler was checking to see if anyone was in
the house. Interestingly, Mr. French did not state why he was in
the house or make mention of the jewelry or the need to get it
out.
6
Mr. Kettler responded to the three Clairemont fires
and noted that as to the 2010 and 2013 fires, no one
was at home when they occurred, that there were
multiple cases of hairspray in the area of the fire and
that Claire was the last to leave home.
All the Risoldis, Claire, Carl, Sheila and Carla were present
at some point while the fire was being fought, as was Tom
French.
[Appellee] was also present on the day of the fire although
the record is unclear whether he was there prior to the fire
personnel departing. [Appellee], a licensed private detective,
had a long-standing relationship with Claire and Carla and seems
to have functioned as an aide to Claire. Regarding the 2013 fire,
he was present for many of the meetings Claire and/or Carl had
with representatives of AIG, interacted with police officials and
delivered documents to AIG on their behalf.
Trial Court Opinion, 9/15/15, at 2-9 (citations omitted).
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On December 19, 2014, the Thirty-Fifth Statewide Investigating Grand
Jury1 issued a presentment recommending that charges be filed against
Appellee, Claire Risoldi, Carl Risoldi, Carla Risoldi, Sheila Risoldi,
Tom French, and Richard Holston in connection with an alleged multi-million
dollar insurance fraud scheme. Appellee was charged with one count each of
corrupt organizations, theft by deception, attempted theft by deception,
criminal conspiracy, obstruction of the administration of law, tampering with
records, criminal use of a communication facility, and false reports; two
counts each of insurance fraud, dealing in proceeds of unlawful activity, and
intimidation of a witness; and three counts of forgery.2 A preliminary
hearing was held before Magisterial District Judge C. Robert Roth from
March 30, 2015, through April 7, 2015. At the conclusion of the preliminary
hearing, the charges of theft by deception, attempted theft by deception,
criminal conspiracy, two counts of insurance fraud, and a single count of
forgery were held for court against Appellee. One count of dealing in
____________________________________________
1
As previously indicated, after the Bucks County District Attorney
determined he had a conflict of interest, the matter was referred to the
Office of Attorney General. We also note that, due to the prominence of the
Risoldi family in Bucks County politics, the entire Bucks County Court of
Common Pleas recused itself from the matter, and Senior Judge Thomas G.
Gavin of Chester County was appointed.
2
18 Pa.C.S. §§ 911, 3922(a)(1), 901, 903, 5101, 4104, 7512, 4906,
4117(a)(2), 5111(a)(1)(2), 4952, and 4101(a)(1)(2)(3), respectively.
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proceeds of unlawful activity was withdrawn and the remaining charges were
dismissed.
On June 15, 2015, Appellee and several of his co-defendants filed
petitions for writ of habeas corpus. On July 17, 2015, a hearing was held on
the petitions before Judge Gavin, and on September 15, 2015, Judge Gavin
granted habeas relief and dismissed all charges against Appellee. The
habeas petitions filed by Appellee’s co-defendants were denied.
On October 9, 2015, the Commonwealth refiled charges against
Appellee, which included corrupt organizations, as well as the charges that
had originally been held for court by Judge Roth. The Commonwealth also
filed new charges against Appellee and co-defendant Claire Risoldi, including
intimidation of a witness, criminal conspiracy, and obstructing the
administration of law.3 The trial court held a preliminary hearing on all of
the charges on November 20, 2015. On December 1, 2015, Judge Gavin
dismissed all charges that had been filed against Appellee. The
Commonwealth filed this timely appeal. Both the Commonwealth and the
trial court have complied with Pa.R.A.P. 1925.
The Commonwealth presents the following issue for our review:
I. WHETHER THE LOWER COURT’S DISMISSAL OF CHARGES
WAS A MANIFEST ABUSE OF DISCRETION WHERE THE
COMMONWEALTH ESTABLISHED A PRIMA FACIE CASE FOR ALL
CHARGES AND THE COURT’S RESOLUTION WAS CONTRARY TO
____________________________________________
3
18 Pa.C.S. §§ 4952(a)(2), 903, and 5101, respectively.
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THE STANDARDS FOR ANALYIZING [sic] SUFFICIENCY OF
EVIDENCE TO SUPPORT A PRIMA FACIE CASE?
Commonwealth’s Brief at 4.4 Thus, the Commonwealth contends that the
trial court’s order dismissing all charges was in error because the
Commonwealth allegedly presented sufficient evidence to establish a prima
facie case for each of the offenses dismissed.
____________________________________________
4
We observe that, excluding tables and appendices, the Commonwealth’s
brief is sixty-nine pages long. Pursuant to Pa.R.A.P. 2135, a principal brief is
limited to 14,000 words, and when the brief exceeds thirty pages, the
appellant must certify with the appellate court that the brief complies with
the word limitation. See Pa.R.A.P. 2135(d) (stating that “[a]ny brief in
excess of the stated page limits shall include a certification that the brief
complies with the word count limits”). A review of the Superior Court docket
reflects that the Commonwealth requested and was granted two extensions
of time to file its appellate brief in this matter. On June 23, 2016, this Court
entered an order granting the Commonwealth’s second request. Specifically,
the order directed that the Commonwealth’s brief shall be filed on or before
August 1, 2016, and that no further extensions of time would be granted
absent extraordinary circumstances. Order, 6/23/16, at 1. Subsequently,
on Friday, July 29, 2016, the Commonwealth filed an application for leave to
exceed the word limit set forth at Pa.R.A.P. 2135, indicating that its
appellate brief was just short of 16,000 words. Then, on Monday, August 1,
2016, before this Court could act on the Commonwealth’s application, the
Commonwealth filed its appellate brief, which included a certification that
the word count for the entire document is 15,888 words. Thereafter, on
August 18, 2016, this Court entered a per curiam order granting the
Commonwealth’s application and directing that the brief shall not exceed
16,000 words in length. Order, 8/18/16, at 1. Because the Commonwealth
was permitted by order of this Court to exceed the word limitation of
Pa.R.A.P. 2135, albeit in an order entered after the Commonwealth’s brief
was filed, we shall not dismiss the brief or quash the appeal. However, we
caution counsel for the Commonwealth that we will not hesitate to quash an
appeal for violation of Pa.R.A.P. 2135. Cf. Commonwealth v. Spuck, 86
A.3d 870 (Pa. Super. 2014) (finding issues to be waived and quashing
appeal where Appellant violated various Rules of Appellate Procedure,
including Pa.R.A.P. 2135).
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The evidentiary sufficiency, or lack thereof, of the Commonwealth’s
prima facie case for a charged crime is a question of law; this Court’s review
is plenary. Commonwealth v. Karetny, 880 A.2d 505, 513 (Pa. 2005)
(citing Commonwealth v. Huggins, 836 A.2d 862 (Pa. 2003)). Indeed,
the trial court is afforded no discretion in ascertaining whether, as a matter
of law and in light of the facts presented to it, the Commonwealth has
carried its pretrial, prima facie burden to establish the elements of a charged
crime. Id.
In Huggins, our Supreme Court explained:
At the pre-trial stage of a criminal prosecution, it is not
necessary for the Commonwealth to prove the defendant’s guilt
beyond a reasonable doubt, but rather, its burden is merely to
put forth a prima facie case of the defendant’s guilt. A prima
facie case exists when the Commonwealth produces evidence of
each of the material elements of the crime charged and
establishes sufficient probable cause to warrant the belief that
the accused committed the offense. The evidence need only be
such that, if presented at trial and accepted as true, the judge
would be warranted in permitting the case to go to the jury.
Moreover, “[i]nferences reasonably drawn from the evidence of
record which would support a verdict of guilty are to be given
effect, and the evidence must be read in the light most favorable
to the Commonwealth’s case.”
Id. at 866 (citations omitted).
However, we have also noted that “suspicion and conjecture are not
evidence and are unacceptable as such.” Commonwealth v. Packard, 767
A.2d 1068, 1071 (Pa. Super. 2001). “[W]here the Commonwealth’s case
relies solely upon a tenuous inference to establish a material element of
the charge, it has failed to meet its burden of showing that the crime
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charged was committed.” Commonwealth v. Wojdak, 466 A.2d 991, 997
(Pa. 1983) (emphasis in original).
INSURANCE FRAUD (Window Treatments)
The Commonwealth first argues that the trial court erred in
determining that it failed to present sufficient evidence to support a prima
facie finding that Appellee committed the crime of insurance fraud.
Commonwealth’s Brief at 12-44. The Commonwealth contends that it
offered sufficient evidence to support the two charges of insurance fraud.
Specifically, the charges of insurance fraud were related to the claim
presented to AIG for the fire at Clairemont that occurred on October 22,
2013, which was the third fire at Clairemont. The first charge pertained to
the insurance claim to replace window treatments. The second charge
pertained to the alleged theft of jewelry purportedly valued at more than ten
million dollars.
The Crimes Code defines insurance fraud, in relevant part, as follows:
§ 4117. Insurance fraud.
(a) Offense defined. - A person commits an offense if the
person does any of the following:
* * *
(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.
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18 Pa.C.S. § 4117(a)(2) (emphasis added). In addition, the statute defines
the term “statement,” in part, as “[a]ny oral or written presentation or other
evidence of loss, injury or expense, including, but not limited to, any notice,
statement, proof of loss, bill of lading, receipt for payment, invoice, account,
estimate of property damages, bill for services, . . . or computer-generated
documents.” 18 Pa.C.S. § 4117(l)
Initially, the Commonwealth addresses the charge related to the
insurance claim for replacement of the window treatments at Clairemont.
Commonwealth’s Brief at 13-26. The Commonwealth asserts that Appellee
provided AIG with fabricated documents in an effort to establish that the
window treatments had been replaced following the second fire, thereby
supporting the insurance claim pertaining to the window treatments after the
third fire.
It is undisputed that, absent documentation that the window
treatments had been replaced following the second fire at Clairemont, AIG
refused to pay the insurance claim related to the window treatments after
the third fire. Moreover, it is undisputed that Appellee delivered a binder to
AIG that contained documents purportedly relating to the window
treatments in question.
However, the Commonwealth presented no evidence that Appellee,
who was employed by the Risoldis, knew that the documents contained in
the binder he delivered to AIG on behalf of the Risoldis contained any false,
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incomplete or misleading information as required under the statute.
Evidence of the requisite knowledge cannot be inferred from our reading of
the certified record. Rather, as the trial court stated, “The testimony read in
the light most favorable to the Commonwealth indicates that [Appellee]
functioned as a documents courier and/or a ‘[gopher]’ who was tasked to do
certain things by Claire and did so.” Trial Court Opinion, 9/15/15, at 17-18.
Thus, while Appellee may have given a statement in the form of documents
in a binder that “contains . . . false, incomplete or misleading information
concerning any fact or thing material to the claim,” there is no showing that
this statement was made with any intent on the part of Appellee to defraud
the insurer. Therefore, even if the alleged misstatements contained in the
binder were found to be material to the insurance claim, as alleged by the
Commonwealth, there is no evidence that Appellee had any knowledge of
what exactly was contained within the binder. Moreover, there is nothing in
the record that indicates that, in delivering the binder to AIG, Appellee was
attempting to collect any money from the insurer. Hence, we are left to
conclude, as did the trial court, that Appellee simply was the courier of the
binder and did not have the necessary mens rea to acquire anything from
the insurer. Thus, the Commonwealth’s claim fails.
INSURANCE FRAUD (Jewelry)
The Commonwealth next argues that it presented a prima facie case to
support the charge of insurance fraud related to the insurance claim for
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jewelry that supposedly went missing during the fire. Commonwealth’s Brief
at 26-44. After the third fire, the Risoldis made a claim in excess of ten
million dollars for allegedly stolen jewelry, which was denied by AIG. N.T.,
4/7/15, at 1839-1840. The Commonwealth contends that in three instances
Appellee offered testimony in an examination under oath related to the
jewelry claim that was designed to defraud AIG. Specifically, the
Commonwealth makes the following assertion to support its argument:
[Appellee’s] testimony in the [examination under oath]
claimed (1) that Lieutenant Landis confirmed to [Appellee] that
Claire Risoldi told Landis about the jewelry during the fire, (2)
that [Appellee] heard Anthony Amoroso tell Claire Risoldi not to
file a police report and (3) that Lieutenant Landis told [Appellee]
not to file a police report. These statements by [Appellee] were
material, patently false and designed to defraud AIG.
Commonwealth’s Brief at 27 (emphases in original).
Our thorough review of the record reflects that, in an examination
under oath, Appellee offered the following testimony regarding his discussion
with Lieutenant Landis concerning Claire addressing the jewelry with
Lieutenant Landis during the fire:
I also spoke with [Lieutenant Landis] about the day of the
fire. And [Lieutenant Landis] confirmed to me that Claire was
going on and on about her missing jewelry in the driveway --
excuse me, not the missing jewelry, the bags of jewelry in the
foyer and she needed to get into the foyer. And she asked him
to go into the foyer for her and get the bags. [Lieutenant
Landis] confirmed that to me on that date.
Question: When did he confirm that to you?
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Answer: The evening on the 23rd when he came out to do
security. He was the first officer out that day -- that evening,
approximately seven thirty or eight o’clock in the evening.
Question: When last have you communicated with [Lieutenant]
Landis?
Answer: We spoke via telephone some time in maybe
November, maybe it was December, when I contacted him and
asked him to write me a letter confirming that he -- that Claire
had asked him about the jewelry and mentioned jewelry to him
the day of the fire about going to get the bags. That was the
last time I spoke with him over the telephone.
Question: Well, what happened when you asked him to write a
corroborating statement?
Answer: He said he was not permitted to write anything.
N.T., 4/7/15, at 1887-1888.
In addition, the record reflects that Appellee made the following
statements under oath concerning comments from Anthony Amoroso, AIG’s
first insurance adjuster assigned to the claim, regarding the filing of a police
report for the missing jewelry:
Now Claire was told by Anthony Amoroso a day after the
fire and I was there when he said it and I overheard him saying
it -- he was the original insurance adjuster on the job -- do not
make a formal claim with your local Police Department until you
know for sure that the jewelry is not in the house.
[Claire’s husband] found the two bags, but then
subsequently he was finding other loose pieces around. Another
tennis bracelet was found by one of the workers about a week or
so later. So jewelry was being found. So until we knew, until
they cleared out the house --
* * *
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So until they knew, until they cleared out the house and
took everything out of the house and thoroughly checked
everywhere, all the nooks and crannies of the house, they were
told not to file a Police Report, not to file a fraudulent report by
the insurance adjuster. I heard him say that.
* * *
I did not contact the local police because I was told not to.
Because the insurance adjuster told them not to file a false
report.
N.T., 4/7/15, at 1884-1885.
Appellee also offered the following testimony:
Question: . . . Your contention is that you didn’t go to the local
police immediately because you were acting on instructions from
AIG; is that right?
Answer: I wasn’t acting on instructions.
Question: Well, your client was acting on instructions?
Answer: I heard the adjuster, Anthony Amoroso, tell Claire to
not file a false Police Report until you know. Do not file a Police
Report until you know exactly and you’re one hundred percent
sure that the jewelry is not in that house. Do not file a
fraudulent Police Report.
Id. at 1888-1889.
Our careful review of the certified record reflects that the
Commonwealth has misrepresented Appellee’s statements by insinuating
“that Lieutenant Landis told [Appellee] not to file a police report.”
Commonwealth’s Brief at 27 (emphasis in original). See also
Commonwealth’s Brief at 39 (stating that “[a]mple evidence also
demonstrated that [Appellee] claimed Lieutenant Landis told him not to file a
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police report”) (emphasis in original). Interestingly, in its argument, the
Commonwealth has failed to cite to any portion in the record to support a
claim that Appellee specifically stated that Lieutenant Landis told him not to
file a police report concerning the missing jewelry. Indeed, our review
reflects that such statements attributable to Appellee under oath are not
present in the record before us. Accordingly, we will ignore any argument
offered by the Commonwealth to the contrary.5
Regardless of whether these statements actually were false, as alleged
by the Commonwealth, we are left to conclude that the Commonwealth has
failed to establish a prima facie case that Appellee made the statements with
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5
We note that our reading of the certified record does reflect the following
testimony from Appellee under oath:
One thing we discussed, [Lieutenant Landis] cautioned me
to caution Claire not to publicly scream or holler and say that
she felt that the firefighters were responsible for this theft.
Number one, she lives in the area and they may not come
out and fight one of her fires again. Number two, the firefighters
and the police are like brothers.
And [Lieutenant Landis] after -- after Claire had mentioned
this in public the previous day in front of the fire marshal, and in
front of the other people, it got around. And [Lieutenant Landis]
was having a tough time getting officers to come out and do the
night shift patrol -- the night shift security because they were
upset with Claire that she was insinuating that the firefighters
may have something to do with this.
N.T., 4/7/15, at 1886-1887. However, these statements attributable to
Appellee do not establish that he claimed Lieutenant Landis specifically told
him not to file a police report regarding the missing jewelry.
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the intent to defraud the insurer. As previously noted, nothing in the record
supports the suggestion that Appellee had the necessary mens rea to
acquire anything from the insurer. Hence, the Commonwealth’s claim fails.
THEFT BY DECEPTION
The Commonwealth next argues that the trial court erred in
determining that it failed to present a prima facie case that Appellee
committed the crime of theft by deception. Commonwealth’s Brief at 44-45.
In this regard, the Commonwealth contends the following:
It is the Commonwealth’s position that, under the same
reasoning that a prima facie case was established for insurance
fraud, this count of theft by deception related to the jewelry
claim was supported by sufficient evidence to establish a prima
facie case. [Appellee’s] multiple false statements as outlined
above establish that he intentionally created a false impression
to AIG in an attempt to obtain insurance payments in excess of
$10 million.
Commonwealth’s Brief at 45.
The crime of theft by deception is defined as follows:
§ 3922. Theft by deception.
(a) Offense defined. — A person is guilty of theft if he
intentionally obtains or withholds property of another by
deception. A person deceives if he intentionally:
(1) creates or reinforces a false impression,
including false impressions as to law, value, intention
or other state of mind; but deception as to a
person’s intention to perform a promise shall not be
inferred from the fact alone that he did not
subsequently perform the promise[.]
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18 Pa.C.S. § 3922(a)(1). “The mens rea for theft by deception is intent to
defraud.” Commonwealth v. Grife, 664 A.2d 116, 120 (Pa. Super. 1993).
In addition, this Court observed in Commonwealth v. Grife, 664
A.2d 116 (Pa. Super. 1995):
A man is defrauded if, by intentionally false representations of
fact he has been induced to make a donation, or has been
induced to pay money or to deliver property upon receipt of
something quite different from what he understood he was
getting or has been induced to lend money upon the strength of
security which is not what it is represented to be.
Id. at 120 (quoting Rosengarten v. State, 171 So.2d 591, 595 (Fla. App.
1965)) (original emphasis omitted).
Our review of the certified record reflects that AIG did not dispense
any insurance proceeds on the jewelry claim. James O’Keefe, a general
adjuster with AIG who was assigned to the claims related to the 2013 fire at
Clairemont, testified as follows regarding the jewelry claim:
Q Did AIG pay this claim for the stolen jewelry?
A No. We have disclaimed and denied coverage for this loss.
Q Did you issue a denial letter?
A Yes.
N.T., 4/7/15, at 1840. This fact was alluded to by the Commonwealth when
it stated that Appellee “intentionally created a false impression to AIG in an
attempt to obtain insurance payments . . . .” Commonwealth’s Brief at 46
(emphasis added). Thus, it is evident that no property was obtained from
AIG with regard to the jewelry claim. Accordingly, the Commonwealth’s
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assertion that it presented a prima facie case that Appellee committed the
crime of theft by deception lacks merit.
CRIMINAL ATTEMPT TO COMMIT THEFT BY DECEPTION
The Commonwealth next argues that the trial court erred in
determining that it failed to present a prima facie case that Appellee
committed the crime of criminal attempt to commit theft by deception.
Commonwealth’s Brief at 45-46. The Commonwealth states the following:
It is the Commonwealth’s position that under the same
reasoning that a prima facie case was established for insurance
fraud, this count of criminal attempt at theft by deception related
to the jewelry claim was supported by sufficient evidence to
establish a prima facie case. [Appellee’s] multiple false
statements as outlined above establish that he intentionally
created a false impression to AIG in an attempt to obtain
insurance payments in excess of $10 million.
Id.
“A person commits an attempt when, with intent to commit a specific
crime, he does any act which constitutes a substantial step toward the
commission of that crime.” 18 Pa.C.S. § 901(a). “Our Crimes Code is clear
in defining the two (2) elements of the offense of attempt by providing: (1)
that the actor intend to commit an offense; and (2) that the actor take a
substantial step toward completion of the offense.” Commonwealth v.
Henley, 474 A.2d 1115, 1118 (Pa. 1984). To obtain a conviction for
attempted theft by deception, the Commonwealth is required to prove only
that the defendant intended to deceive the victim and took a substantial step
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toward that end. Commonwealth v. Imes, 623 A.2d 859, 862-863 (Pa.
Super. 1993). As our Supreme Court has long observed:
An attempt, in general, is an overt act done in pursuance of an
intent to do a specific thing, tending to the end but falling short
of complete accomplishment of it. In law, the definition must
have this further qualification, that the overt act must be
sufficiently proximate to the intended crime to form one of the
natural series of acts which the intent requires for its full
execution. So long as the acts are confined to preparation only,
and can be abandoned before any transgression of the law or of
others’ rights, they are within the sphere of intent and do not
amount to attempts.
Commonwealth v. Wojdak, 466 A.2d 991, 1001 (Pa. 1983) (quoting
Commonwealth v. Eagan, 42 A. 374, 377 (Pa. 1899)) (emphasis omitted).
As previously discussed, our review of the record reflects that Appellee
made statements under oath pertaining to Claire Risoldi’s concern for the
jewelry left inside of the home during the fire and her behavior in front of
Lieutenant Landis during the fire. These statements were controverted by
testimony from Lieutenant Landis. However, there is no evidence of record
that Appellee made the statements about Claire and the jewelry with the
intent to commit the crime of insurance fraud.
In addition, as mentioned above, Appellee offered testimony regarding
AIG insurance adjuster Anthony Amoroso’s suggestion that a police report
regarding the jewelry be filed only after there was complete certainty that
the jewelry was not in the house so that a fraudulent police report was not
filed. These statements were not directly controverted by Mr. Amoroso.
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Rather, our review reflects Mr. Amoroso offered the following innocuous
testimony regarding the reporting of missing jewelry to the police:
Q Did you tell them that if jewelry was missing they should not
report it to the police immediately?
A I never said that, no.
Q Would that be consistent with your practice and general
insurance industry practice to tell someone who suffered a theft
loss to delay reporting it to the police?
A The policy, as a condition, if there is any theft of any jewelry,
anything in the home, or a mysterious disappearance, it needs
to be reported to the police and we need a Police Report.
N.T., 4/1/15, at 792. This testimony does not refute the testimony offered
by Appellee indicating that the delay in filing a police report was due to
Mr. Amoroso warning Claire to be certain of what jewelry was missing in
order to avoid the filing of a false police report. Accordingly, we fail to see
how Appellee’s testimony regarding the timing of the filing of a police report
was offered with the intent to deceive AIG into paying the insurance claim.
Hence, we discern no error on the part of the trial court in concluding that
the Commonwealth failed to present a prima facie case that Appellee
committed the crime of attempted theft by deception.
CRIMINAL CONSPIRACY
The Commonwealth next argues that the trial court erred in concluding
that the Commonwealth failed to establish a prima facie case that Appellee
committed the crime of criminal conspiracy. Commonwealth’s Brief at 46-
56. The Commonwealth asserts that Appellee “personally delivered the
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altered and forged documents knowing full well their significance and he lied
under oath in an effort to bolster the false Risoldi claims.” Id. at 46. The
Commonwealth points out that the trial court determined that a prima facie
case was established against the members of the Risoldi family on the
corrupt organizations charge and the conspiracy charge based, in part, on
some of the family members “parroting the party line” with regard to the
allegedly missing jewelry. Id. at 50. Thus, the Commonwealth ultimately
alleges Appellee’s similar assertions under oath regarding the jewelry,
coupled with “conduct [that] encompassed far more than being a ‘go-fer’
who ‘parroted the party line’” demonstrate his participation in the
conspiracy. Id. at 55. In essence, the Commonwealth contends that
Appellee “played an active role in the Risoldi scheme to defraud AIG.” Id. at
51.
The crime of criminal conspiracy is set forth in Section 903 of the
Crimes Code providing, in relevant part, as follows:
§ 903. Criminal conspiracy.
(a) Definition of conspiracy. — A person is guilty of
conspiracy with another person or persons to commit a crime if
with the intent of promoting or facilitating its commission he:
(1) agrees with such other person or persons that
they or one or more of them will engage in conduct
which constitutes such crime or an attempt or
solicitation to commit such crime; or
(2) agrees to aid such other person or persons in
the planning or commission of such crime or of an
attempt or solicitation to commit such crime.
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(b) Scope of conspiratorial relationship. — If a person
guilty of conspiracy, as defined by subsection (a) of this section,
knows that a person with whom he conspires to commit a crime
has conspired with another person or persons to commit the
same crime, he is guilty of conspiring with such other person or
persons, to commit such crime whether or not he knows their
identity.
(c) Conspiracy with multiple criminal objectives. — If a
person conspires to commit a number of crimes, he is guilty of
only one conspiracy so long as such multiple crimes are the
object of the same agreement or continuous conspiratorial
relationship.
* * *
(e) Overt act. — No 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.
Furthermore, we have explained the following:
A conviction for criminal conspiracy, 18 Pa.C.S.A. § 903, is
sustained where the Commonwealth establishes that the
defendant entered an agreement to commit or aid in an unlawful
act with another person or persons with a shared criminal intent
and an overt act was done in furtherance of the conspiracy.
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
insufficient. Rather, the Commonwealth must prove that the
defendant shared the criminal intent, i.e., that the Appellant 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 proven through
circumstantial evidence. “The conduct of the parties and the
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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.”
Among the circumstances which are relevant,
but not sufficient by themselves, to prove a corrupt
confederation are: (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.
Commonwealth v. Lambert, 795 A.2d 1010, 1016 (Pa. Super. 2002) (en
banc) (citations omitted).
Our review of the record reflects the trial court held various members
of the Risoldi family for court on multiple charges, including charges of
conspiracy. Trial Court Opinion, 9/15/15, at 15.6 However, the trial court
____________________________________________
6
In doing so, the trial court adopted its reasoning related to the finding that
a prima facie case was established against the members of the Risoldi family
for corrupt organizations. Trial Court Opinion, 9/15/15, at 9. In finding that
Claire and Carl Risoldi should be held for trial, the trial court stated,
“evidence was presented that they both pressed claims with AIG for the
drapes, mural, jewelry, and [additional living expenses].” Id. As to Sheila
Risoldi, the trial court noted the fact that she is a family member struck the
court as “guilt by association.” The trial court then stated, “[Sheila’s]
involvement . . . is based on her family name, the proof of loss statements
she signed, that she stated in her [examination under oath] that she saw the
jewelry bags in the hall, and that Claire was trying to get into the house (on
the day of the fire) to get the bags of jewelry, i.e., that she was parroting
the ‘party line’ regarding those matters.” Id. at 10. Regarding Carla
(Footnote Continued Next Page)
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concluded that there was no such prima facie case presented with regard to
Appellee. Id. at 18-19. We are constrained to agree.
First, we note that Appellee had an association with the Risoldi family
because he was employed as a private investigator. In his capacity, he
attended multiple meetings and examinations under oath provided by family
members.
Second, we observe that there is little, if any, evidence to establish
that Appellee had knowledge of the commission of a crime. Specifically, with
regard to the Commonwealth’s claim that Appellee delivered a binder to AIG
containing “altered and forged documents knowing full well their
significance,” Commonwealth’s Brief at 46, our review of the certified record
reflects no evidence that Appellee was aware of the authenticity of the
materials contained in the binder.
Concerning the Commonwealth’s allegations that Appellee lied under
oath multiple times, we first consider Appellee’s testimony about his
conversation with Anthony Amoroso. We observe that Appellee testified that
_______________________
(Footnote Continued)
Risoldi, the trial court relied upon her family membership, and the fact that
she too “parroted the party line” concerning Claire’s behavior and concern
about the jewelry on the night of the fire. Id. In addition, the trial court
noted Carla’s participation in a telephone call from Claire to a third party,
who was scheduled to testify before the investigative grand jury, about a gift
of jewelry once “it was all done.” Id. at 11. The trial court specifically
stated that “Carla’s participation in this telephone call is telling as she had to
be aware that the purpose of the call was to influence the testimony [the
third party] would give.” Id.
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Mr. Amoroso suggested that the filing of a police report should be accurate
and that the report be made when the family was certain about the missing
jewelry so that a fraudulent report was not presented to the police. N.T.,
4/7/15, at 1884-1885, 1888-1889. This testimony was not contradicted by
Mr. Amoroso.
We next consider Appellee’s testimony about his conversation with
Lieutenant Landis. We observe that Appellee testified that Lieutenant Landis
asked Appellee to caution Claire “not to publicly scream and holler and say
that she felt that the firefighters were responsible for [the] theft.” N.T.,
4/7/15, at 1886. However, Appellee’s testimony does not amount to a
direction from the lieutenant that a police report should not be filed.
Moreover, we note that Lieutenant Landis did not contradict this testimony.
We also consider Appellee’s testimony regarding Claire’s behavior on
the night of the fire. Specifically, Appellee testified about a conversation
with Lieutenant Landis in which he spoke about Claire’s behavior during the
fire and her request that Lieutenant Landis go into the foyer for her and
retrieve the bags of jewelry. N.T., 4/7/15, at 1887. Lieutenant Landis
refuted this testimony. However, this disputed testimony offered by
Appellee, which was supported by other testimony from Risoldi family
members, does not necessarily establish an inference that Appellee had
knowledge of the commission of a crime.
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Third, we consider Appellee’s presence at the scene. Again, we note
that Appellee was employed by the Risoldi family as a private investigator
and was present at various points in time with regard to the insurance claim.
However, we note that there was not a specific scene of the crime as
contemplated in the factors set forth in Lambert. Accordingly, we conclude
that this factor is not particularly relevant to our inquiry.
Fourth, we review Appellee’s participation in the object of the
conspiracy. As mentioned above, Appellee was employed as a private
investigator by the Risoldi family. As such, he was present at various points
in the family’s dealings with AIG. In addition, Appellee gave an examination
under oath. It can only be alleged that Appellee’s testimony regarding a
conversation he had with Lieutenant Landis about Claire’s behavior during
the fire, which was refuted by Lieutenant Landis, amounts to a participation
in the conspiracy. Accordingly, we are left to conclude that this testimony
was not sufficient to furnish a web of evidence linking Appellee to an alleged
conspiracy. Hence, we conclude that the trial court properly determined that
the Commonwealth failed to set forth a prima facie case with regard to the
charge of criminal conspiracy.
FORGERY
The Commonwealth next argues that the trial court erred in concluding
that it failed to establish a prima facie case that Appellee committed the
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crime of forgery. Commonwealth’s Brief at 56-57. The Commonwealth
presents the following argument:
It is the Commonwealth’s position that under the same
reasoning that a prima facie case was established for insurance
fraud, this count of forgery related to the fabricated and altered
documents submitted to AIG by [Appellee] was supported by
sufficient evidence to establish a prima facie case. Accordingly,
the lower court erred by dismissing the count.
Id. at 57. We are constrained to disagree.
The relevant statute regarding forgery provides as follows:
(a) Offense defined. – A person is guilty of forgery if, with
intent to defraud or injure anyone, or with knowledge that he is
facilitating a fraud or injury to be perpetrated by anyone, the
actor:
(1) alters any writing of another without his
authority;
(2) makes, completes, executes, authenticates,
issues or transfers any writing so that it purports to
be the act of another who did not authorize that act,
or to have been executed at a time or place or in a
numbered sequence other than was in fact the case,
or to be a copy of an original when no such original
existed; or
(3) utters any writing which he knows to be forged in
a manner specified in paragraphs (1) or (2) of this
subsection.
(b) Definition. – As used in this section, the word “writing”
includes printing or any other method of recording information,
money, coins, tokens, stamps, seals, credit cards, badges,
trademarks, electronic signatures and other symbols of value,
right, privilege, or identification.
18 Pa.C.S. § 4101.
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To establish the crime of forgery, the Commonwealth must prove that
there was a false writing, that the instrument was capable of deceiving, and
that the defendant intended to defraud. Commonwealth v. Fisher, 682
A.2d 811, 815 (Pa. Super. 1996) (citing Commonwealth v. Dietterick,
631 A.2d 1347, 1352 (Pa. Super. 1993). “By its plain language, the statute
requires only that the act be committed with ‘intent to defraud or injure’, not
that the defendant have succeeded in his endeavor.” Commonwealth v.
Shamberger, 788 A.2d 408, 413 (Pa. Super. 2001) (citing
Commonwealth v. Sheaffer, 23 A.2d 215, 219 (Pa. Super. 1941)). Intent
to defraud is an essential element of forgery. Commonwealth v. Leber,
802 A.2d 648, 651 (Pa. Super. 2002) (citing Dietterick).
As previously discussed, it is undisputed that Appellee delivered to AIG
a binder containing documents relevant to the instant insurance claim.
However, our review of the record reflects that there is a lack of evidence
indicating that Appellee was aware of the particular contents of the binder,
or the authenticity of the documents contained therein. Without such
evidence, we cannot conclude that Appellee delivered the questionable
documents to AIG with an intent to defraud the insurer. Consequently, we
must conclude that the Commonwealth failed to present a prima facie case
of forgery.
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CORRUPT ORGANIZATIONS
The Commonwealth next argues that the trial court erred in concluding
that it failed to establish a prima facie case that Appellee committed the
crime of corrupt organizations. Commonwealth’s Brief at 57-59. In this
regard, the Commonwealth offers the following argument:
The lower court did not specifically address its reasoning
for determining that the Commonwealth failed to establish a
prima facie case for corrupt organizations against [Appellee]. It
is the Commonwealth’s position that under the same reasoning
that a prima facie case was established for insurance fraud and
criminal conspiracy discussed above as well as intimidation of
witness discussed below, this count of corrupt organizations was
supported by sufficient evidence to establish a prima facie case.
As detailed above and below, [Appellee] was associated with the
Risoldi criminal enterprise and directly participated in multiple
acts of insurance fraud, theft, intimidation of a witness,
obstruction of justice, and forgery.
Id. at 58-59.
Regarding corrupt organizations, Section 911 of the Crimes Code
provides, in pertinent part, as follows:
It shall be unlawful for any person employed by or associated
with any enterprise to conduct or participate, directly or
indirectly, in the conduct of such enterprise’s affairs through a
pattern of racketeering activity.
18 Pa.C.S. § 911(b)(3). To sustain a conviction for corrupt organizations,
“the Commonwealth must prove that there was an ongoing organization
engaged in commerce and that the associates of the organization functioned
as a continuing unit....” Commonwealth v. Donahue, 630 A.2d 1238,
1245 (Pa. Super. 1993). This is to “ensure that a criminal defendant is
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being convicted based on evidence of his involvement in the ongoing
enterprise, as the corrupt organization statute intended, and not merely
based on evidence which proves the underlying crimes [were] committed in
furtherance of the alleged enterprise.” Id.
The term “enterprise” is defined as “any individual, partnership,
corporation, association or other legal entity, and any union or group of
individuals associated in fact although not a legal entity, engaged in
commerce and includes legitimate as well as illegitimate entities and
governmental entities.” 18 Pa.C.S. § 911(h)(3). “Racketeering activity” is
defined to include acts that are indictable under various provisions of the
Crimes Code, including Chapter 39 (relating to theft and related offenses),
Section 4117 (relating to insurance fraud), and Chapter 49 (relating to
falsification and intimidation. 18 Pa.C.S. § 911(h)(1)(i). “Racketeering
activity” is also defined to include, inter alia, a conspiracy to commit any of
the offenses set forth in subparagraph (i). 18 Pa.C.S. § 911(h)(1)(iii). The
statute further defines “pattern of racketeering activity” as “a course of
conduct requiring two or more acts of racketeering activity one of which
occurred after the effective date of this section.” 18 Pa.C.S. §911(h)(4).
Our review of the record reveals that Appellee, in his capacity as a
private investigator, was employed by the Risoldi family, which the
Commonwealth contends was the enterprise in question. However, the
Commonwealth has failed to establish that Appellee had knowledge of the
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crimes allegedly being committed by the enterprise. Moreover, our review
reflects a dearth of evidence that Appellee participated in a pattern, i.e., two
or more acts, of racketeering activity. Therefore, we are constrained to
agree with the trial court’s conclusion that the Commonwealth has failed to
set forth a prima facie case that Appellee committed the crimes of corrupt
organizations.
INTIMIDATION OF A WITNESS
The Commonwealth also argues that the trial court erred in concluding
that it failed to establish a prima facie case that Appellee committed the
crime of intimidation of a witness. Commonwealth’s Brief at 59-66. The
Commonwealth contends that, during Appellee’s meeting with jewelry
appraiser Edward T. Foris at Mr. Foris’s home, Appellee “attempted to get
[Mr.] Foris to adopt” as his own documents in the form of jewelry appraisals
that bore the signature of Mr. Foris, but which Mr. Foris disowned. Id. at
60.
The crime of intimidation of witnesses or victims is codified at 18
Pa.C.S. § 4952 and provides the following pertinent definition of the offense:
(a) OFFENSE DEFINED.-- A person commits an offense if, with
the intent to or with the knowledge that his conduct will
obstruct, impede, impair, prevent or interfere with the
administration of criminal justice, he intimidates or attempts to
intimidate any witness or victim to:
* * *
(2) Give any false or misleading information or
testimony relating to the commission of any crime to
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any law enforcement officer, prosecuting official or
judge.
18 Pa.C.S. § 4952(a)(2). Moreover:
actual intimidation of a witness is not an essential element of the
crime. The crime is committed if one, with the necessary mens
rea, “attempts” to intimidate a witness or victim.... The trier of
the facts, therefore, could find that [the defendant] attempted to
intimidate his accuser and that he did so intending or, at least,
having knowledge that his conduct was likely to, impede, impair
or interfere with the administration of criminal justice.... The
Commonwealth is not required to prove mens rea by direct
evidence. Frequently such evidence is not available. In such
cases, the Commonwealth may rely on circumstantial evidence.
Commonwealth v. Beasley, 138 A.3d 39, 48 (Pa. Super. 2016) (citation
omitted).
Our review of the certified record reflects that Mr. Foris offered the
following testimony regarding his meeting with Appellee:
Q. Now, I want to direct your attention back to the spring
months of this past -- of this year, 2015. During that time
period, did you have contact with an individual named Mark
Goldman?
A. Yes.
Q. Can you tell us the circumstances under which that occurred?
A. I was asked -- and I can’t remember who had called me and
asked me -- to speak to him, to try to verify some information
that he had.
Q. He being Mark Goldman?
A. Mark Goldman, yeah.
Q. And where was it that you received this phone call?
A. At my house.
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Q. That’s your house in Trenton?
A. Yes.
Q. Do you remember was it a man or a woman who called you?
A. I can’t remember. I really can’t remember, but I believe it
was a man.
Q. And the man told you that -- what specifically, what did he
tell you about Mark Goldman?
A. That he was an investigator for Mrs. Risoldi and that he
wanted me to verify some appraisal slips that he had.
Q. What did you say to the -- when the person told you that,
what did you say to them?
* * *
A. I said, yes, I would look at it. Yeah.
Q. What happened after that?
A. Mr. Goldman showed up at the house and showed me the
photos of the appraisal slips and asked me whether I could verify
that that was my signature on those.
* * *
Q. Before I show those, the appraisals that Mr. Goldman brought
to you -- now, first of all, where did -- did Mr. Goldman come to
your house?
A. Yes.
Q. Was he with anyone or just by himself?
A. He was by himself.
Q. And can you describe the appraisals that Mr. Goldman
brought to you?
A. As to what?
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Q. You said that he came to your house?
A. He had photostats of appraisal slips for Fairless Hills Auction.
Q. Now, I’m going to show you what’s been marked as Exhibit
212.
* * *
Q. Mr. Foris, you're now looking at what’s been identified as
Commonwealth’s Exhibit 212, which is a packet of appraisals
that say Fairless Hills Auction on the top?
A. Yes.
* * *
Q. . . . Now, Mr. Foris, you have in front of you Exhibit 212. Do
you recognize those documents?
A. They appear to be the ones that he showed me.
Q. He being Mr. Goldman?
A. Correct.
Q. And when he came to your house he identified -- how did he
identify himself?
A. He had an identification card as being a private investigator,
basically.
Q. It said Mark Goldman on the card?
A. Yes.
* * *
Q. Do you recognize those as the documents that Mr. Goldman
showed you?
A. They appear to be the same ones, yes.
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Q. And those appraisals appear to have a signature on them,
Edward T. Foris?
A. Yes.
Q. Did you prepare those appraisals?
A. No.
Q. Now, tell me what transpired when Mr. Goldman came to your
house with those appraisals.
A. Well, he asked me about the appraisals and whether I could
verify my signature. I told him that it appeared to be my
signature, except for the fact that they all looked identical. And
I don’t -- I don’t think anyone ever signs their name identically
one right after the other.
Q. And with respect to the appraisal itself, did you recognize that
as an appraisal you would prepare?
A. As one I prepared?
Q. Yes.
A. No, I didn’t prepare this.
Q. How can you tell you didn’t prepare those appraisals?
A. It’s typed. I’ve never put my signature on a typed appraisal,
ever.
Q. Now, what could you tell Mr. Goldman about those
appraisals?
A. The same thing that I’m telling you, that, you know, I don’t
type up appraisals. And I don’t have someone type them up and
then sign them.
Q. And when you told Mr. Goldman -- when you told Mr.
Goldman that, did anything else happen after that, or did he say
anything to you?
A. Well, he seemed a little upset about it.
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* * *
Q. And backing up to when Mr. Goldman was there, how long
was he at your house?
A. Maybe 20 minutes, a half-hour.
Q. And do you recall if he was taking any notes or writing
anything down?
A. He was taking notes. I’m trying to remember whether he had
recorded anything, but I know he was taking notes.
Q. Did he ask you to sign anything?
A. Not that I can remember.
Q. And when he left, had you asked him to leave, or did he just
leave on his own?
A. No, he just left on his own.
N.T., 11/20/15, at 18-25.
This testimony from Mr. Foris, read in the light most favorable to the
Commonwealth, does not reflect that, at any point during their meeting at
Mr. Foris’s residence, Appellee intimidated or attempted to intimidate
Mr. Foris into giving any false or misleading information or testimony
regarding the appraisals in question. Accordingly, we are constrained to
conclude that the Commonwealth has failed to establish a prima facie case
that Appellee committed the crime of intimidation of a witness.
OBSTRUCTION OF JUSTICE
Next, the Commonwealth argues that the trial court erred in
concluding that it failed to establish a prima facie case that Appellee
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committed the crime of obstruction of justice. Commonwealth’s Brief at 66-
67. The Commonwealth offers the following argument in support of its
claim:
It is the Commonwealth’s position that under the same
reasoning that a prima facie case was established for
intimidation of witness, this count of obstruction of justice was
supported by sufficient evidence to establish a prima facie case.
[Appellee’s] conduct, in conjunction with co-defendant Claire
Risoldi’s actions, demonstrate an effort to influence the
testimony of Edward Foris by use of threats and bribes.
Accordingly, the lower court erred by dismissing the charge.
Id. at 67.
The Crimes Code defines the crime of obstruction of justice as follows:
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 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. § 5101. Our Supreme Court has explained that:
[i]n order to establish that [a defendant] obstructed the
administration of law under section 5101, the Commonwealth
must establish that: (1) the defendant had the intent to obstruct
the administration of law; and (2) the defendant used force or
violence, breached an official duty or committed an unlawful act.
Commonwealth v. Goodman, 676 A.2d 234, 235 (Pa. 1996). As we
observed in Commonwealth v. Snyder, 60 A.3d 165 (Pa. Super. 2013);
[i]n evaluating § 5101 convictions, our courts have explained
that § 5101 is substantially based upon the Model Penal Code
section 242.1. As stated in the comment to section 242.1 of the
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Model Penal Code “[t]his provision is designed to cover a broad
range of behavior that impedes or defeats the operation of
government.”
Id. at 175 (case citations omitted).
As set forth in the testimony in our review of the charge of intimidation
of a witness, it is undisputed that Appellee did not use force or violence or
breach an official duty when he met with Mr. Foris regarding the appraisals
that bore Mr. Foris’s signature. Moreover, as discussed previously in this
decision, it is our conclusion that the Commonwealth has not shown that
Appellee committed an unlawful act by visiting Mr. Foris and discussing the
appraisals. Accordingly, the Commonwealth’s contrary claim lacks merit.
CRIMINAL CONSPIRACY TO INTIMIDATE A WITNESS
The Commonwealth last argues that the trial court erred in concluding
that it failed to establish a prima facie case that Appellee committed the
crime of criminal conspiracy to intimidate a witness. Commonwealth’s Brief
at 67-68. In this regard, the Commonwealth presents the following
argument:
It is the Commonwealth’s position that under the same
reasoning that a prima facie case was established for insurance
fraud and the related criminal conspiracy as well as intimidation
of witness, this count of obstruction of justice [sic] was
supported by sufficient evidence to establish a prima facie case.
[Appellee’s] participation in the overall conspiracy was detailed
above and amply established. His efforts to influence Edward
Foris were clearly made in conjunction with Claire Risold[i]’s
conduct on the heels of [Appellee’s] own efforts. It is reasonable
to infer that [Appellee] agreed with Risoldi to attempt to coerce
[Mr.] Foris into adopting the fabricated appraisals. Accordingly,
based on all of the above, it is clear that the Commonwealth
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established a prima facie case and the lower court erred in
dismissing the charge.
Id.
We set forth the relevant law pertaining to the crimes of criminal
conspiracy and intimidation of a witness above. Therefore, we will not
repeat it here.
In support of its claim, the Commonwealth infers that Appellee
attempted in influence Mr. Foris and that his efforts to do so were in
conjunction with Claire’s efforts. However, our thorough review of the
record reflects no such evidence. The only evidence that links Appellee’s
visit with the telephone call and visit from Claire was the following testimony
from Mr. Foris:
A. . . . And right after [Appellee] left, I had gotten a --
I’m trying to remember now how the sequence went. You have
to understand, I just recently lost my wife, so I’m a little bit
upset here.
I’m trying to remember whether Mrs. Risoldi, or Claire, had
called me and asked me to -- I believe she did call me and asked
me if I would verify that I had done those, and I told her no.
And she said, well, I want to do something for you. She
said, can I send you some money or something. I said, no. And
shortly thereafter we received -- my wife and I received at the
house some flowers and a fruit basket.
And then shortly after that, I believe it was, not too long
after, Mrs. Risoldi showed up at the house and was sort of
begging me to say that I had signed these.
Q. When she showed up -- do you know about how long
after [Appellee] was there that Mrs. Risoldi showed up?
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A. It wasn’t too much longer, couldn’t have been not a
month, I know that.
N.T., 11/20/15, at 24-25.
This evidence lacks a specific connection between Appellee’s conduct in
visiting Mr. Foris and Claire’s conduct in phoning Mr. Foris, sending a fruit
basket, and then visiting Mr. Foris’s home. Indeed, Mr. Foris was equivocal
in the timing of events, and how much time elapsed between Appellee’s visit
and the contact from Claire. Moreover, the only time frame that Mr. Foris
specified for certain was that Claire visited his home “not too much longer”
after Appellee’s visit to his home. He then specified that the visit “couldn’t
have been not a month [later].” This ambiguous testimony was not
sufficient to establish a prima facie case of conspiracy between Appellee and
Claire to intimidate a witness. Hence, the Commonwealth’s contrary claim
lacks merit.
Order affirmed.
Judge Solano joins the Memorandum.
Judge Platt files a Dissenting Statement.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/18/2017
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