Com. v. Ungard, T., Jr.

J-A28020-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
THOMAS H. UNGARD, JR. :
:
Appellant : No. 1209 MDA 2017

Appeal from the Judgment of Sentence Entered October 12, 2011
In the Court of Common Pleas of Lycoming County
Criminal Division at No(s): CP-41-CR-0001398-2007

BEFORE: LAZARUS, J., OLSON, J., and MUSMANNO, J.

MEMORANDUM BY OLSON, J.: FILED MARCH 06, 2019

Appellant, Thomas H. Ungard, Jr., appeals from the judgment of

sentence entered on October 12, 2011, as made final by the denial of his post-

sentence motion on July 6, 2017. We affirm in part and reverse in part.

Appellant served as coordinator for the Lycoming County Drug Task

Force (“Task Force”), which frequently obtained vehicles through criminal

and/or civil forfeiture. In July 2006, the District Attorney learned that

Appellant and the Williamsport police chief went on a personal trip to Canada

in a forfeited vehicle. When confronted, Appellant paid restitution to the Task

Force in an amount equal to the fair market rental value of the vehicle. The

Lycoming County District Attorney removed Appellant as coordinator of the

Task Force and referred the case to the Attorney General of Pennsylvania for

possible prosecution.
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The Attorney General’s investigation revealed that, on two occasions,

Appellant engaged in simulated sales1 of two forfeited vehicles. Appellant and

Adrian Heffley (“Heffley”) completed MV-4ST forms which made it appear as

though the forfeited vehicles were transferred initially to Heffley and,

thereafter, to members of Appellant’s family.2 During the investigation,

Appellant asked or encouraged Heffley to lie to investigators by stating that

he bought the vehicles, performed maintenance thereon, and then resold the

vehicles to Appellant’s family members listed on the MV-4ST forms.

On September 25, 2007, the Commonwealth charged Appellant via

criminal information with five counts of tampering with public records or

information (“tampering”),3 four counts of theft by failure to make required

disposition of funds (“theft”),4 conspiracy to commit tampering,5 obstructing

the administration of law or other governmental function (“obstruction”),6 and

____________________________________________

1 See Black’s Law Dictionary, 1366 (8th Ed. 1990) (“A sale in which no price
or other consideration is paid or intended to be paid, and in which there is no
intent to actually transfer ownership.”).

2 Appellant knew Heffley was a mechanic at a garage where Appellant had
repair work performed.

3 18 Pa.C.S.A. § 4911(a)(1), (a)(3).

4 18 Pa.C.S.A. § 3927(a).

5 18 Pa.C.S.A. §§ 903, 4911.

6 18 Pa.C.S.A. § 5101.

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conflict of interest.7 The trial court dismissed four counts of tampering and

one count of theft for failure to make a prima facie showing that Appellant

committed those offenses. The trial court also denied the Commonwealth

leave to amend the criminal information and suppressed certain evidence.

Later, the Commonwealth appealed. This Court reversed the dismissal of the

tampering and theft charges, reversed the decision barring the

Commonwealth from filing an amended criminal information, affirmed the

suppression ruling, and remanded for further proceedings. See

Commonwealth v. Ungard, 15 A.3d 540 (Pa. Super. 2010) (unpublished

memorandum).

On remand, Appellant waived his right to counsel and represented

himself at trial. On July 22, 2011, a jury convicted Appellant of two counts of

tampering and obstruction. Appellant requested the assistance of counsel

during post-trial proceedings, including direct appeal. The trial court denied

that request and, on October 12, 2011, sentenced Appellant to an aggregate

term of 18 months’ probation. This Court affirmed the judgment of sentence

and our Supreme Court denied allowance of appeal. Commonwealth v.

Ungard, 68 A.3d 367, 2013 WL 11279623 (Pa. Super. 2013) (unpublished

memorandum), appeal denied, 77 A.3d 1260 (Pa. 2013). Appellant did not

____________________________________________

7 18 Pa.C.S.A. § 1103(a).

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begin serving his probationary term after our Supreme Court denied allowance

of appeal but the record does not explain the reason for this delay.

On August 8, 2014, Appellant filed a pro se PCRA petition. The PCRA

court appointed counsel who filed an amended petition. Thereafter, the PCRA

court granted in part and denied in part Appellant’s PCRA petition. It

reinstated Appellant’s direct appellate rights, together with his right to file a

post-sentence motion, nunc pro tunc. It denied relief on Appellant’s remaining

claims. On February 9, 2017, Appellant filed a post-sentence motion. On July

6, 2017, the trial court denied that motion. This direct appeal followed.8

Appellant presents three issues for our review:

1. Whether the trial court erred by concluding that the evidence was
sufficient to [prove that Appellant obstructed the administration
of law or governmental function by an unlawful act?]

2. Whether the trial court erred by concluding that [Appellant could
be convicted of obstruction for conduct directed at a
nongovernmental agent?]

3. Whether the trial court erred by denying [Appellant’s] motion to
dismiss two counts of tampering[?]
____________________________________________

8 We commend counsel and the PCRA court for cooperating during the
pendency of Appellant’s PCRA petition and after the PCRA court granted relief.
The parties and PCRA court worked together to set deadlines and interpret
court orders. We note, however, that the off-the-record cooperation in this
case led to subject matter jurisdiction concerns. After questioning counsel
regarding the jurisdictional concerns at oral argument, and ordering two
rounds of briefing focusing on those concerns, we are satisfied that we have
jurisdiction to reach the merits of this appeal. We caution counsel that matters
which may impact a court’s subject matter jurisdiction should be made part
of the certified record.

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Appellant’s Brief at 8.9

Appellant’s first two issues challenge the sufficiency of the evidence.

“The determination of whether sufficient evidence exists to support the verdict

is a question of law; accordingly, our standard of review is de novo and our

scope of review is plenary.” Commonwealth v. Edwards, 177 A.3d 963,

969 (Pa. Super. 2018) (citation omitted). In assessing Appellant’s sufficiency

challenge, we must determine “whether viewing all the evidence admitted at

trial in the light most favorable to the [Commonwealth], there is sufficient

evidence to enable the fact-finder to find every element of the crime beyond

a reasonable doubt.” Commonwealth v. Sweitzer, 177 A.3d 253, 257 (Pa.

Super. 2017) (citation omitted). “[T]he facts and circumstances established

by the Commonwealth need not preclude every possibility of innocence. . . .

The finder of fact, while passing upon the credibility of witnesses and the

weight of the evidence produced, is free to believe all, part, or none of the

evidence.” Commonwealth v. Davison, 177 A.3d 955, 957 (Pa. Super.

2018) (cleaned up).

The Pennsylvania Crimes Code provides that:

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
____________________________________________

9 We have renumbered the issues for ease of disposition.

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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.

Thus, the crime has two elements: (1) intentional obstruction,

impairment, or perversion of the administration of law or other governmental

function by (2) (i) force, (ii) violence, (iii) physical interference or obstacle,

(iv) breach of official duty, or (v) any other unlawful act. See

Commonwealth v. Gentile, 640 A.2d 1309, 1312 (Pa. Super. 1994), appeal

dismissed, 675 A.2d 710 (Pa. 1996). Appellant argues that the evidence was

insufficient to satisfy the second element of the offense. With respect to this

element of the offense, the trial court instructed the jury that, in order to

convict Appellant, it must find that Appellant obstructed the administration of

law or other governmental function via an unlawful act. N.T., 7/22/11, at 14-

15.

At trial, it was the Commonwealth’s theory that Appellant obstructed the

administration of law through an unlawful act when he encouraged Heffley to

lie to investigators. Appellant claims he did not commit an unlawful act

because solicitation to avoid one’s own prosecution is not a criminal offense.

The Commonwealth counters Appellant’s contention in two ways. First, it

contends that the law-of-the-case doctrine prevents us from reaching the

merits of this issue. Alternatively, the Commonwealth argues that the

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evidence was sufficient to prove that Appellant obstructed the administration

of law or other governmental function via an unlawful act.

The Commonwealth argues that we may not reach the merits of

Appellant’s argument because of the law-of-the-case doctrine. The law-of-

the-case doctrine provides, inter alia, that “upon a second appeal, an appellate

court may not alter the resolution of a legal question previously decided by

the same appellate court[.]” Zane v. Friends Hosp., 836 A.2d 25, 29 n.6

(Pa. 2003) (citation omitted). We conclude that the law-of-the-case doctrine

does not bar us from reaching the merits of this issue.

Although we are unaware of any cases directly on point, we find

instructive this Court’s decision in Commonwealth v. O’Bidos, 849 A.2d 243

(Pa. Super. 2004), appeal denied, 560 A.2d 123 (Pa. 2004). In O’Bidos, the

defendant filed a direct appeal. His counsel failed to file a concise statement.

This Court affirmed the judgment of sentence. Despite the fact that counsel’s

omission waived the defendant’s claims, this Court addressed the sufficiency

challenge. This Court declined to address the merits of the remaining waived

issues.

O’Bidos then filed a PCRA petition arguing that counsel was ineffective

for not filing a concise statement. The PCRA court denied relief; however, this

Court reversed and remanded with instructions for the PCRA court to reinstate

O’Bidos’ direct appeal rights nunc pro tunc. A second direct appeal followed.

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On the second direct appeal, O’Bidos raised the same issues that he

raised in his first direct appeal. This Court held that it was bound by the law-

of-the-case doctrine with respect to the sufficiency challenge, the one issue

that the prior panel decided on the merits. See id. at 251-253. This Court,

however, addressed Appellant’s remaining claims of error including those that

the prior panel found waived on the first direct appeal. See id. at 251.

This disposition is sensible. The defendant in O’Bidos obtained

appellate review of his sufficiency challenge with the effective assistance of

counsel and, therefore, the law-of-the-case doctrine barred a subsequent

panel of this Court from revisiting the prior panel’s decision on the merits. On

the other hand, in the first direct appeal, the defendant received ineffective

assistance of counsel with respect to his remaining claims of error. Hence,

the subsequent panel was not constrained by the prior panel’s disposition of

those issues.

O’Bidos indicates that we may engage in merits review of Appellant’s

sufficiency challenge. In O’Bidos, the defendant was denied the effective

assistance of counsel with respect to those issues this Court found waived

during his first appeal. Similar to the abandonment that occurred in O’Bidos,

Appellant here was denied any assistance of counsel with respect to his first

appeal. It would create perverse incentives for trial courts and prosecutors if

we were to hold that a defendant who is denied his right to counsel on a direct

appeal forever forfeits all claims disposed of in the pro se direct appeal. It

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would eviscerate Appellant’s right to effective assistance of counsel.

Accordingly, we proceed to analyzing whether the evidence was sufficient to

prove that Appellant obstructed the administration of law or other

governmental function.

The Commonwealth proceeded under a theory that Appellant obstructed

and/or impaired the administration of law or other governmental function by

soliciting Heffley’s assistance in hindering the ensuing investigation.10 See

Ungard, 2013 WL 11279623 at *9 (citation omitted); Commonwealth’s Brief

at 28. Appellant argues that, pursuant to the hindering prosecution statute,

he cannot be criminally culpable for obstructing his own prosecution. The

Crimes Code makes it an offense to “hinder the apprehension, prosecution,

conviction or punishment of another[.]” 18 Pa.C.S.A. § 5105(a) (emphasis

added). By the plain language of the statute, one cannot hinder prosecution

of oneself. Since Appellant could not be found guilty of hindering his own

prosecution, he reasons that he could not be culpable for soliciting that

offense. Appellant further argues that because he could not solicit a hindrance

to his own prosecution, there was no unlawful act that supported the

obstruction charge.

____________________________________________

10 Appellant may have obstructed the administration of law or other
governmental function via some other unlawful act, e.g., solicitation to violate
18 Pa.C.S.A. § 4904(a)(2) (unsworn falsification to authorities). The
Commonwealth, however, did not make this argument at trial. We decline to
find that the jury was aware of the intricacies of the Crimes Code and
speculate that the jury found Appellant guilty on this basis.

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J-A28020-18

The Crimes Code provides that “[i]t is a defense to a charge of

solicitation or conspiracy to commit a crime that if the criminal object were

achieved, the actor would not be guilty of a crime under the law defining the

offense[.]” 18 Pa.C.S.A. § 904(b). Since Appellant cannot be found guilty of

hindering his own prosecution, it follows that he cannot, under section 904(b),

solicit such offense. The Commonwealth cites Commonwealth v. Hacker,

15 A.3d 333 (Pa. 2011), Commonwealth v. Bricker, 41 A.3d 872 (Pa. Super.

2012), and Commonwealth v. Trignani, 483 A.2d 862 (Pa. Super. 1984) in

support of its argument that section 904(b) is inapplicable in this case.

According to the Commonwealth, ruling in favor of Appellant would conflict

with those decisions. This argument is unavailing.

In the cases cited by the Commonwealth, the reviewing courts held that

the defendant solicitors could be found guilty of solicitation even though the

targets of their solicitation were incapable of committing the offenses they

were encouraged to carry out. This case presents an entirely different

scenario because it is Appellant, the defendant solicitor, who is legally

incapable of committing the underlying offense of hindering his own

prosecution. In similar situations, this Court has previously recognized that

the focus of the solicitation statute is on the solicitor, not the target of his or

her solicitation.

In Commonwealth v. Fisher, 627 A.2d 723 (Pa. Super. 1993), appeal

denied, 639 A.2d 24 (Pa. 1994), the defendant was charged with solicitation

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to possess a controlled substance with intent to deliver and/or delivery of a

controlled substance. This Court concluded that, based on the facts of that

case, even if the target of Fisher’s solicitations had, in fact, delivered the

controlled substance, Fisher would not have been guilty of delivery of a

controlled substance and/or possession with intent to deliver a controlled

substance. This Court, therefore, held that the defendant “should not have

been charged with solicitation to commit that offense. Section 904 explicitly

prohibits such a charge.” Id. at 734; see also Commonwealth v. Wilson,

442 A.2d 760, 764 (Pa. Super. 1982), aff’d in part and vacated in part, 447

A.2d 1381 (Pa. 1982) (per curiam) (“[t]he statute addresses itself to the act

of the solicitor in obtaining another individual’s ‘complicity’ in a crime.”).

The Commonwealth also contends that Appellant’s “position ignores the

fact if a defendant solicits another to commit a crime with the intent of

promoting or facilitating it, he is guilty of the solicited crime as an accomplice.”

Commonwealth’s Brief at 32. We disagree. Hindering prosecution is defined

in such a way that Appellant’s conduct is inevitably incident to Heffley’s

commission of that offense. Appellant is the “another” that must be present

in order for Heffley to hinder the prosecution. This is similar to the pregnant

woman having an illegal abortion discussed by the Commonwealth in its brief.

Hence, pursuant to 18 Pa.C.S.A. § 306(f),11 and the cases cited by the

____________________________________________

11 That section provides that:

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Commonwealth, Appellant cannot be deemed an accomplice to Heffley’s

hindering his prosecution. To the extent that the Commonwealth argues that

solicitation is the “offense” for purposes of section 306(f), that argument is

without merit. The “offense” must be a substantive offense and not another

inchoate offense. There can be no inchoate liability if there is no liability for

the underlying offense.

As the Commonwealth notes in its brief, section 904(b) is taken

verbatim from Model Penal Code § 5.04. The comment to that section of the

Model Penal Code states that it “make[s] the scope of liability for conspiracy

and solicitation congruent with the provisions of Section 2.06 on the liability

____________________________________________

Unless otherwise provided by this title or by the law defining the
offense, a person is not an accomplice in an offense committed
by another person if:

(1) he is a victim of that offense;

(2) the offense is so defined that his conduct is inevitably
incident to its commission; or

(3) he terminates his complicity prior to the commission of the
offense and:

(i) wholly deprives it of effectiveness in the commission of the
offense; or

(ii) gives timely warning to the law enforcement authorities or
otherwise makes proper effort to prevent the commission of the
offense.

18 Pa.C.S.A. § 306(f).

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of acc[omplices].” Model Penal Code § 5.04 cmt. As section 5.04 makes

solicitation congruent with the accomplice liability theory, we cannot construe

section 306 and section 904 in the manner proposed by the Commonwealth.

Doing so would make them incongruent.

The Commonwealth also argues that our analysis is inconsistent with

the purpose of the solicitation statute. Again, we disagree. Although the

purpose of the solicitation statute is broad, our General Assembly placed a

limit on the scope of the solicitation statute by passing section 904(b). This

Court’s prior decisions, cited above, show that courts do not read section

904(b) narrowly because of the overall purpose of the solicitation statute.

There is no doubt that Appellant acted nefariously by asking Heffley to

hinder prosecution by lying to investigators. Nevertheless, based on the plain

language of the relevant statutes and the binding case law, we conclude that

this conduct cannot constitute solicitation to hinder another’s prosecution, the

only theory the Commonwealth advanced at trial for the unlawful act that

supported Appellant’s obstruction charge. Accordingly, we conclude that the

evidence was insufficient to convict Appellant of obstruction and reverse that

conviction.12

____________________________________________

12 Because we grant Appellant relief on this argument, we need not address
his alternative reason for reversing his obstruction conviction.

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In his final issue, Appellant argues that the trial court erred in not

dismissing the two tampering charges as de minimis infractions.13 “We review

a trial court's refusal to dismiss an infraction as de minimis for an abuse of

discretion.” Commonwealth v. Toomer, 159 A.3d 956, 959 (Pa. Super.

2017), appeal denied, 170 A.3d 979 (Pa. 2017) (citations omitted).

The Crimes Code provides that:

The court shall dismiss a prosecution if, having regard to the
nature of the conduct charged to constitute an offense and the
nature of the attendant circumstances, it finds that the conduct of
the defendant:

(1) was within a customary license or tolerance, neither expressly
negatived by the person whose interest was infringed nor
inconsistent with the purpose of the law defining the offense;

(2) did not actually cause or threaten the harm or evil sought to
be prevented by the law defining the offense or did so only to an
extent too trivial to warrant the condemnation of conviction; or

(3) presents such other extenuations that it cannot reasonably be
regarded as envisaged by the General Assembly or other authority
in forbidding the offense.

18 Pa.C.S.A. § 312(a).

In support of his argument, Appellant focuses on the label the

Commonwealth used to describe the transactions in question. Appellant is

correct that the Commonwealth used the incorrect term. Appellant engaged

____________________________________________

13Appellant was convicted of tampering with the two MV-4ST forms discussed
above.

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in “simulated sales” and not “sham transactions” or a “straw purchase.”14 This

lack of precision in defining Appellant’s conduct, however, does not entitle him

to relief under section 312. Instead, as Appellant argues in his brief, the trial

court was required to consider the factual circumstances of Appellant’s case

to determine if his infractions were de minimis.

Appellant repeatedly argues that he did no pecuniary harm to either a

person or the Commonwealth. He also contends that “there [was] no victim”

with respect to his tampering offenses. Appellant’s Brief at 36. This argument

fails because the General Assembly did not criminalize tampering to protect

victims. Instead, our General Assembly made a policy decision that, in order

for public records to be reliably accepted as definitive statements of what

occurred, there must be criminal penalties attached to tampering with those

records. Hence, the lack of pecuniary loss, or an identifiable victim, does not

indicate that the trial court abused its discretion by denying Appellant’s motion

to dismiss.

Appellant argues that programs by the Pennsylvania Department of

Revenue and Pennsylvania Department of Transportation to ensure collection

of the appropriate amount of sales tax for vehicle transactions indicate that

his infractions were de minimis. He contends that these programs remedy

any harm caused by the tampering charges brought in this case. This

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14 See note 1, supra.

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argument is without merit. Neither the Pennsylvania Department of Revenue

nor Pennsylvania Department of Transportation have the authority to

prosecute alleged criminals. Instead, the Attorney General or a District

Attorney must prosecute crimes. Hence, the lack of prosecutions by the

Pennsylvania Department of Revenue and Pennsylvania Department of

Transportation is unavailing.

When considering the totality of the circumstances, it is important to

recognize that Appellant was trusted with leading the Task Force. He betrayed

that trust by using a forfeited vehicle for private use and only reimbursing the

Task Force when confronted by the District Attorney. He further betrayed that

trust by tampering with public records in an attempt to shield his dealings

from public scrutiny. Such actions decreased the public’s trust in the Task

Force’s records. The trial court reasonably concluded that this was not a de

minimis infraction.

Appellant avers that “[w]hen looking at whether an infraction is de

minimis, [c]ourts have also looked at whether administrative punishment has

dealt with a defendant sufficiently enough to avoid the need for criminal

conviction.” Appellant’s Brief at 38. Since existence of administrative

remedies did not deter Appellant, the facts of this case illustrate why the

administrative punishment associated with tampering with a title transfer form

is insufficient to deter criminal conduct. If a public official is aware that he or

she will have a criminal conviction, and possibly lose his or her pension, the

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probability that public official will tamper with records decreases dramatically.

Hence, contrary to Appellant’s argument, administrative remedies are not

sufficient to deter such criminal conduct.

We may not review Appellant’s de minimis argument de novo. Instead,

we review whether the trial court abused its discretion in denying Appellant’s

motion to dismiss. It is immaterial whether we, as a reviewing court, would

have granted Appellant’s motion to dismiss. For the reasons set forth above,

we conclude that the trial court did not abuse its discretion by denying

Appellant’s motion to dismiss. As our reversal of Appellant’s obstruction

conviction does not upset the trial court’s overall sentencing scheme, we

decline to remand this matter for further proceedings.

Judgment of sentence affirmed in part and reversed in part. Jurisdiction

relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 03/06/2019

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