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2019 PA Super 176
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
RICHARD HOLSTON
Appellee No. 223 EDA 2016
Appeal from the Order December 21, 2015
In the Court of Common Pleas of Bucks County
Criminal Division at No: CP-09-CR-0005331-2015
BEFORE: GANTMAN, P.J., BENDER, P.J.E., PANELLA, J., SHOGAN, J.,
LAZARUS, J., STABILE, J., DUBOW, J., NICHOLS, J., and
MCLAUGHLIN, J.
DISSENTING OPINION BY STABILE, J.: FILED MAY 31, 2019
The Majority concludes the Commonwealth failed to establish a prima
facie case against Appellee for perjury or insurance fraud and waived its
claims of criminal conspiracy and obstruction of justice for failure to include
records necessary for this Court’s review. Because I believe the
Commonwealth satisfied its burden of establishing a prima facie case on the
four enumerated charges and has not waived any claims, I respectfully
dissent.
As this Court explained in Commonwealth v. Dantzler, 135 A.3d
1109 (Pa. 2016) (en banc), “[w]e review a decision to grant a pre-trial
petition for a writ of habeas corpus by examining the evidence and
reasonable inferences derived therefrom in a light most favorable to the
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Commonwealth.” Id. at 1111 (citations omitted). In Dantzler, we
recognized that our Supreme Court, in Commonwealth v. Karetny, 880
A.2d 505 (Pa. 2005), rejected this Court’s application of an abuse of
discretion standard on review of a pre-trial habeas matter when determining
whether the Commonwealth presented prima facie evidence of the crimes
charged. Id. at 1112. “[T]he Commonwealth’s prima facie case for a
charged crime is a question of law as to which an appellate court’s review is
plenary.” Id. (quoting Karetny, 880 A.2d at 513).
In Commonwealth v. Ouch, 199 A.3d 918 (Pa. Super. 2018), this
Court observed:
“A prima facie case consists of evidence, read in the light most
favorable to the Commonwealth, that sufficiently establishes
both the commission of a crime and that the accused is probably
the perpetrator of that crime.” Commonwealth v. Black, 108
A.3d 70, 77 (Pa. Super. 2015) (citation omitted). As we have
explained previously:
The Commonwealth establishes a prima facie case when it
produces evidences that, if accepted as true, would
warrant the trial judge to allow the case to go to a jury.
The Commonwealth need not prove the elements of the
crime beyond a reasonable doubt; rather, the prima facie
standard requires evidence of the existence of each and
every element of the crime charged. Moreover, the
weight and credibility of the evidence are not factors
at this stage, and the Commonwealth need only
demonstrate sufficient probable cause to believe the
person charged has committed the offense. Inferences
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.
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Commonwealth v. Marti, 779 A.2d 1177, 1180 (Pa. Super.
2011) (internal citations and quotations omitted) (emphasis
added). Moreover, “suspicion and conjecture are not evidence
and are unacceptable as such.” Commonwealth v. Packard,
767 A.2d 1068, 1071 (Pa. Super. 2001) (citations omitted).
Proof beyond a reasonable doubt is not required. Black, 108
A.3d at 70; see [Commonwealth v. McBride, 595 A.2d, 589,
591 (Pa. 1991)] (noting that the prima facie hurdle is less
demanding than the Commonwealth’s burden at trial of proving
guilt beyond a reasonable doubt).
Id. at 923.
The Majority concluded the trial court correctly dismissed the charges
against Appellee because the Commonwealth failed to establish a prima facie
case for any of the four charged crimes.1 As we recognized in Ouch,
“It is settled that the evidentiary sufficiency, or lack thereof, of
the Commonwealth’s prima facie case for a charged crime is a
question of law as to which an appellate court’s review is
plenary.” Commonwealth v. Karetny, 583 Pa. 514, 880 A.2d
505, 513-14 (2005) (citations omitted). “[T]he trial court is
afforded no discretion in ascertaining whether, as a matter of
law and in light of the facts presented to it, the Commonwealth
has carried its pre-trial prima facie burden to make out the
elements of a charged crime.” Id. at 513. Therefore, we are
not bound by the legal determinations of the trial court.
Commonwealth v. Dantzler, 135 A.3d 1109, 1112 (Pa. Super.
2016).
Id.
As reflected above, we are to examine the record to ascertain whether
the Commonwealth has established a prima facie case of the crimes
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1Although the Majority determined the claims relating to criminal conspiracy
and obstruction of justice were waived for lack of an adequate record, the
Majority suggested those claims would fail, even if not waived. See Majority
Op. at 21-26; 29-31.
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charged. In doing so we are to read the evidence in the light most favorable
to the Commonwealth’s case and give effect to inferences reasonably drawn
from the evidence of record. Again, at the preliminary hearing stage, the
Commonwealth is not required to prove the elements of the crimes beyond a
reasonable doubt but is required to present evidence of the existence of
each element of the crimes charged.
With regard to perjury, the Majority provides the statutory definition of
the crime, recognizing a person is guilty of perjury “if, in any official
proceeding, he makes a false statement under oath . . . when the statement
is material and he does not believe it to be true.” Majority Op. at 9 (quoting
18 Pa.C.S.A. § 4902(a)). Further, a false statement is material “if it could
have affected the court or outcome of the proceeding” and “the test of the
materiality of a false statement is whether it can influence a fact-finder, not
whether it does.” Id. (quoting Commonwealth v. Lafferty, 419 A.2d 518,
521-22 (Pa. Super. 1980) (citations omitted)).
As the Commonwealth contends, the basis of the perjury charge was
the false testimony, under oath, at the September 16, 2014 grand jury
hearing during which Appellee testified he could not provide documentation
related to the Risoldi window treatments because Summerdale Mills had
gone paperless and his computer hard drive and back-up system had failed.
Commonwealth Brief at 20. Appellee claimed he conducted an exhaustive
search for documents relating to Risoldi window treatments, yet he produced
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only 68 pages of documents consisting of diagrams for window treatment
fabrication. Id.
The recovery of more than 450 pages of documents during execution
of a search warrant three weeks later—including invoices, work orders,
estimates, shipping logs, payment logs, and installation logs—underscores
Appellee’s dishonesty, especially in light of the 189 pages of Risoldi
documents recovered from the office that had Appellee’s name on the door.
Id. at 20-21 (citing, inter alia, N.T., 8/19/15 at 15-53 and Receipt/Inventory
of Seized Property, 10/9/14). Viewing the evidence in the light most
favorable to the Commonwealth, including reasonable inferences drawn from
that evidence, I find the evidence was sufficient to establish a prima facie
case of perjury relating to Appellee’s testimony to the grand jury about the
existence of Risoldi documents and the fact Summerdale Mills’ computers
were inoperable, matters material to the Risoldi insurance claim.
With regard to the criminal conspiracy charge, the Majority concludes
the claim is waived for failure to include documents in the certified record.
Majority Op. at 19-21. Regardless, the Majority indicates the claim would
“fail[] under generally applicable legal principles” even if the record were
complete. Id. at 21. I disagree.
As the Commonwealth recognizes:
The essence of a criminal conspiracy is a common
understanding, no matter how it came into being, that a
particular criminal objective be accomplished. Therefore, a
conviction for conspiracy requires proof of the existence of a
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shared criminal intent. An explicit or formal agreement to
commit crimes can seldom, if ever, be proved and it need not
be, for proof of a criminal partnership is almost invariably
extracted from the circumstances that attend its activities.
Thus, a conspiracy may be inferred where it is demonstrated
that the relation, conduct, or circumstances of the parties, and
the overt acts of the co-conspirators sufficiently prove the
formation of a criminal confederation.
The conduct of the parties and the circumstances surrounding
their conduct may create a web of evidence linking the accused
to the alleged conspiracy beyond a reasonable doubt.
Commonwealth v. Ruiz, 819 A.2d 92, 97 (Pa. Super. 2003) (citation
omitted). The Commonwealth argues that the Risoldis’ investigator, Mark
Goldman,2 delivered a binder of documents to the Risoldis’ insurance carrier,
American International Group, Inc. (“AIG”), and to the Office of the Attorney
General after the Attorney General’s search warrant was executed at
Summerdale Mills. According to testimony from AIG’s adjuster, the binder
included documents relating to the Risoldis’ window treatments. While the
binder was not included in the certified record, there was testimony relating
to documents included in the binder, including various “invoices” ostensibly
from Summerdale Mills that listed dollar amounts of charges without any
description of services supporting the charges. Importantly, several
reflected Summerdale Mills’ name without an “e” at the end of Summerdale.
____________________________________________
2 Goldman was named in the grand jury’s December 2014 presentment,
along with Appellee and the Risoldis. See Majority Op. at 3.
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These documents were different from the ones the adjuster previously
received. N.T., March 30, 2015 Preliminary Hearing Proceedings, at 1785.
To put this matter in context, it is important to note that Claire Risoldi
claimed AIG was harassing Summerdale Mills. In order that her own
reputation would not be impugned, Claire instructed the adjuster not to
contact Summerdale Mills directly, indicating she would obtain whatever AIG
might need from Summerdale Mills. Id. at 1766. The adjuster acceded to
Claire’s demand. The testimony reflects that the documents in the binder
were provided by the Risoldis’ investigator not only to the adjuster but also
to Appellee’s counsel. N.T., 10/15/15, at 22. As the Commonwealth
appropriately suggests, and considering the evidence and reasonable
inferences in a light favorable to the Commonwealth, “it is reasonable to
infer that the Risoldis would not deliver altered documents purporting to be
Summerdale Mills receipts to the very individual who could have sounded
the alarm because he would have known they were altered and because he
claimed they did not exist.” Commonwealth Brief at 37. Moreover,
[t]he fact that the altered documents appeared after a year of
the Risoldis claiming they didn’t exist and after [Appellee]
testified they didn’t exist but very shortly after the search
warrant was executed at Summerdale Mills raises the reasonable
inference that [Appellee] had told the Risoldis about the search
and the items seized.
Id. at 38. Further, Appellee’s “lies to the grand jury dovetail perfectly with
Claire Risoldi’s lies to AIG. Both claimed that Summerdale Mills did not have
documentation to prove the window treatments had been replaced following
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any of the fires and/or the cost of replacement. The identical lies establish
the agreement to defraud AIG.” Id.
Based on the testimony, even in absence of the binder containing
purportedly-doctored documents, I would not consider the Commonwealth’s
claim waived. Further, considering the evidence in the light favorable to the
Commonwealth, including reasonable inferences, I would find the
Commonwealth established a prima facie case of conspiracy to defraud AIG.
With regard to the charge of insurance fraud, the Majority concludes
there is no showing that Appellee possessed any intent to defraud AIG, even
considering Appellee’s statements regarding the existence of various
documents or his ability to provide those documents to the grand jury.
Majority Op. at 28. The Majority suggests there was no evidence that
Appellee had any knowledge of the contents of the binder produced by the
Risoldis’ investigator (despite the fact the binder was also provided to
Appellee’s counsel). Id.
As the Commonwealth argues, the evidence suggested that Appellee
purposely failed to produce subpoenaed documents and testified falsely
before the grand jury about his efforts to locate documents and the
existence of those records, about the failure of his computers, about
information included on work orders that included customer names, and
about Summerdale Mills’ practice of not keeping hard copies of sales orders.
Commonwealth Brief at 43-44. Appellee’s “failure to produce the documents
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pursuant to a legitimate subpoena and his subsequent lies under oath which
corroborate and further the Risoldis’ efforts to defraud AIG related to the
window treatments claim establish [Appellee’s] culpability as an accomplice
to the insurance fraud.” Id. at 44. Once again, I believe the Majority has
failed to view the evidence and reasonable inferences in the light favorable
to the Commonwealth when considering whether the Commonwealth has
established a prima facie case. When properly viewed, I believe the
Commonwealth has carried its burden of establishing a prima facie case of
insurance fraud under 18 Pa.C.S.A. § 4117(a)(2) and Appellee’s culpability
as an accomplice under 18 Pa.C.S.A. § 306 in committing that crime.
Finally, with respect to the obstruction of justice charge, the Majority
again finds waiver for failure to include “documents actually secured
pursuant to the subpoena.” Majority Op. at 29. While I do not dispute the
lack of a complete record, I do not believe the failure to include the
documents is fatal to the claim. Once again, there was testimony
concerning the transactional documents recovered during execution of the
search warrant and there was testimony relating to the window treatment
fabrication diagrams voluntarily turned over by Appellee. The testimony
revealed the nature of both categories of documents, thus enabling a
reviewing court to understand to dissimilarity between what was recovered
versus what was produced by Appellee. While the Majority suggests a
review of the record fails to establish the Appellee had knowledge of the
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existence of documents beyond the fabrication diagrams he produced, that
conclusion clearly fails to view the evidence in a light favorable to the
Commonwealth and certainly fails to consider reasonable inferences drawn
from the testimony. I believe the evidence supports a prima facie case of
obstruction of justice under 18 Pa.C.S.A. § 5101 based on Appellee’s failure
to produce subpoenaed documents and his statements under oath regarding
the records at Summerdale Mills.
Finding none of the Commonwealth’s claims waived and finding the
Commonwealth established a prima facie case of perjury, conspiracy,
insurance fraud and obstruction of justice, I conclude the trial court
committed reversible error of law by dismissing the charges against
Appellee. Therefore, I dissent.
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