DISSENTING STATEMENT BY
JOYCE, J.:¶ 1 Because I believe the Majority’s reliance on the Morales7 case is misplaced, I respectfully dissent.
¶ 2 At the conclusion of the suppression hearing conducted in this case, the suppression court determined that Appellant’s arrest for loitering was “made illegally and *29without proper cause or basis or justification.” N.T. Suppression Hearing, 2/1/05, at 38. The underlying reason for that determination was the arresting officer’s failure to comply with the pre-arrest requirement of ordering Appellant and his colleagues to disperse. The suppression judge then stated:
The Commonwealth argues that notwithstanding the illegal arrest, that the items ... sought to be suppressed would have been an inevitable result of a further investigation. And therefore, through independent investigation the paraphernalia would have been recovered and, therefore, not need — not necessarily be suppressed merely because of the illegal or improper arrest.
The Court respectfully disagrees. We find that the forced — that the abandonment of the paraphernalia by [Appellant] was the immediate and tangential result of being placed under arrest and the display of force by the officer in pulling out the OC spray with an intention to use it, if necessary, to place [Appellant] under physical control.
As a result, we conclude that any evidence seized by the Commonwealth as a result of the abandonment of the paraphernalia must be suppressed at trial.
Id. at 38-39 (emphasis added).
¶ 3 At the conclusion of the suppression hearing, the parties immediately proceeded with a waiver trial, before the same judge, on the charge of tampering with evidence. This charge stemmed from Appellant’s actions after the arresting officer advised Appellant he was under arrest. Sensing that Appellant was nervous, and observing that he was fidgety, the officer pulled out a can of pepper spray. In response, Appellant — who was in the course of following the officer’s instructions to put his hands on the patrol car— reached into his pocket, pulled out an object that appeared to be a glass crack pipe, dropped it to the ground, and stepped on it.
¶ 4 No additional testimony or evidence was presented at the waiver trial. Instead, the parties stipulated that the testimony of the two officers, including the arresting officer, presented at the suppression hearing, would comprise the testimony for trial. After brief closing arguments were presented, the trial judge adjourned the proceedings for purposes of reviewing the Morales case, which the prosecution argued was “instructive” to illustrate why Appellant’s actions constituted evasive action warranting a conviction for tampering with evidence.8 Id. at 46-47.
¶ 5 When the trial judge reconvened the hearing, he pronounced:
We have reviewed the Morales case cited by the Commonwealth as precedent for the fact that the evidence need not be introduced into the trial for the purpose of establishing the violation of the ordinance or the statute for tampering with evidence. We have reviewed the matter and considered it, and we believe that the charge[] of tampering is not vitiated by the illegal arrest. And accordingly, we find [Appellant] guilty of tampering with evidence.
Id. at 47-48. Appellant was subsequently sentenced to 12 months’ probation.
*30¶ 6 In this appeal, Appellant submits that there was insufficient evidence to convict him of tampering with evidence because the evidence in question, ie., the glass crack pipe, was suppressed by the trial court. I agree. If evidence related to the pipe is inadmissible as the proverbial “fruit of the poisonous tree,” how can there be a conviction for tampering with evidence that, for purposes of the trial related to that charge, is a nullity? How can Appellant be convicted of destroying a “thing,” ie., a pipe, to impair its availability in any investigation when the suppression court recognized the illegality of the investigation and arrest, and ordered that evidence, including the pipe, seized as a result of the illegal arrest be suppressed?
¶ 7 As noted at the onset of this dissenting statement, I believe that the Majority’s reliance on the Morales case is misplaced. In that case, Morales was arrested while a passenger in a vehicle that was leaving the scene of a drug buy. When the vehicle was stopped, and its occupants were instructed to raise their hands over their heads, Morales instead placed a glassine packet into his mouth and swallowed it. He was subsequently charged with tampering with evidence. Unlike the case sub judice, the legality of the arrest was not at issue in the Morales case. Rather, the issue in the Morales case was simply whether Morales could be convicted of tampering with or destroying evidence when there was no physical evidence available to introduce at trial because it had been swallowed. This Court determined that a conviction under those circumstances was proper, and that the lack of the physical evidence was not an insurmountable obstacle to the conviction.
¶ 8 In the Morales case, there was no available physical evidence because it was swallowed by Morales. Conversely, there was no available physical evidence in the present case — not because it was destroyed, but because it was suppressed. Equating the Morales case with the case sub judice is, in my opinion, unjustified and erroneous as a matter of law.
¶ 9 As a result of the suppression court’s ruling, there was no evidence at trial upon which a tampering conviction could be based. Therefore, I would reverse the judgment of sentence imposed, based not merely on insufficiency of evidence but rather total absence of evidence.
. Commonwealth v. Morales, 447 Pa.Super. 491, 669 A.2d 1003 (1996).
. In the Morales case, this Court recognized that: "To prove tampering with evidence, the Commonwealth must show that an individual, believing that an official proceeding or investigation was pending, altered, destroyed, concealed or removed 'any record, document or thing with the intent to impair its verity or availability in [the] proceeding or investigation.’ ” Commonwealth v. Morales, 447 Pa.Super. 491, 669 A.2d 1003, 1005 (1996) (quoting 18 Pa.C.S. § 4901(1)).