J-E01004-23
2023 PA Super 172
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
NATHANIEL WILLIAMS : No. 980 EDA 2021
Appeal from the Order Entered April 22, 2021
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): MC-51-CR-0030428-2019
BEFORE: PANELLA, P.J., BENDER, P.J.E., LAZARUS, J., OLSON, J., STABILE,
J., DUBOW, J., NICHOLS, J., McLAUGHLIN, J., and McCAFFERY, J.
DISSENTING OPINION BY OLSON, J.: FILED SEPTEMBER 20, 2023
I believe that the Commonwealth presented sufficient evidence at the
preliminary hearing stage to hold Appellee, Nathaniel Williams, for court on
one count each of unsworn falsification (18 Pa.C.S.A. § 4904(a)), tampering
with or fabricating physical evidence (18 Pa.C.S.A. § 4910), tampering with
public records (tier-3 felony) (18 Pa.C.S.A. § 4911), and obstructing
administration of law or other governmental function (18 Pa.C.S.A. § 5101).
Therefore, I must respectfully dissent.
The learned Majority sets forth the proper standard of review in
determining whether the Commonwealth met its burden of proof in presenting
a prima facie case against Appellee during the preliminary hearing stage.
Majority Opinion at 6-7. Although accurately reciting the legal principles, the
Majority deviates from the well-settled law in concluding that the
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Commonwealth failed to meet its burden. Instead, the Majority holds the
Commonwealth to a more stringent standard; i.e. the Commonwealth is
required to disprove or rebut interpretations of the evidence that favor
Appellee, even when the evidence presented provides for a reasonable
inference that a crime was committed and that Appellee was the person who
probably committed the crime. In my view, this is error.
Our Supreme Court has repeatedly provided that a “preliminary hearing
is not a trial. … At this hearing, the Commonwealth bears the burden of
establishing at least a prima facie case that a crime has been committed and
that the accused is probably the one who committed it.” Commonwealth v.
Perez, 249 A.3d 1092, 1102 (Pa. 2021), quoting Commonwealth v.
McBride, 595 A.2d 589, 591 (Pa. 1991) (emphasis omitted). Moreover,
[a] prima facie case exists when the Commonwealth produces
evidence of each of the material elements of the crime charged
and establishes probable cause to warrant the belief that the
accused committed the offense. … A judge at a preliminary
hearing is not required, nor is he authorized to determine the guilt
or innocence of an accused; his sole function is to determine
whether probable cause exists to require an accused to stand trial
on the charges contained in the complaint. … The weight and
credibility of the evidence are not factors at the preliminary
hearing 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. The use of inferences is a process of
reasoning by which a fact or proposition sought to be established
is deduced as the logical consequence from the existence of other
facts that have been established. The more-likely-than-not test
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must be applied to assess the reasonableness of inferences relied
upon in establishing a prima facie case of criminal culpability.
Perez, 249 A.3d at 1102-1103 (brackets and quotation marks omitted). “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 pre-
trial, prima facie burden to make out the elements of a charged crime.”
Commonwealth v. Karetny, 880 A.2d 505, 513 (Pa. 2005).
In applying these legal principles to the facts of this case, I believe that
the Commonwealth clearly met its burden of establishing a prima facie case
that Appellee committed the four offenses charged. Accordingly, I would
reverse the trial court so that all four charges against Appellee may proceed.
In analyzing whether the Commonwealth met its burden of proof, we
must begin with the pertinent facts that were established during the two
preliminary hearings on September 11, 2020 and April 22, 2021.1
On October 14, 2017 at approximately 12:00 p.m., Theresa Williams2
was in the parking lot of Michaels craft store. N.T. Preliminary Hearing,
____________________________________________
1 As noted by the Majority, at the preliminary hearing on September 11, 2020,
the trial court dismissed all charges against Appellee. The Commonwealth
refiled the charges and a second preliminary hearing was held on April 22,
2021. At the April 2021 hearing, the testimony from the September 2020
hearing was incorporated and the Commonwealth introduced a transcription
of a police interview of Appellee and telephone records. Majority Opinion at
1-2.
2 All parties agree that Theresa Williams is not related to Appellee or Edwin
Williams who was charged as a co-defendant. The charges against Edwin
Williams are not at issue in this case.
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9/11/20, at 6. While in the parking lot, Edwin Williams (“Edwin”) approached
Ms. Williams and tried to start a conversation. He asked for her phone number
and indicated that he wanted to take her out, however, Ms. Williams stated
that she was not interested. Id. at 8. During the brief conversation, Edwin
told Ms. Williams that he was a bus driver for the Southeastern Pennsylvania
Transportation Authority (“SEPTA”). Id. at 9. Ms. Williams proceeded to get
into her vehicle at which time Edwin walked away. As Ms. Williams went to
back out, Edwin came up behind her in his vehicle and stopped. He was
looking in the direction of her vehicle. Id. at 8-9.
Approximately a week or two later, Edwin arrived at Ms. Williams’ home
and knocked on her door. Ms. Williams opened the door “and asked how the
hell he found [her].” Id. at 9-10. Edwin responded that “he had his ways.”
Id. at 13-14. Edwin persisted in talking with Ms. Williams, so in an effort to
get him to leave, she asked him to write his name and telephone number on
a piece of paper. Id at 10. Edwin then left.
During the next few weeks, Edwin continued to contact Ms. Williams
indirectly by leaving a greeting card and roses on her vehicle. Id. at 16.
Eventually, Ms. Williams filed a report with the SEPTA Police Department
which, in turn, notified the Philadelphia Police Department. Id. at 10-11, 28.
On November 2, 2017, Lieutenant James Clough of the Internal Affairs
Division of the Philadelphia Police Department was assigned to investigate the
complaint filed by Ms. Williams. Id. at 56, 59. In the complaint, Ms. Williams
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alleged that someone had approached her and she suspected that her vehicle
license tag had been “run which led to someone coming to her home.” Id. at
58. On November 7, 2017, Lieutenant Clough requested all computerized
inquiries that were made by Appellee on October 17, 2017 to determine
whether these computer systems were accessed to obtain information about
Ms. Williams.3 Id. at 59, 61. These systems included the National Crime
Information Center (“NCIC”), the Police Crime Information Center (“PCIC”)
and the Pennsylvania Justice Network (“JNET”). Lieutenant Clough discovered
that, on October 17, 2017 (three days after Edwin first approached Ms.
Williams in the Michaels craft store parking lot), Appellee accessed Ms.
Williams’ license plate tag at 3:35 p.m. and her voter registration at
approximately 3:37 p.m. At 3:42 p.m., he searched Ms. Williams’ name on
JNET. Id. at 61-62, 64. Within days after these searches, Edwin appeared at
Ms. Williams’ doorstep.
As part of his investigation, Lieutenant Clough interviewed Edwin on
November 24, 2017.4 During the interview, Edwin claimed that he did not
____________________________________________
3 Appellee used his police payroll number to access these computer systems;
accordingly, Lieutenant Clough audited the systems that had been accessed
by Appellee’s police payroll number. N.T. Preliminary Hearing, 9/11/20, at
59.
4 During the September 2020 preliminary hearing, Lieutenant Clough read into
the record Edwin’s written statement which Edwin signed acknowledging that
the statement was true and correct to the best of his knowledge. N.T.
Preliminary Hearing, 9/11/20, at 68-76.
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know Appellee well. In fact, he stated that he only met Appellee one time
when a friend introduced them at a party. Id. at 74. He stated that they
merely shook hands. Id. at 75. Edwin stated that he never spoke with
Appellee again and that they never spoke to each other via telephone or text
messages. Id. at 74-75.
On December 27, 2017, Lieutenant Clough interviewed Appellee.5
Appellee stated that he was employed as an officer with the Philadelphia Police
Department in the Homicide Division. N.T. Preliminary Hearing, 4/22/21, at
32. He claimed that he was investigating a homicide and, during the
investigation he witnessed the target of the investigation getting into a
vehicle. Therefore, on October 17, 2017,6 he did a computer search of the
license plate tag of the vehicle that the target entered. Id. at 35. Once he
obtained the identity of Ms. Williams from searching the license plate tag,
Appellee did various computer cross-checks including voter registration,
____________________________________________
5 At the preliminary hearing held on April 22, 2021, Lieutenant Clough read
into the record the written statement given by Appellee. N.T., Preliminary
Hearing, 4/22/21, at 29, 32-45. The written statement was in the form of a
transcript as it recited the specific questions posed by Lieutenant Clough and
the answers given by Appellee.
6 Appellee stated that he worked the 7:00 a.m. to 3:00 p.m. shift on October
17, 2017. However, he worked an additional four hours of overtime from 3:00
p.m. to 7:00 p.m. N.T. Preliminary Hearing, 4/22/21, at 33. Appellee did not
do the computer search during his regular shift; instead, he searched the
computer systems for information regarding Ms. Williams beginning at 3:35
p.m. while he was working overtime.
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criminal histories, property ownership and social media. 7 Id. at 36. Appellee
stated that he performed these computer searches to establish a connection
____________________________________________
7 Specifically, Appellee told Lieutenant Clough the following:
QUESTION: Does the name Theresa Williams sound familiar in
any of the ongoing investigations by you or any member of your
squad or unit?
ANSWER: There are some lawyers involved in the Williams
Avenue case. It was a case from Northwest. It was from a
shooting that happened on July 31st, and the decedent died on 8-
1-17.
QUESTION: Does the name Theresa Williams from the 6600
block of Ogontz Avenue have anything to do with the investigation
of the homicide you mentioned from Williams Avenue?
ANSWER: I have not determined that yet. I saw the target of
my investigation Tashaun Curtis get into a car a couple of months
ago on the 6600 block of Ogontz right in front of his house. I was
driving by. I saw him get into a white or white-colored SUV or
van, and I drove around the block and the car was gone. A day
later I surveyed the neighborhood, and I saw a vehicle that I
though[t] he had gotten into. I ran the tag.
QUESTION: What follow[-]up did you do with that tag
information?
ANSWER: All kinds of cross[-]checks, car stops, 48-A’s, voters,
real estate, criminal history, property ownership and social media.
QUESTION: Who was with you when you saw Tashaun Curtis get
into the vehicle.
ANSWER: No one.
QUESTION: What is the case number that is assigned to the
Williams Avenue homicide?
(Footnote Continued Next Page)
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to the target that he was investigating. Id. at 42. The information obtained
from these computer searches identified Ms. Williams; however, he could not
connect her to the target. Id. at 39.
Also during the interview, Appellee stated that Edwin was his cousin
(directly contradicting Edwin who stated that he only met Appellee one time
briefly at a party). Appellee stated that he did not talk with Edwin frequently
and last spoke with him approximately a year ago. Id. at 36. Appellee denied
ever talking to Edwin about Ms. Williams and denied providing Edwin with the
information he obtained from the computer searches regarding Ms. Williams.
Id. at 39-42.
At the end of the written statement, Appellee signed the statement
acknowledging that he “read the foregoing statement consisting of six pages
and it is true and correct to the best of my knowledge.” Id. at 44-45. Appellee
also signed each page of the written statement. Id. at 29.
Immediately following the interview of Appellee, Lieutenant Clough went
to the Homicide Division to obtain the M17-185 case file. He was provided
with one file folder. N.T. Preliminary Hearing, 9/11/20, at 77. This folder
contained no information regarding Ms. Williams. Id. at 78. The next day,
Lieutenant Clough was informed that Appellee had called to advise Lieutenant
____________________________________________
ANSWER: M17-185, I think.
N.T. Preliminary Hearing, 4/22/21, at 34-36.
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Clough that there was a second folder related to the M17-185 homicide
investigation. This folder contained a photograph of Ms. Williams and her
children taken from her Facebook page. On the back of the photograph were
handwritten notes regarding Ms. Williams, including her license plate number
and that she had “no record/no wants.” Id. at 78. Lieutenant Clough testified
that the photograph was from a publicly available Facebook page.8 Lieutenant
Clough reviewed the entire second folder and noted that the photograph of
Ms. Williams was the only document contained within the folder that had
handwriting. All of the other documents in the folder were “printouts of
various licen[s]e plates, tags, houses that were checked.” Id. at 80. In other
words, the document referencing Ms. Williams was different from the other
information contained within the folder. Id.
Lieutenant Clough also obtained the records for the telephone numbers
for which Appellee and Edwin were identified as the subscribers. Contrary to
the statement given by Edwin that he never communicated with Appellee after
meeting him at a party and the statement given by Appellee that he and Edwin
had not communicated with each other in a year or more, the telephone
records revealed that there were numerous telephone calls and text messages
between the two telephone numbers in early and mid-October 2017, including
____________________________________________
8 Lieutenant Clough stated that he logged onto Facebook and was able to
retrieve the same photograph of Ms. Williams without any restrictions such as
being “a friend of Ms. Williams.” N.T. Preliminary Hearing, 9/11/20, at 79.
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text messages being exchanged on October 14, 2017, the day Edwin
encountered Ms. Williams in the Michaels craft store parking lot. Id. at 87.
Most critically, there were five text messages between the two telephone
numbers on October 17, 2017, just minutes before Appellee accessed the
NCIC, PCIC and JNET computer systems to obtain information regarding Ms.
Williams. Id. at 87-88. These telephone calls and text messages continued
into early November and then ceased. On November 24, 2017, the same day
of Lieutenant Clough’s interview of Edwin, Appellee replaced his telephone
with another. Id. at 88.
Based upon this evidence, the Commonwealth filed the four charges
against Appellee. When viewing this evidence in a light most favorable to the
Commonwealth, including all inferences reasonably drawn therefrom, I
conclude that the Commonwealth met its burden of proof in establishing a
prima facie case against Appellee on all four charges.
Unsworn Falsification to Authorities
A person commits the offense of unsworn falsification to authorities
where, “with [the] intent to mislead a public servant in performing his official
function, he: (1) makes any written false statement which he does not believe
to be true.” 18 Pa.C.S.A. § 4904(a).
As established at the preliminary hearings, Lieutenant Clough
interviewed Appellee on December 27, 2017. Lieutenant Clough then
transcribed the interview onto a six-page document entitled “Statement of
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Detective Nathaniel Williams.” Appellee signed at the end of the statement
acknowledging that he “read the foregoing statement consisting of six pages
and it is true and correct to the best of my knowledge.” N.T. Preliminary
Hearing, 4/22/21, at 44-45. Appellee also signed each page of the written
statement.
The Majority does not address whether Appellee provided false
information to Lieutenant Clough during this interview but instead concludes
that “[t]he Internal Affairs interview, which was conducted as an oral
interview, memorialized in writing by Lieutenant Clough, and signed by
[Appellee], does not constitute a ‘written false statement,’ under [18 Pa.C.S.A.
§ 4904(a).]” Majority Opinion at 8-9. In support of this conclusion, the
Majority cites to only one case, Commonwealth v. Gaithers, 13 Pa.D.&C.
3d 668 (Pa. C.P. Montg. 1978). Id. at 9. The Majority’s reasoning for citing
Gaithers is not readily apparent because it is a 1978 decision of the Court of
Common Pleas of Montgomery County in which the trial court found that the
evidence was sufficient to convict the defendant of unsworn falsification where
the defendant signed a Miranda9 rights form using a false name. I do not
believe that this case lends support to the Majority’s conclusion. Instead, I
believe that Appellee’s conduct amounted to “making” a false written
statement.
____________________________________________
9 Miranda v. Arizona, 384 U.S. 436 (1966).
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There is nothing in the language of the statute that requires the
defendant to be the actual scrivener of the written statement at issue.
Lieutenant Clough contemporaneously transcribed Appellee’s oral statements
provided during the interview. Appellee adopted the entire transcription by
signing all six pages and attesting to the fact that the “foregoing statement”
was “true and correct to the best of [his] knowledge.” N.T. Preliminary
Hearing, 4/22/21, at 44-45. These acknowledgements and attestations make
the statement Appellee’s own. There is no reason why an individual would
not be liable under Section 4904(a) for attesting to the truth of a written
statement that was memorialized by a third party. In fact, it is commonplace
for signatories to affidavits prepared by third parties to be subject to the
penalties prescribed by Section 4904. See e.g., 42 Pa.C.S.A. § 102 (definition
of “affidavit” in the Judicial Code, including “an unsworn document containing
statement of fact and a statement by the signatory that it is made subject to
the penalties of 18 Pa.C.S. § 4094.”).
Moreover, this Court previously affirmed a conviction under Section
4904(a) where a false written statement was memorialized by a third party
and then adopted by the way of the defendant’s signature. In
Commonwealth v. Cherpes, 520 A.2d 439 (Pa. Super. 1987), the defendant
served as the chairman of a local municipality’s board of commissioners. As
such, he was required by law to file financial disclosure statements. The
defendant filed a financial disclosure statement that failed to disclose certain
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income that he received through his insurance business. He claimed that he
was out of town when the statement was due; therefore, his wife completed
as well as signed the form. During trial, evidence was presented that the
signature was, in fact, the defendant’s signature. Although the form was
completed by the defendant’s wife, the jury found the defendant guilty of
violating Section 4904(a). On appeal, this Court held that, drawing all
reasonable inferences in favor of the Commonwealth, the jury properly
convicted the defendant of unsworn falsification.
As I believe that the written statement signed by Appellee was a “written
statement” as required by Section 4904(a), I turn to whether the evidence
presented at the preliminary hearings was sufficient to establish a prima facie
case that Appellee made false statements to Lieutenant Clough in an effort to
mislead him. The Majority does not address whether Appellee lied or misled
Lieutenant Clough, but I believe that, viewed in the light most favorable to
the Commonwealth, the record provides ample evidence that Appellee was
being untruthful in an effort to derail Lieutenant Clough’s official investigation.
Indeed, viewed in the light most favorable to the Commonwealth, the record
reveals the following.
During the interview, Appellee was untruthful when he stated that he
had not “spoken to” his cousin, Edwin, for a year or more. This statement is
directly contradicted by the telephone records from Appellee and Edwin that
show numerous telephone calls and text messages were exchanged between
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the two men during the relevant time period, including on October 14, 2017,
the day Edwin encountered Ms. Williams in the Michaels craft store parking
lot, and October 17, 2017, the day Appellee accessed the police databases.10
Most critically, the two men stopped communicating (even via text messaging)
in early November 2017 when Lieutenant Clough began his investigation.
Moreover, on November 27, 2017, the day Lieutenant Clough interviewed
Edwin, Appellee replaced his telephone.
Appellee also denied that he used government databases to assist his
cousin in learning Ms. Williams’ personal information, however, there is ample
evidence to support that that is exactly what occurred. The record supports
the reasonable inference that Appellee obtained Ms. Williams’ personal
information at Edwin’s request. On October 14, 2017, the day on which Edwin
____________________________________________
10 Appellee acknowledges that Appellee and Edwin communicated via text
messaging, however, he argues that “while Appellee and Edwin communicated
with each other frequently via text message, Appellee was not asked when he
last communicated with Edwin. Rather, he was specifically asked when he last
spoke to Edwin. And, while the Commonwealth introduced into evidence cell
phone records that demonstrated that Appellee and Edwin had apparently
attempted to call each other, none of the calls was longer that two minutes in
duration which suggested that the men did not in fact speak as the lines were
engaged only long enough to activate the phones’ voice mail messages.”
Appellee’s Substituted Brief at 18. I find this argument to be specious.
Although Lieutenant Clough asked Appellee when he had last “spoken to”
Edwin, it can reasonably be inferred that Lieutenant Clough was inquiring as
to all types of communication between Appellee and Edwin, and that Appellee
understood the question to include text messages (that Appellee does not
deny occurred). Moreover, whether or not Appellee and Edwin actually spoke
during the two minute telephone calls that were noted on the telephone
records is a question of fact for a jury to decide.
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encountered Ms. Williams in the parking lot and Edwin pulled his vehicle
behind Ms. Williams’ vehicle and looked in the direction of her license plate,
there were text messages between Edwin and Appellee. Three days later
(October 17, 2017), there were five text messages between Appellee and
Edwin, just minutes before Appellee accessed the NCIC, PCIC and JNET
computer systems to obtain information regarding Ms. Williams. There were
additional text messages between the two men over the next several days.
Shortly after Appellee obtained Ms. Williams’ information, Edwin just
happened to arrive at Ms. Williams’ doorstep and, when asked how he found
her, he responded that “he had his ways.” In applying the more-likely-than-
not test addressed by our High Court in Perez, supra, I believe that it is more
likely than not that Appellee accessed the various computer systems on
October 17, 2017 to provide his cousin with Ms. Williams’ address.
Appellee claimed that he legitimately obtained Ms. Williams’ personal
information as part of a homicide investigation that he was conducting and
that he did not obtain this information to provide to his cousin. However,
consideration of his alternative explanation, his credibility and the weight of
conflicting evidence must be reserved for the jury in the first instance. The
trial court was not permitted at the preliminary hearing stage to credit
Appellee’s story and disregard the Commonwealth’s explanation as all
evidence and reasonable inferences drawn therefrom must be viewed in favor
of the Commonwealth.
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Viewed in the proper manner, since the record reflects that Appellee
gave a false written statement to Lieutenant Clough with an intent to mislead,
I believe that the trial court erred as a matter of law in dismissing the unsworn
falsification charge.
Tampering With or Fabricating Physical Evidence.
A person commits the offense of tampering with or fabricating physical
evidence when that person,
believing that an official proceeding or investigation is pending or
about to be instituted, he:
(1) alters, destroys, conceals or removes any record, document
or thing with intent to impair its verity or availability in such
proceeding or investigation; or
(2) makes, presents or uses any record, document or thing
knowing it to be false and with intent to mislead a public servant
who is or may be engaged in such proceeding or investigation.
18 Pa.C.S.A. § 4910.
At the preliminary hearings, Lieutenant Clough testified that,
immediately following the interview of Appellee during which Appellee stated
that he accessed the computer systems to obtain Ms. Williams’ personal
information as part of a homicide that he was investigating, Lieutenant Clough
went to the Homicide Division to obtain the M17-185 case file. He was
provided with one file folder which contained no information regarding Ms.
Williams. However, on the next day, Appellee called to advise Lieutenant
Clough that there was a second folder. This folder contained a photograph of
Ms. Williams and her children taken from her Facebook page and on the back
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were handwritten notes with some of Ms. Williams’ personal information. This
photograph was the only document regarding Ms. Williams and was different
than the other documents contained within the second folder which were
computer printouts and had no handwriting. The Commonwealth argues that
this is prima facie evidence that Appellee “manufactured the second homicide
file after learning about [Lieutenant] Clough’s investigation into his use of
restricted access systems and did so knowing it to be false and with the intent
to mislead [Lieutenant] Clough in conducting that investigation.” Appellant’s
Substituted Brief at 16.
The Majority disagrees, finding that there was insufficient evidence to
establish that the information regarding Ms. Williams was added to the
homicide file after Appellee learned of the Internal Affairs Division’s
investigation, and that there was no testimony that Lieutenant Clough
“obtained the entire file when he initially procured it.” Majority Opinion at 11.
Respectfully, the Majority fails to follow the standard of review that we are
required to follow at the preliminary hearing stage and discounts reasonable
inferences that Appellee tampered with the file.
Viewed in the light most favorable to the Commonwealth, the evidence
demonstrates that Appellee told Lieutenant Clough during the December 27,
2017 interview that he accessed the police databases to obtain Ms. Williams’
personal information as part of a homicide that he was investigating.
Immediately following the interview, Lieutenant Clough went to the
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Philadelphia Police Homicide Division and requested homicide file M17-185
and he was provided with one file folder. There was no reference to Ms.
Williams in the file. The next day, Appellee called to advise Lieutenant Clough
that there was a second file and this file contained a photograph of Ms.
Williams which had her personal information handwritten on the back. This
second folder appeared suspect to Lieutenant Clough as the photograph
appeared to come from a public Facebook page and the handwritten
information contained on the back was the type of information that Lieutenant
Clough had asked Appellee if he obtained regarding Ms. Williams. 11 In sum,
____________________________________________
11 Specifically, during the preliminary hearing on September 11, 2020, the
following exchange took place:
Commonwealth: The Facebook picture, did that appear to you
that it came from a publicly available Facebook profile?
Lieutenant Clough: Yes, because I actually logged in and
viewed it myself and I was able to see it without being restricted,
without having to be a friend of Ms. Williams.
Commonwealth: And those handwritten notes, was that all
information that you would have referred to in [Appellee’s]
interview with him?
....
Lieutenant Clough: Those things that were handwritten on
there, yes. They were in – some of them were in the interview of
[Appellee], yes. And he received a copy of that interview at the
conclusion of his statement.
(Footnote Continued Next Page)
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the only material contained in the second folder regarding Ms. Williams was a
print-out of a publicly available Facebook photograph, on the back of which
Appellee had handwritten Ms. Williams’ personal information corresponding to
the same information that Appellee provided to Lieutenant Clough during the
interview a day earlier. Unlike the other materials in the folder, Appellee did
not print out any of the database inquiries of Ms. Williams from October 17,
2017.
It strains credulity to believe that a second file folder – containing
information regarding Ms. Williams – was missing on December 27, 2017
when Lieutenant Clough retrieved and scoured file number M17-185 – which
had no information regarding Ms. Williams – yet it immediately appeared one
day later. Rather, viewing the evidence in the light most favorable to the
____________________________________________
Commonwealth: Besides that Facebook page and the notes on
the back was there any other reference to Theresa Williams in the
file?
Lieutenant Clough: No, there was not. I looked extensively
through that file. A lot of the inquiries that were made there was
copies, there was printouts of various licen[s]e plates, tags,
houses that were checked. And this was the only one, the only
thing that was not printed out, it was just handwritten on the back
of a Facebook page.
Commonwealth: So you are saying this information was
different from the other checks that you saw in the file; is what
you’re saying.
Lieutenant Clough: Yes.
N.T. Preliminary Hearing, 9/11/20, at 79-80.
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Commonwealth, it is reasonable to infer that Appellee altered homicide file
M17-185 by creating a second folder of materials (which now included
information regarding Ms. Williams) in order to corroborate his purported
reason for accessing the police databases and he provided this second folder
to Lieutenant Clough to mislead him. By ignoring the reasonable inferences
drawn from this evidence and, instead, accepting the explanations given by
Appellee, the Majority is making improper credibility determinations and, in
essence, rendering a finding of innocence.
When viewed in a light most favorable to the Commonwealth, the
evidence and all reasonable inferences drawn therefrom support a prima facie
case that Appellee altered the homicide file by creating a second folder with
Ms. Williams’ photograph and personal information to mislead and thwart an
official investigation. Accordingly, the trial court erred in dismissing the
charge of tampering with or fabricating physical evidence.
Tampering With Public Records or Information
A person commits the offense of tampering with public records or
information when he:
(1) knowingly makes a false entry in, or false alteration of, any
record, document or thing belonging to, or received or kept by,
the government for information or record, or is required by law to
be kept by others for information of the government;
(2) makes, presents or uses any record, document or thing
knowing it to be false, and with intent that it be taken as a genuine
part of information or records referred to in paragraph (1) of this
subsection; or
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(3) intentionally and unlawfully destroys, conceals, removes or
otherwise impairs the verity or availability of any such record,
document or thing.
18 Pa.C.S.A. § 4911(a). When the offense is charged as a felony, as in this
case, the Commonwealth must establish that the defendant acted with an
intent to “defraud or injure.” 18 Pa.C.S.A. § 4911(b). “Fraud” generally
means “anything calculated to deceive, whether by single act or combination,
or by suppression of truth, or suggestion of what is false, whether it be by
direct falsehood or by innuendo, by speech or silence, word of mouth, or look
or gesture.” Moser v. DeSetta, 589 A.2d 679, 682 (Pa. 1991); see also
Commonwealth v. Kitchen, 162 A.3d 1140, 1145 (Pa. Super. 2017).
I believe that the evidence adduced at the preliminary hearings, when
viewed in a light most favorable to the Commonwealth, establishes a prima
facie case for tampering with public records or information.
First, I agree with the learned Majority that the homicide file relied upon
by Appellee to establish the legitimacy of his inquiries regarding Ms. Williams
is a “record, document or thing belonging to, or received or kept by, the
government for information or record.” See Majority Opinion at 14; see also
Commonwealth v. Barger, 375 A.2d 756, 763-764 (Pa. Super. 1977) (“It is
a written report of an investigation of a motor vehicle accident which, at the
very minimum, is kept by the State Police for informational purposes.”). I
part company, however, with my learned colleagues’ finding that “the
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Commonwealth failed to present a prima facie case that [Appellee] made a
false entry or alteration to the file.” Majority Opinion at 15.
The Majority concludes that “[t]he Commonwealth’s assertion that
[Appellee] ‘falsified’ the second file is mere supposition and speculation.” Id.
Again, I believe that the Majority is applying the wrong evidentiary standard
in reviewing whether a prima facie case was established. Circumstantial
evidence of a crime being committed is sufficient and conclusions must be
reached after reviewing the evidence and all reasonable inferences drawn
therefrom in a light most favorable to the Commonwealth. Here, the elements
of tampering with public records, with the intent to defraud, were established
circumstantially.
Viewed in a light most favorable to the Commonwealth, the evidence
demonstrates the following. Ms. Williams was confronted by Edwin in a
parking lot on October 14, 2017, at which time she rebuffed his efforts to go
out with him. As Ms. Williams was leaving the parking lot, Edwin pulled up
behind her and looked in the direction of the rear of her vehicle, i.e. the
location of her license plate. On that day, text messages were exchanged
between Edwin and Appellee.12 Three days later, on October 17, 2017,
Appellee accessed multiple police databases to obtain personal information
regarding Ms. Williams, including her home address. Importantly, there were
____________________________________________
12Again, Appellee does not deny that he and Edwin frequently sent text
messages to each other. See Appellee’s Substituted Brief at 18.
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five text messages between Edwin and Appellee just minutes before Appellee
accessed the NCIC, PCIC and JNET systems. Shortly after these databases
were checked and information regarding Ms. Williams was obtained, Edwin
appeared at Ms. Williams’ door. When Edwin and Appellee were interviewed
by Lieutenant Clough, they both lied about their communications with each
other and, on the day of Edwin’s interview, Appellee stopped using the cell
phone that he had used previously to communicate with Edwin.
During his interview with Lieutenant Clough, Appellee tried to explain
his purpose of accessing the police databases. He claimed to have been
investigating a homicide when he just happened to have witnessed a target
of that homicide enter a vehicle. Appellee contended that he accessed the
license tag information for that vehicle to learn more about the target. When
the information came back as belonging to Ms. Williams, he did additional
searches to gather more information about her. Even though the suggested
link between Ms. Williams and the murder suspect was both tenuous and
uncorroborated, Appellee continued to access other databases to obtain more
of Ms. Williams’ personal information; however, he was never able to connect
Ms. Williams to the homicide suspect.
Immediately after learning about this homicide investigation, Lieutenant
Clough obtained the file folder identified by Appellee as the file related to the
homicide investigation and there was no information in the file regarding Ms.
Williams. One day later, Appellee produced a second folder which he claimed
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was part of the homicide investigation file and, lo and behold, this second
folder contained a Facebook photograph of Ms. Williams. Unlike all of the
other items in both folders, the one photograph of Ms. Williams was publicly
accessible, had handwritten notes on it, and was not time-stamped.
When viewing this evidence and all reasonable inferences in a light most
favorable to the Commonwealth, I believe that it is more likely than not that
Appellee used official computer systems to help Edwin locate Ms. Williams then
tried to cover it up by manipulating a government record to make it appear
as if Ms. Williams were involved in a murder investigation. Appellee acted
intentionally to create a second folder as part of the M17-185 homicide
investigation file to deceive Lieutenant Clough and mislead him to believe that
his purpose for accessing these systems was legitimate. I acknowledge that
Appellee gave an innocent explanation for his actions; however, it is not
proper at this stage of the proceedings to rely on Appellee’s self-serving
statements and completely disregard the evidence that reasonably leads to
the conclusion that Appellee tampered with public records in violation of 18
Pa.C.S.A. § 4911(a). Accordingly, the trial court erred in dismissing this
charge.
Obstructing Administration of Law or Other Governmental Functions
A person commits the offense of obstruction of administration of law or
other governmental functions “if he intentionally obstructs, impairs or perverts
the administration of law or other governmental function by force, violence,
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physical interference or obstacle, breach of official duty, or any other unlawful
act.” 18 Pa.C.S.A. § 5101. This crime requires more than “mere lying” or
giving false information to a police officer. See Commonwealth v. Shelly,
703 A.2d 499, 503 (Pa. Super. 1997).13 The conduct causing obstruction or
interference must be an independently illegal act. See id.
The Majority concludes that the Commonwealth failed to meet its burden
of establishing a prima facie case on the obstruction charge as the
Commonwealth did not establish a prima facie case for the other crimes
charged. I set forth in detail why the record compels a finding that the
Commonwealth met its burden of establishing a prima facie case that Appellee
violated Sections 4904(a) (unsworn falsification), 4910 (tampering with or
fabricating physical evidence) and 4911 (tampering with public records) of the
Crimes Code. Since there is no question that Lieutenant Clough was engaged
in the administration of a governmental function while investigating Appellee,
all of the elements of Section 5101 were met. Therefore, the trial court erred
in dismissing the charge of obstruction.
For the foregoing reasons, I would reverse the trial court’s orders
dismissing the charges of unsworn falsification, tampering with or fabricating
____________________________________________
13 As the Majority notes, Shelly’s holding that providing false identification to
law enforcement is not a crime has been superseded by 18 Pa.C.S.A. § 4914,
however “that does not undermine its central holding that the ‘unlawful act’
element of Section 5101 can only be satisfied by allegations setting forth a
violation of codified law.” Majority Opinion at 17.
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physical evidence, tampering with public records, and obstructing
administration of law or other governmental function, and remand so that all
four charges against Appellee may proceed.
President Judge Emeritus Bender, Judge Stabile and Judge Dubow join
this Dissenting Opinion.
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