J-S55005-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF : IN THE SUPERIOR COURT OF
PENNSYLVANIA, : PENNSYLVANIA
:
Appellant :
:
:
v. :
:
: No. 328 MDA 2017
BETSY LINN JOHNSON
Appeal from the Order Entered January 23, 2017
In the Court of Common Pleas of Centre County
Criminal Division at No(s): CP-14-CR-0001417-2016
BEFORE: DUBOW, J., RANSOM, J., and STRASSBURGER, J.*
MEMORANDUM BY DUBOW, J.: FILED NOVEMBER 16, 2017
The Commonwealth appeals from the January 28, 2014 Order the
Centre County Court of Common Pleas entered on January 23, 2017,
dismissing the charge of Tampering with or Fabricating Physical Evidence
against Appellee, Betsy Linn Johnson, based upon a lack of prima facie
evidence. After careful review, we are constrained to reverse.
We summarize the factual and procedural background of this matter as
follows. On May 27, 2016, Appellee called 911 to report that her boyfriend,
Joshua Rupert (“Rupert”), had assaulted her. N.T., 9/7/16, at 10. Members
of the Pennsylvania State Police responded to the scene, at the side of the
road along State Route 144, and interviewed Appellee and Rupert. Id. at 7.
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S55005-17
Appellee told Trooper Benjamin Clark (“Trooper Clark”) that she called
911 after Rupert had physically assaulted her. Id. at 10. She also told
Trooper Clark that Rupert had been in possession of a small amount of
marijuana, which he had dropped on the ground as the first Troopers pulled
up to their location. Id. at 10-11. Appellee admitted to picking the
marijuana up off the ground and throwing it over a guide rail along the
shoulder of the road in order to obscure it from view. Id. at 10. She then
led Trooper Clark to the spot where she had thrown the bag. Id. at 11.
Trooper Clark recovered the bag and its contents, and his field test for
marijuana was positive. Id. at 8.
Trooper Clark arrested Appellee and charged her with Possession of a
Small Amount of Marijuana.1 At Appellee’s September 7, 2016 preliminary
hearing, the Commonwealth amended the Criminal Complaint, over defense
objection, to include a charge of Tampering with or Fabricating Physical
Evidence.2 After the hearing, the district court dismissed the charge of
Possession of a Small Amount of Marijuana, and the Commonwealth did not
appeal that ruling. The district court bound Appellee over for court on the
charge of Tampering with or Fabricating Physical Evidence.
____________________________________________
1 35 P.S. § 780-113(a)(31).
2 18 Pa.C.S. § 4910.
-2-
J-S55005-17
On October 6, 2016 Appellee filed a Petition for Writ of Habeas Corpus
challenging the Commonwealth’s prima facie case against her. On
December 8, 2016, the trial court held a hearing on the Petition and on
January 24, 2017, the trial court granted the Petition based on its conclusion
that “the Commonwealth has not presented any evidence of [Appellee’s]
knowledge of an investigation or official proceeding involving marijuana prior
to throwing the bag of marijuana over the guide rail.” Trial Court Opinion,
filed 1/24/17, at 5.
The Commonwealth filed a timely appeal as authorized following the
dismissal of charges following a trial court’s grant of a pre-trial Petition for
Writ of Habeas Corpus. See Commonwealth v. Hess, 414 A.2d 1043,
1047 (Pa. 1980). On appeal, the Commonwealth raises one issue:
Whether the trial court erred when it granted [Appellee’s]
Petition for Writ of Habeas Corpus dismissing the sole count of
tampering with evidence and discharging [Appellee] after the
Commonwealth clearly established each element of the offense?
Commonwealth’s Brief at 4.
Regarding our scope and standard of review, our Supreme Court has
noted that “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, 880 A.2d 505, 528 (Pa. 2005) (citation omitted). “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
-3-
J-S55005-17
its pre-trial, prima facie burden to make out the elements of a charged
crime.” Id. As the Commonwealth’s claim presents a question of law, our
scope of review is plenary and our standard of review is de novo. See In re
Vencil, 152 A.3d 235, 241 (Pa. 2017) (noting that, for pure questions of
law, “our standard of review is de novo and our scope of review is
plenary.”).
At issue here is whether the Commonwealth produced sufficient
evidence to establish a prima facie case of Tampering with or Fabricating
Physical Evidence. As this Court has previously explained:
The Commonwealth establishes a prima facie case when it
produces evidence 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.
Commonwealth v. Marti, 779 A.2d 1177, 1180 (Pa. Super. 2001) (internal
citations and quotations omitted).
The offense of Tampering with or Fabricating Physical Evidence is
defined, in relevant part, as follows:
A person commits a misdemeanor of the second degree if,
believing that an official proceeding or investigation is pending or
about to be instituted, he:
-4-
J-S55005-17
(1) alters, destroys, conceals or removes any record,
document or thing with intent to impair its verity or
availability in such proceeding or investigation[.]
18 Pa.C.S. § 4910(1). Thus, the Commonwealth must prove three elements
to establish the offense of Tampering with or Fabricating Physical Evidence:
“(1) the defendant knew that an official proceeding or investigation was
pending; (2) the defendant altered, destroyed, concealed, or removed an
item; and (3) the defendant did so with the intent to impair the verity or
availability of the item to the proceeding or investigation.” Commonwealth
v. Jones, 904 A.2d 24, 26 (Pa. Super. 2006) (citation omitted).
In the instant case, the trial court conceded that Appellee was aware
of an impending investigation into her domestic violence claim, but
concluded that she must have also been aware of an impending investigation
into the marijuana at issue to satisfy the first element of Tampering with or
Fabricating Physical Evidence. Trial Court Opinion at 4.
We find nothing in in the language of Section 4910, which refers to “an
. . . investigation” generally, to support such a narrow, offense specific
reading of the statute. Moreover, even if we concluded that the mens rea
element of Section 4910 required Appellee to be aware of an impending
investigation into the small amount of marijuana, we conclude that the
Commonwealth has established sufficient evidence of that element under the
prima facie standard.
Trooper Clark summarized his interaction with Appellee as follows:
-5-
J-S55005-17
During the interview with [Appellee] she had reported that her
boyfriend[, Rupert,] had dropped [a glassine bag with a small
amount of marijuana] out of his pocket upon me approaching
the first police car, first patrol unit. [Appellee] related that she
picked it [up] off of the ground and she threw it over the guide
rail. She then showed us where that small bag of marijuana
was. I took possession of the marijuana and reiterated to
[Appellee]—I summed up what she was saying and said so what
you are telling me you took possession of that small bag of
marijuana and threw it over the guide rail to hide it from police
and at that point she stated yes.
N.T. at 8.
Appellee admitted that she threw the bag over the guide rail while
officers were approaching in order to hide it from their view. It is reasonable
to infer, based on the evidence in the light most favorable to the
Commonwealth, that she hid the marijuana from police because she was
aware that they would investigate the marijuana if it remained in plain sight.
Thus, we conclude that the trial court erred in dismissing the charge on
these grounds.
In her brief to this Court, Appellee avers two additional grounds to find
that the Commonwealth failed to present a prima facie case of Tampering
with or Fabricating Physical Evidence. First, Appellee cites to
Commonwealth v. Delgado, 679 A.2d 223 (Pa. 1996), to support her
claim that she merely “abandoned” rather than concealed the marijuana.
Appellee’s Brief at 8-9.
The procedural context of Delgado is different from the procedural
context of the instant matter. Delgado concerned a challenge to the
-6-
J-S55005-17
sufficiency of the evidence at trial. Here, we consider the sufficiency of the
evidence at a pre-trial proceeding. The standards of proof are different.
See, e.g., Marti, 779 A.2d at 1180 (“[T]he 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.”). Thus, reliance on Delgado is misplaced.
Moreover, we conclude that the facts of Delgado are distinguishable
from the instant case. In Delgado, a suspect in a narcotics investigation
threw a bag of cocaine onto a rooftop while in a close foot chase with
officers. Delgado, 679 A.2d at 225. Our Supreme Court held that
“discarding contraband in plain view of [a] pursuing officer” constitutes
abandonment rather than destruction or concealment. Id. In the instant
case, Appellee did not merely discard marijuana already in her possession;
instead, she took possession of the marijuana in order to conceal it.
Finally, Appellee avers that the fact that she immediately disclosed the
location of the marijuana demonstrates that her intent was to preserve the
evidence for police, not conceal it from them. Appellee’s Brief at 9. That
may be one reasonable inference that can be drawn from the evidence and
argued at trial, but it is not a relevant inference in a prima facie analysis.
We are instructed to examine the evidence in the light most favorable
to the Commonwealth, and to make those reasonable inferences that would
support a verdict of guilty, not undermine it. Marti, 779 A.2d at 1180.
-7-
J-S55005-17
Viewed through this lens, the evidence supports the Commonwealth’s
position that Appellee had the requisite intent to conceal the marijuana, and
only later confessed to the crime after its commission.
While a jury might well find Appellee not guilty of the offense charged,
it is not for us or the trial court to decide guilt at this stage. At this stage,
the Commonwealth must only present evidence to establish sufficient
probable cause to believe Appellee committed the crime charged. Here, the
trial court should have denied Appellee’s Petition. Based on the foregoing,
the order of the trial court is reversed, and the charge of Tampering with or
Fabricating Physical Evidence is reinstated.
Order reversed. Case remanded. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/16/2017
-8-