J-E02006-18

                                 2019 PA Super 176



 COMMONWEALTH OF PENNSYLVANIA              :   IN THE SUPERIOR COURT OF
                                           :        PENNSYLVANIA
                     Appellant             :
                                           :
                                           :
              v.                           :
                                           :
                                           :
 RICHARD HOLSTON                           :   No. 223 EDA 2016

                 Appeal from the Order December 21, 2015
     In the Court of Common Pleas of Bucks County Criminal Division at
                      No(s): 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.

OPINION BY SHOGAN, J.:                                   FILED MAY 31, 2019

      The Commonwealth appeals from the order dismissing all charges filed

against Appellee, Richard Holston, the proprietor of a business known as

Summerdale Mills, which is a drapery and upholstery sales and manufacturing

business that performed work for the Risoldi family.      For the reasons that

follow, we affirm.

      We summarize the underlying history of this case as follows. The Risoldi

family experienced multiple fires in their residences, resulting in the filing of

numerous claims to insurance companies. Specifically, there were three fires,

one in June of 2009, another in August of 2010, and the third in October of

2013. Insurance claims were made for damages suffered in each of the fires,

including damage to window treatments provided by Summerdale Mills.
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Following the third fire, the insurer, AIG, refused to pay the claim for damage

to the window treatments unless the Risoldis produced documentation that

the window treatments had been replaced after the second fire and submitted

the cost of that replacement. The Risoldi family alleged that receipts were

lost in the fire and that Summerdale Mills did not have copies of the receipts.

       Ultimately, a grand jury was convened to investigate whether the Risoldi

family and their associates were involved in submitting fraudulent insurance

claims.1   Appellee was subpoenaed to testify before the grand jury and to

produce records of all business between Summerdale Mills and members of

the Risoldi family including checks, invoices, and estimates for replacement of

fabrics due to fires at the Risoldis’ residences.2

       On September 16, 2014, Appellee testified before the grand jury. On

October 8, 2014, a search warrant was executed at Summerdale Mills. At that

time, numerous documents were recovered pertaining to work performed by

Summerdale Mills for the Risoldi family.

       Also in October of 2014, after the execution of the search warrant, Mark

Goldman, a private investigator for the Risoldi family, delivered a binder of


____________________________________________


1We note that after the Bucks County District Attorney determined he had a
conflict of interest, the matter was referred to the Office of the Attorney
General.

2 Appellee became the owner of Summerdale Mills, which has been in business
for over thirty-five years, in January of 2014. The previous owner was
Abraham Reichbach, Appellee’s brother-in-law. Prior to assuming ownership
of Summerdale Mills, Appellee supervised the business’s fabrication shop.

                                           -2-
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documents to AIG purporting to contain records from Summerdale Mills

related to the window treatments. Some of the records misspelled the name

of the company and reflected amounts paid to Summerdale Mills without

description of the work or service provided.

        On December 19, 2014, the Thirty-Fifth Statewide Investigating Grand

Jury3 issued a presentment recommending that charges be filed against

Appellee, Claire Risoldi, Carl Risoldi, Carla Risoldi, Sheila Risoldi, Tom French,

and Mark Goldman in connection with an alleged multi-million-dollar

insurance-fraud scheme. Appellee was charged with one count each of corrupt

organizations, insurance fraud, criminal conspiracy, obstruction of the

administration of law, and perjury.4

        On February 4, 2015, the Commonwealth filed a petition seeking to file

bills of information without a preliminary hearing, and on March 3, 2015,

Judge Gavin denied the Commonwealth’s petition.           A preliminary hearing

ultimately was held before Magisterial District Judge C. Robert Roth on August

19, 2015.      At the conclusion of the preliminary hearing, the charges of

insurance fraud, criminal conspiracy, obstruction of the administration of law,




____________________________________________


3 We observe that, due to the prominence of the Risoldi family in Bucks County
politics, the entire Bucks County Court of Common Pleas recused itself from
the matter, and Senior Judge Thomas G. Gavin of Chester County was
appointed to preside over the case.

4   18 Pa.C.S. §§ 911, 4117(a)(2), 903(c), 5101, and 4902(a), respectively.

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and perjury were held for court.   The charge of corrupt organizations was

dismissed.

      On October 2, 2015, Appellee filed a petition for writ of habeas corpus.

On October 15, 2015, a hearing on the petition was held before Judge Gavin,

and on December 21, 2015, Judge Gavin granted habeas relief and dismissed

all charges against Appellee.   The Commonwealth filed this timely appeal.

Both the Commonwealth and the trial court have complied with Pa.R.A.P.

1925. On November 20, 2017, a panel of this Court affirmed the order of the

trial court. The Commonwealth then filed an application for reargument en

banc, which we granted. This matter is now ripe for our disposition.

      Before we address the merits of the Commonwealth’s appeal, we must

consider whether we have jurisdiction. We note that this matter involves an

appeal from a pretrial order. Generally, when criminal charges are dismissed

prior to trial, the Commonwealth can simply refile the charges and, therefore,

an appeal from such an order is interlocutory. Commonwealth v. Price, 684

A.2d 640, 641 (Pa. Super. 1996) (citing Commonwealth v. Waller, 682 A.2d

1292 (Pa. Super. 1996)).    However, under Pennsylvania Rule of Appellate

Procedure 311(d), in criminal cases the Commonwealth has a right to appeal

an interlocutory order if the Commonwealth certifies that the order will

terminate or substantially handicap the prosecution.     Commonwealth v.

Flamer, 53 A.3d 82, 86 n.2 (Pa. Super. 2012).       Specifically, Rule 311(d)

provides as follows:


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      In a criminal case, under the circumstances provided by law, the
      Commonwealth may take an appeal as of right from an order that
      does not end the entire case where the Commonwealth certifies
      in the notice of appeal that the order will terminate or substantially
      handicap the prosecution.

Pa.R.A.P. 311(d). The rule does not explicitly limit the Commonwealth’s right

of interlocutory appeal to any particular class of pretrial orders. Rather, it

indicates that the Commonwealth may take an appeal as of right “under the

circumstances provided by law.” Id.

      Here, the record reflects that the Commonwealth has included in its

notice of appeal a statement that the order on appeal dismissed all charges

and terminated the prosecution.        Notice of Appeal, 1/7/16.       Therefore,

pursuant to Pa.R.A.P. 311(d), this Court has jurisdiction to hear this appeal

from the trial court’s interlocutory order. See Commonwealth v. Jackson,

10 A.3d 341, 344 n.2 (Pa. Super. 2010) (noting the Superior Court may not

inquire into the grounds for the Commonwealth’s good faith certification)

(citing Commonwealth v. Moser, 999 A.2d 602, 605 n.2 (Pa. Super. 2010)).

We thus turn to the claims raised in this matter.

      The Commonwealth presents the following issue for our review:

      I. WHETHER THE LOWER COURT’S DISMISSAL OF CHARGES WAS
      A   MANIFEST    ABUSE  OF    DISCRETION   WHERE   THE
      COMMONWEALTH ESTABLISHED A PRIMA FACIE CASE FOR ALL
      CHARGES AND THE COURT’S RESOLUTION WAS CONTRARY TO
      THE STANDARDS FOR ANALYIZING [sic] SUFFICIENCY OF
      EVIDENCE TO SUPPORT A PRIMA FACIE CASE?




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Commonwealth’s Brief at 4.5           The Commonwealth contends that the trial

court’s order dismissing all charges was in error because the Commonwealth

allegedly presented sufficient evidence to establish a prima facie case for each

of the offenses dismissed.

       The evidentiary sufficiency, or lack thereof, of the Commonwealth’s

prima facie case for a charged crime is a question of law; this Court’s review

is plenary.    Commonwealth v. Karetny, 880 A.2d 505, 513 (Pa. 2005)

(citing Commonwealth v. Huggins, 836 A.2d 862 (Pa. 2003)). 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 its

pretrial, prima facie burden to establish the elements of a charged crime. Id.

       In Huggins, our Supreme Court explained:

              At the pre-trial stage of a criminal prosecution, it is not
       necessary for the Commonwealth to prove the defendant’s guilt
       beyond a reasonable doubt, but rather, its burden is merely to put
       forth a prima facie case of the defendant’s guilt. A prima facie
       case exists when the Commonwealth produces evidence of each
       of the material elements of the crime charged and establishes
       sufficient probable cause to warrant the belief that the accused
       committed the offense. The evidence need only be such that, if
       presented at trial and accepted as true, the judge would be
____________________________________________


5  We note that, excluding tables and appendices, the Commonwealth’s brief
is forty-seven pages long. Pursuant to Pa.R.A.P. 2135, a principal brief is
limited to 14,000 words, and when the brief exceeds thirty pages, the
appellant must certify with the appellate court that the brief complies with the
word limitation. See Pa.R.A.P. 2135(d) (stating that “[a]ny brief in excess of
the stated page limits shall include a certification that the brief complies with
the word count limits”). The Commonwealth’s brief includes a certification of
compliance indicating that the word count for the entire document is 10,652
words.

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        warranted in permitting the case to go to the jury. Moreover,
        “[i]nferences 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.”

Id. at 866 (citations omitted).

        However, we have also noted that “suspicion and conjecture are not

evidence and are unacceptable as such.” Commonwealth v. Packard, 767

A.2d 1068, 1071 (Pa. Super. 2001).           “[W]here the Commonwealth’s case

relies solely upon a tenuous inference to establish a material element of the

charge, it has failed to meet its burden of showing that the crime charged was

committed.”      Commonwealth v. Wojdak, 466 A.2d 991, 997 (Pa. 1983)

(emphasis in original).

                                      PERJURY

        The Commonwealth first argues that the trial court erred in determining

that the Commonwealth failed to present sufficient evidence to support a

prima    facie   finding   that   Appellee   committed   the    crime   of   perjury.

Commonwealth’s Brief at 18-33. Specifically, the Commonwealth asserts that

it “charged [Appellee] with perjury under subsection (a) because he made

false statements under oath during his grand jury testimony which were

material to the [Risoldi family’s] insurance claim related to window treatments

and the grand jury’s investigation of that claim.”             Id. at 19-20.     The

Commonwealth further contends:

              The basis of the perjury charge was [Appellee’s] testimony
        that he could not provide documentation related to the Risoldi

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     window treatments because Summerdale Mills had gone
     “paperless” in 2006 and his computer hard drive containing the
     electronic documents as well as the back-up system had failed.
     Specifically, [Appellee] testified before the grand jury on
     September 16, 2014, that he “looked through any of the boxes
     that had files that I could find to try to comply with the
     subpoena.[”] In this purportedly exhaustive search, [Appellee]
     produced only 68 pages of documents which consisted solely of
     diagrams related to window treatment fabrication. He further
     acknowledged that he did not produce any canceled checks,
     invoices, estimates, or similar documents.

            On October 9, 2014, members of the [Office of the Attorney
     General] executed a search warrant at Summerdale Mills. During
     the search, over 450 pages of documents related to transactions
     with the Risoldi’s [sic] were recovered from Summerdale Mills
     including 189 pages of Risoldi documents recovered from an office
     with [Appellee’s] own name on the door. These documents
     included, inter alia, invoices, work orders, estimates, shipping
     logs, payment logs, and installation logs for the Risoldi’s [sic].
     Significantly, among the documents provided to the [Office of the
     Attorney General] pursuant to the subpoena were copies of
     documents subsequently located among the same files as
     documents not produced.

           Viewed in the light most favorable to the Commonwealth as
     required, it is reasonable to infer that [Appellee] selected a small
     portion of documents to produce while holding the majority of
     them, notably the most relevant documents, [sic] back. It
     unequivocally establishes that [Appellee] knowingly provided false
     testimony concerning the number of documents he was able to
     recover.

Id. at 20-21 (citations to reproduced record omitted) (emphasis in original).

Thus, the Commonwealth bases its argument on the allegation that Appellee

was untruthful in his testimony regarding the production of documents.

     The Crimes Code defines perjury, in relevant part, as follows:

     § 4902. Perjury.




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      (a) Offense defined. — A person is guilty of perjury, a felony of
      the third degree, if in any official proceeding he makes a false
      statement under oath or equivalent affirmation, or swears or
      affirms the truth of a statement previously made, when the
      statement is material and he does not believe it to be true.

      (b) Materiality. — Falsification is material, regardless of the
      admissibility of the statement under rules of evidence, if it could
      have affected the course or outcome of the proceeding. It is no
      defense that the declarant mistakenly believed the falsification to
      be immaterial. Whether a falsification is material in a given factual
      situation is a question of law.

                                     * * *

      (f) Corroboration. — In any prosecution under this section,
      except under subsection (e) of this section, falsity of a statement
      may not be established by the uncorroborated testimony of a
      single witness.

18 Pa.C.S. § 4902.

      This Court has explained that perjury is more than false testimony:

            The crime of perjury is not synonymous with “false
      testimony”. In order to constitute the crime of perjury several
      elements must be present, among which is the requirement that
      the false testimony must have been material to the proceeding at
      which it was made. The issue as to whether false testimony is
      material to the proceeding is a question of law.

            A false statement, made under oath, is material “if it could
      have affected the course or outcome of the proceeding.”
      Materiality is to be determined as of the time that the false
      statement was made. Furthermore, the test of the materiality of
      a false statement is whether it can influence a fact-finder, not
      whether it does.     The fact that the false testimony was
      unnecessary to accomplish the end in view will not render it
      immaterial.

Commonwealth v. Lafferty, 419 A.2d 518, 521-522 (Pa. Super. 1980)

(citations omitted).   We have determined accordingly that the elements of


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perjury are established if: 1) in an official proceeding; 2) under oath or

affirmation to tell the truth; 3) the defendant made a false statement knowing

it to be false; and 4) the statement was material to the matter then at issue.

Id.

      The trial court set forth the following findings of fact pertaining to

Appellee’s grand jury testimony:

      13. [Appellee] appeared before the 35th Statewide Investigating
      Grand Jury on September 16, 2014, pursuant to a subpoena which
      also directed the production of documents.3 Pg. 3.

            3 The following findings are from the transcript of that
            proceeding. As [Appellee’s] testimony is the basis of
            the perjury charge, it is no longer subject to the
            secrecy provisions of Grand Jury testimony.

      14. Exhibit C-147 is the transcript of [Appellee’s] appearance
      before the 35th Statewide Investigating Grand Jury on September
      16, 2014 and Exhibit C-200 is the audio recording of his
      appearance.

      15. The property at 8101 Frankford Avenue, Philadelphia has
      signage for both Philadelphia Draperies, LLC and Summerdale
      Mills. Pg. 4.

      16. [Appellee] is the owner of Philadelphia Draperies, LLC. Pg. 5

      17. Philadelphia Draperies, LLC currently does business as
      Summerdale Mills. Pg. 5

      18. [Appellee] has owned the business (Summerdale Mills) since
      2014. Pg. 5.

      19. His brother-in-law, Abraham Reichbach, was the prior owner
      of Summerdale Mills. Pg. 5

      20. [Appellee] knows Claire Risoldi who was a customer of
      Summerdale. Pg. 8.


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     21. He first met her in 2013. Pg. 8.

     22. After the 2010 fire at the Claire Risoldi residence, he did a
     portion of the (restoration/replacement) work, not the entire
     house. Pg. 9, l. 14 - pg. 10, l. 7.

     23. Pursuant to the subpoena, he produced 68 pages of
     documents. See Exhibit C-86. Pg. 11.

     24. The produced items were essentially fabrication diagrams.

     25. [Appellee] did not produce cancelled checks, invoices, etc. as,
     “I don’t have them.” Pg. 12.

     26. He didn’t have them as

           “Well, our computer hard drive, which he had
           everything financial, which had all the orders,
           invoices, everything, that hard drive died at the end
           of April, beginning of May of this past year. And then
           we called in several companies to try and restore it.
           And they were unable to do that. And then we sent it
           out to a company to see if they could restore it. They
           recently responded that it was not able to be
           recovered. And that was all the data that had been
           passed on to me from 2006 on. We relied on that.”
           Pg. 12, l. 24 - Pg. 13, l. 9.

     27. He does not have access to the pre-January 2014 financial
     records as they were with the prior owner. Pg. 15.

     28. [Appellee] requested access to the records but the prior owner
     did not provide them. Pg. 15 -16.

     29. He rented space in the Summerdale Mills facility between
     2010-2013. Pg. 17.

     30. His brother-in-law gave him the business (Summerdale Mills).
     Pg. 18.

     31. [Appellee] does not have access to [previous] Summerdale
     Mills bank accounts as he opened new accounts. Pg. 18.




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     32. He did not speak to the former owner or ask questions of him,
     as per “pg. 21, ll. 13-15.”

           “Q Hey, Abe, do you remember who did what for Mrs.
           Risoldi’s fire when we were replacing the drapes for
           her?
           A No. I didn’t.
           Q Is there a reason you didn’t ask him about that?
           A Yes. Because I don’t want to testify secondhand
           something that someone tells me that I don’t know
           that I wasn’t a witness to.
           Q You did not even bother asking him?
           A I did not.”
           Pg. 21, ll. 7-17.

     33. He was at Claire Risoldi’s residence in October 2013 to check
     the installation of material. This was approximately a week before
     the 2013 fire. Pg. 23.

     34. [Appellee] was unaware of the 2009 fire at Claire’s residence
     until the fire of October 22, 2013. Pg. 23.

     35. When he did work for Summerdale Mills, he did not know the
     identity of the customer as,

           “Q And so you are saying, from these records, you
           won’t be able to identify which of it pertained to Mrs.
           Risoldi’s order?
           A No. I can’t.
           Q Why is that?
           A In this business - and I do it now - I don’t give my
           workrooms the customers’ names because I don’t
           went [sic] them soliciting work or going and giving
           them to another decorator. So it was always a work
           order number. And I can - it would accumulate, like I
           said, by work order number when we were doing what
           we worked on.         And then we would invoice
           Summerdale.”
           Pg. 27, ll. 2-14.

     36. [Appellee] is aware that Claire Risoldi is in the process of
     rebuilding her house. Pg. 35.




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     37. He does not know if Summerdale Mills has given Claire an
     estimate. Pg. 36.

     38. Following the fire of October 22, 2013, the drapes from Claire’s
     home were taken to Summerdale Mills (for storage). Pg. 44.

     39. The drapes were returned to the Risoldi’s. Pg. 48.

     40. [Appellee] spoke to Claire after the fire about a new order.
     Pg. 52.

     41. Claire spoke to his sales person, Beata. Pg. 35.

     42. He did not know if Beata gave Claire any replacement pricing.
     Pg. 36.

Trial Court Opinion, 12/29/15, at 3-6.

     The trial court addressed the lack of evidence to set forth a prima facie

case that Appellee committed the crime of perjury as follows:

           [Appellee] was held for court on a violation of 18 Pa.C.S.A.
     § 4902(a). This offense requires that defendant make a false
     statement under oath or affirm the truth of a statement previously
     made when the statement is material and he does not believe it
     to be true.

           The record reveals that [Appellee] met with the AG on
     September 2, 2014 prior to his Grand Jury appearance and made
     statements. The record does not establish what those statements
     were, whether they were made under oath or equivalent
     affirmation, whether they were recorded, etc. See the Grand Jury
     Notes of Testimony, pg. 9, line 14 through pg. 11, line 5 for the
     exchange between the AG and [Appellee] as to what [Appellee]
     had or had not said during the meeting of September 2.

          [Appellee] was under oath when he testified before the
     Grand Jury.

           I had the luxury of being able to read and re-read the Grand
     Jury transcript. I did so as I was shocked by the manner in which
     [Appellee] was questioned. What was intended to be an inquiry
     into what [Appellee] did or did not know or did or did not do took

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     on the aspect of an inquisition. Present before the Grand Jury
     were three Deputy AGs. A fair read of the testimony reveals AGs
     who were alternately frustrated by or disbelieving of [Appellee’s]
     responses. In fact, it is fair to conclude that they thought they
     were being “jerked around.” The reaction to this perceived
     “jerking around” was unfortunate. Instead of stepping back,
     taking a deep breath and directing narrow questions to defendant,
     one of the AGs let his displeasure get the better of him. As a
     professional courtesy to the offending AG, not Mr. Augenbraun, I
     do not name him or set out in detail his comments. I do so as I
     realize his comments were out of character and motivated by his
     frustration. Instead, I note them in a footnote.5 No witness
     should be subjected to such comments, comments that would not
     be uttered in a judge-supervised proceeding. Further, I note my
     disapproval of multiple attorneys questioning a witness whenever
     they feel the need to jump in and do so. This practice made an
     already confusing examination even more so and gave the
     appearance of a “tag team” wrestling match. The fact that many
     of the questions posed were compound questions did not help and
     made it difficult to determine exactly what the witness was
     responding to.

           5 Examples of what I consider to be unprofessional
           questions or comments to [Appellee’s] responses can
           be found at N.T., pg. 14, 11. 3-9; pg. 37, 11. 2-20;
           pg. 38, 1. 7; pg. 39, 1. 20 and pg. 58, 11. 1-3.

           The AG failed to establish any variance between [Appellee’s]
     comments on September 2 and his Grand Jury testimony as there
     was no evidence presented as to what he said on September 2.
     As such, this supposed variance cannot form the basis of the
     perjury charge.

           The focus of the AG inquiry before the Grand Jury was
     [Appellee’s] failure to properly and timely respond to its
     subpoena. See letter of August 15, 2014, attached hereto as
     Exhibit “A.” This issue requires an analysis of what responsibility
     a successor owner has to retain and/or search through records of
     the prior owner. The AG implicitly asserts that a successor owner
     has a duty to maintain and produce records created at a time prior
     to his ownership. Alternatively, the AG suggests that if the
     records are on the premises and can be accessed, there is a duty
     to produce them. The AG cites no authority for this position, nor
     do I believe they can. The fact that the AG believes the failure of

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     computers on which records might exist is too convenient to be
     true or that [Appellee] cannot give a street address for his
     brother-in-law or computer consultant is not credible, is irrelevant
     to the duty to produce analysis. The issue is what was he in legal
     possession of and required to produce. To ask the question is to
     answer it. [Appellee] was not in legal possession of Summerdale’s
     pre-2014 records and had no duty to produce them. A simple
     example will make my point. When I came on the bench, I left
     my old client files stored in the basement of a building I owned. I
     then rented the building to a third party who had access to my
     basement. I doubt the third party or anyone else for that matter
     believed he could exercise control over the files and certainly could
     not be compelled to produce them as they were not his. In fact,
     were he to take possession of them, he would arguably be
     committing a theft. [Appellee] was in this very position. However,
     before even needing to consider this scenario, his answers clearly
     reveal that he provided what he thought he was obligated to
     produce and/or that which he thought was in his control. When
     informed that his interpretation was erroneous, he indicated that
     he would comply to the extent possible. As such he made no false
     representations. In reaching my conclusion that [Appellee] had
     no ownership of or control over the Summerdale records pre-
     2014, I have considered the civil case law as to “successor
     liability” as it is somewhat analogous. “Successor liability” focuses
     on whether the transferee can be responsible for the debts or
     liabilities of the transferor (here, the records) SIMPLY BECAUSE IT
     ACQUIRED THE SELLER’S PROPERTY. See Johnson v. American
     Standard, 8 A.3d 318 (Pa. 2010). The general rule is non-liability
     unless credible evidence is produced to overcome it.             If a
     transferee cannot be responsible for debt, etc., it most certainly
     can’t be responsible to maintain or produce records of the
     transferor. The exceptions to the general rule can be found at
     Johnson, 8 A.3d at 322, fn 1. A closer analogy is the criminal law
     relating to possessory offenses. To be liable as a possessor, one
     must have actual or constructive possession of the item and the
     intent to control the item. The fact that the item is in an area that
     defendant has access to does not establish his control over it, let
     alone his intent to possess it. There was no evidence, direct or
     circumstantial, of [Appellee’s] intent to possess or control the pre-
     2014 documents of Summerdale. As the pre-2014 Summerdale
     records were not [Appellee’s], he had no duty to produce them
     and was improperly held on the perjury count.

Trial Court Opinion, 12/29/15, at 9-12.

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      After thorough review of the record, we conclude that the trial court

correctly determined the Commonwealth failed to present a prima facie case

that Appellee committed perjury while testifying before the grand jury. Thus,

there is no support for the Commonwealth’s assertion that “it is reasonable to

infer that [Appellee] selected a small portion of documents to produce while

holding the majority of them, notably the most relevant documents, back.”

Commonwealth’s Brief at 21. The Commonwealth would have us conclude

that, because documents that were not turned over by Appellee pursuant to

the subpoena were discovered during the subsequent execution of a search

warrant, Appellee knowingly lied about the existence of the documents.

However, it is our determination that the Commonwealth failed to set forth

sufficient evidence beyond mere suspicion that Appellee had any knowledge

of the existence of the documents that were discovered during the execution

of the search warrant.

      Furthermore, there is no evidence beyond mere conjecture that Appellee

made false statements regarding his inability to present the subpoenaed

documentation to the grand jury or that he made purportedly false statements

knowingly. Suspicion and conjecture are not evidence and are unacceptable

as such. Packard, 767 A.2d at 1071. Indeed, review of the transcript of

Appellee’s testimony before the grand jury reflects that Appellee provided

thorough explanations pertaining to the basic operation of the business he

received from his brother-in-law approximately nine months earlier, his lack


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of knowledge and access regarding the business’s bank accounts prior to

Appellee’s ownership, his reasons for producing a limited number of

documents, and the difficulty in locating additional documents. N.T., 9/16/14,

at 3-82.   There is no indication in the record that Appellee knew that his

statements regarding his inability to present additional documentation

pursuant to the subpoena were false. Consequently, the Commonwealth relies

solely upon a tenuous inference to establish this element of perjury. Therefore,

the Commonwealth has failed to meet its burden showing that a crime was

committed. Wodjak, 466 A.2d at 997. Hence, we conclude the trial court

properly determined that the Commonwealth failed to set forth a prima facie

case with regard to the charge of perjury

                           CRIMINAL CONSPIRACY

      The Commonwealth next argues that the trial court erred in concluding

that the Commonwealth failed to establish a prima facie case that Appellee

committed the crime of criminal conspiracy to commit insurance fraud.

Commonwealth’s Brief at 33-40. The Commonwealth essentially asserts that,

because Appellee’s attorney received documents that had been delivered to

AIG, Appellee was somehow involved in the alleged effort of the Risoldi family

to defraud AIG. Id.

      Before we may review the Commonwealth’s claim, we observe that the

fundamental tool for appellate review is the official record of the events that

occurred in the trial court. Commonwealth v. Preston, 904 A.2d 1, 6 (Pa.


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Super. 2006) (citing Commonwealth v. Williams, 715 A.2d 1101, 1103 (Pa.

1998)). The law of Pennsylvania is well settled that matters which are not of

record cannot be considered on appeal. Id. Commonwealth v. Bracalielly,

658 A.2d 755, 763 (Pa. 1995); Commonwealth v. Baker, 614 A.2d 663,

672 (Pa. 1992); Commonwealth v. Quinlan, 412 A.2d 494, 496 (Pa. 1980).

      A certified record consists of the “original papers and exhibits filed in

the lower court, paper copies of legal papers filed with the prothonotary by

means of electronic filing, the transcript of proceedings, if any, and a certified

copy of the docket entries prepared by the clerk of the lower court[.]”

Pa.R.A.P. 1921 “We can only repeat the well established principle that ‘our

review is limited to those facts which are contained in the certified record’ and

what is not contained in the certified record ‘does not exist for purposes of our

review.’” Commonwealth v. Brown, 161 A.3d 960, 968 (Pa. Super. 2017)

(quoting Commonwealth v. B.D.G., 959 A.2d 362, 372 (Pa. Super. 2008)).

            Our law is unequivocal that the responsibility rests upon the
      appellant to ensure that the record certified on appeal is complete
      in the sense that it contains all of the materials necessary for the
      reviewing court to perform its duty.           Commonwealth v.
      Kleinicke, 2006 PA Super 48, 895 A.2d 562, 575 (Pa. Super.
      2006) (en banc). In [Preston], we explained that to facilitate an
      appellant’s ability to comply with this requirement, our Supreme
      Court adopted the following procedural rule effective June 1,
      2004:

            The clerk of the lower court shall, at the time of the
            transmittal of the record to the appellate court, mail a
            copy of the list of record documents to all counsel of
            record, or if unrepresented by counsel, to the parties
            at the address they have provided to the clerk. The


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             clerk shall note on the docket the giving of such
             notice.

      Pa.R.A.P. 1931(d). As the explanatory comment to Rule 1931
      indicates, if counsel (or a party) discovers that anything material
      has been omitted from the certified record, the omission can be
      corrected pursuant to the provisions of Rule of Appellate
      Procedure 1926. Under Rule 1926, an appellate court may direct
      that an omission or misstatement shall be corrected through the
      filing of a supplemental certified record. However, this does not
      alter the fact that the ultimate responsibility of ensuring that the
      transmitted record is complete rests squarely upon the appellant
      and not upon the appellate courts. Preston, [904 A.2d] at 7.

Commonwealth v. Bongiorno, 905 A.2d 998, 1000-1001 (Pa. Super. 2006)

(en banc).

      In addition, in Commonwealth v. Brown, 52 A.3d 1139 (Pa. 2012),

our Supreme Court indicated that, in certain circumstances, we may consider

an item included in the reproduced record that has been omitted from the

certified record. Specifically, where the accuracy of a document is undisputed

and contained in the reproduced record, we may consider it. Id. at 1145 n.4.

See also Pa.R.A.P. 1921 Note (stating “that where the accuracy of a pertinent

document is undisputed, the Court could consider that document if it was in

the Reproduced Record, even though it was not in the record that had been

transmitted to the Court” (citing Brown, 52 A.3d at 1145 n.4)).

      Our review of the certified record reflects that neither the binder nor a

copy of the purportedly fraudulent documents contained therein was included

in the certified record for transmittal to this Court.          Therefore, the

Commonwealth, as the appellant, failed to ensure that a complete record is


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before this Court for review.6 Moreover, the Commonwealth failed to include

a copy of the documents from the binder in the reproduced record presented


____________________________________________


6 We observe that the certified record was received in this Court on April 28,
2016. Subsequently, on June 22, 2016, the Commonwealth filed with the trial
court an “application to supplement the record pursuant to Pa.R.A.P. 1926,”
which bore captions for this case (Superior Court No. 223 EDA 2016) and for
the case of Appellee’s co-defendant, Mark Goldman (Superior Court No. 3822
EDA 2015). In its application, the Commonwealth stated the following:

       1. In order that the record may be complete in this matter, the
       Commonwealth requests that [the trial court] direct that the
       appellate record be supplemented with the following exhibits
       admitted during the preliminary hearing:

              Exhibit 47: Carl Risoldi EUO;

              Exhibit 48: Carla Risoldi EUO;

              Exhibit 49: Claire Risoldi EUO;

              Exhibit 50: Mark Goldman EUO;

              Exhibit 72: Sheila Risoldi EUO;

              Exhibit 93: EUO excerpt; and

              Exhibit 94: EUO excerpt.

       2. The Commonwealth requests that the [trial c]ourt grant this
       application and direct that the supplemental record be certified
       and transmitted pursuant to Pa.R.A.P. 1926(b)(1), (c).

Application, 6/22/16, at 1-2. On June 23, 2016, the trial court granted the
Commonwealth’s application to supplement the record and directed the clerk
of courts to certify and transmit to this Court the requested exhibits. Order,
6/23/16, at 1.

      Likewise, on February 1, 2018, the Commonwealth filed with the trial
court a second “application to supplement the record pursuant to Pa.R.A.P.
1926,” which bore the caption for this case (Superior Court No. 223 EDA
2016). In the application, the Commonwealth stated the following:



                                          - 20 -
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to this Court. Accordingly, because we cannot conduct a thorough review of

the issue of whether the Commonwealth presented a prima facie case that

Appellee committed the crime of criminal conspiracy without reference to the

allegedly fraudulent documents delivered to his attorney by Mr. Goldman, our

review is hampered, and we are constrained to deem this issue to be waived

on appeal. However, even if we had not determined that the issue, we would

conclude that the Commonwealth’s claim fails under generally applicable legal

principles.

       The crime of criminal conspiracy is set forth in Section 903 of the Crimes

Code which provides, in relevant part, as follows:

       § 903. Criminal conspiracy.



____________________________________________


       1. In order that the record may be complete in this matter, the
       Commonwealth requests that [the trial court] direct that the
       appellate record be supplemented with the following exhibits
       admitted during the preliminary hearing:

              Exhibit 147:    Transcript of Richard Holston’s
              September 16, 2014 grand jury testimony.

       2. The Commonwealth requests that the [trial c]ourt grant this
       application and direct that the supplemental record be certified
       and transmitted pursuant to Pa.R.A.P. 1926(b)(1), (c).

Application, 2/1/18, at 1-2. On February 5, 2018, the trial court granted the
Commonwealth’s application and directed the clerk of courts to certify and
transmit to this Court the requested transcript, which was admitted as Exhibit
147. Order, 2/5/18, at 1. Thus, when presented with the opportunity to
correct deficiencies in the record, the Commonwealth did so. However, the
Commonwealth failed to take the appropriate measures to ensure that the
certified record was complete for our review of this issue.


                                          - 21 -
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     (a) Definition of conspiracy. — A person is guilty of conspiracy
     with another person or persons to commit a crime if with the intent
     of promoting or facilitating its commission he:

           (1) agrees with such other person or persons that
           they or one or more of them will engage in conduct
           which constitutes such crime or an attempt or
           solicitation to commit such crime; or

           (2) agrees to aid such other person or persons in the
           planning or commission of such crime or of an attempt
           or solicitation to commit such crime.

     (b) Scope of conspiratorial relationship. — If a person guilty
     of conspiracy, as defined by subsection (a) of this section, knows
     that a person with whom he conspires to commit a crime has
     conspired with another person or persons to commit the same
     crime, he is guilty of conspiring with such other person or persons,
     to commit such crime whether or not he knows their identity.

     (c) Conspiracy with multiple criminal objectives. — If a
     person conspires to commit a number of crimes, he is guilty of
     only one conspiracy so long as such multiple crimes are the object
     of the same agreement or continuous conspiratorial relationship.

                                   * * *

     (e) Overt act. — No person may be convicted of conspiracy to
     commit a crime unless an overt act in pursuance of such
     conspiracy is alleged and proved to have been done by him or by
     a person with whom he conspired.

18 Pa.C.S. § 903.

     Furthermore, we have explained the following:

           A conviction for criminal conspiracy, 18 Pa.C.S.A. § 903, is
     sustained where the Commonwealth establishes that the
     defendant entered an agreement to commit or aid in an unlawful
     act with another person or persons with a shared criminal intent
     and an overt act was done in furtherance of the conspiracy.

          The essence of a criminal conspiracy is the common
     understanding that a particular criminal objective is to be

                                    - 22 -
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       accomplished. Mere association with the perpetrators, mere
       presence at the scene, or mere knowledge of the crime is
       insufficient. Rather, the Commonwealth must prove that the
       defendant shared the criminal intent, i.e., that the Appellant was
       “an active participant in the criminal enterprise and that he had
       knowledge of the conspiratorial agreement.” The defendant does
       not need to commit the overt act; a co-conspirator may commit
       the overt act.

             A conspiracy is almost always proven through circumstantial
       evidence. “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.”
       The evidence must, however, “rise above mere suspicion or
       possibility of guilty collusion.”

                    Among the circumstances which are relevant,
              but not sufficient by themselves, to prove a corrupt
              confederation are: (1) an association between alleged
              conspirators; (2) knowledge of the commission of the
              crime; (3) presence at the scene of the crime; and (4)
              in some situations, participation in the object of the
              conspiracy. The presence of such circumstances may
              furnish a web of evidence linking an accused to an
              alleged conspiracy beyond a reasonable doubt when
              viewed in conjunction with each other and in the
              context in which they occurred.

Commonwealth v. Lambert, 795 A.2d 1010, 1016 (Pa. Super. 2002) (en

banc) (citations omitted).

       Our review of the record reflects the trial court observed that “there was

no evidence that would support [Appellee’s] involvement in a conspiracy to

defraud.” Trial Court Opinion, 4/22/16, at 3.7 We are constrained to agree.

____________________________________________


7  In doing so, the trial court corrected its initial determination in its opinion
dated December 29, 2015, that the Commonwealth failed to prove a prima
facie case of conspiracy to commit theft by deception. In recognizing its



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       First, we note that Appellee had an association with the Risoldi family

because he was the current owner of Summerdale Mills. Summerdale Mills

was the company that provided certain window treatments for the Risoldi

residence, and the Risoldi family filed an insurance claim seeking proceeds to

replace the window treatments.

       Second, we observe that there is no evidence to establish that Appellee

had knowledge of the commission of a crime. Specifically, with regard to the

Commonwealth’s claim that Appellee’s “lies to the grand jury dovetail perfectly

with Claire Risoldi’s lies to AIG,” and that “[t]he identical lies establish the

agreement to defraud AIG,” Commonwealth’s Brief at 38, our review of the

certified record reflects no evidence that Appellee was aware of any alleged

lies made by Claire Risoldi to the insurance company.

       Third, we consider Appellee’s presence at the scene. Again, we note

that Appellee, as the current owner of Summerdale Mills, was called to testify

before a grand jury in that capacity. However, there was not a specific scene

of the crime as contemplated in the factors set forth in Lambert. Accordingly,

we conclude that this factor is not relevant to our inquiry.




____________________________________________


previous error, the trial court stated, “The AG asserts that I had the object of
the conspiracy wrong in that I mentioned theft by deception when it was
insurance fraud. I have no recall as to why I wrote that. However, I
understood that the AG’s theory was insurance fraud and that all Defendants
were acting toward that end.” Trial Court Opinion, 4/22/16, at 3 (footnote
omitted).

                                          - 24 -
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     Fourth, we review Appellee’s participation in the object of the

conspiracy. As mentioned above, Appellee is the owner of Summerdale Mills,

which provided window treatments to the Risoldi family, and the family sought

insurance proceeds to replace the window treatments. In addition, Appellee

testified before the grand jury investigating the alleged insurance-fraud

scheme perpetrated by the Risoldi family. As the Commonwealth observes,

“[F]ollowing the execution of the search warrant at Summerdale Mills, co-

defendant Mark Goldman delivered a binder of documents to AIG as well as

to the [office of the Attorney General] purporting to contain records from

Summerdale Mills which included records previously claimed by both the

Risoldi’s [sic] and [Appellee] to not exist.” Commonwealth’s Brief at 35-36.

The Commonwealth further acknowledges that it “never alleged that

[Appellee] fabricated the Summerdale Mills invoices presented to AIG.” Id.

at 37. Rather, the Commonwealth contends the fact that the same invoices

that were delivered to AIG were also delivered to Appellee’s attorney is

indicative of a conspiracy between Appellee and the Risoldis. However, the

mere receipt of the allegedly fraudulent documents by Appellee’s attorney

after Appellee testified before the grand jury and after the execution of the

search warrant at his business, amounts to speculation and conjecture, which

fails to establish that Appellee was an active participant in the criminal

enterprise or that he had knowledge of a conspiratorial agreement.

Accordingly, we are left to conclude that the Commonwealth failed to furnish


                                   - 25 -
J-E02006-18


a web of evidence linking Appellee to an alleged conspiracy. Consequently,

had we not determined that this issue is waived, within the confines of the

record before us, we would conclude that the trial court properly determined

that the Commonwealth failed to set forth a prima facie case with regard to

the charge of criminal conspiracy.

                             INSURANCE FRAUD

      The Commonwealth next argues that the trial court erred in concluding

that the Commonwealth failed to establish a prima facie case that Appellee

committed the crime of insurance fraud. Commonwealth’s Brief at 40-45. The

Commonwealth asserts that, by providing testimony and only certain

documents to the grand jury and failing to provide other documents to the

grand jury, Appellee essentially corroborated and furthered the efforts of the

Risoldi family to defraud AIG in relation to the insurance claim for replacement

of the window treatments. Id. at 43-44.

      The Crimes Code defines insurance fraud, in relevant part, as follows:

      § 4117. Insurance fraud.

      (a) Offense defined. - A person commits an offense if the person
      does any of the following:

                                     * * *

            (2) Knowingly and with the intent to defraud any
            insurer or self-insured, presents or causes to be
            presented to any insurer or self-insured any
            statement forming a part of, or in support of, a claim
            that contains any false, incomplete or misleading
            information concerning any fact or thing material to
            the claim.

                                     - 26 -
J-E02006-18



18 Pa.C.S. § 4117(a)(2) (emphases added). In addition, the statute defines

the term “statement,” in part, as “[a]ny oral or written presentation or other

evidence of loss, injury or expense, including, but not limited to, any notice,

statement, proof of loss, bill of lading, receipt for payment, invoice, account,

estimate of property damages, bill for services, . . . or computer-generated

documents.” 18 Pa.C.S. § 4117(l)

      It is undisputed that, absent documentation that the window treatments

had been replaced following the second fire at the Risoldi residence, AIG

refused to pay the insurance claim related to the window treatments after the

third fire. Moreover, it is undisputed that subsequent to Appellee testifying

before the grand jury and a search warrant being executed at Summerdale

Mills, Mark Goldman, a private investigator employed by the Risoldi family,

delivered a binder to AIG that contained documents purportedly relating to

the window treatments in question.

      However, the Commonwealth presented no evidence that Appellee knew

that the documents contained in the binder comprised any false, incomplete,

or misleading information as required under the statute. Indeed, evidence of

the requisite knowledge cannot be inferred from our thorough reading of the

certified record. Rather, as the trial court stated, “The [Attorney General] did

not present any evidence of a Summerdale quote that was provided to the

insurer in the 2013 fire [claim].     Nor was any evidence presented that

[Appellee] aided or abetted the submission of false information to the insurer

                                     - 27 -
J-E02006-18


in the 2013 fire [claim].” Trial Court Opinion, 12/29/15, at 8. Thus, while

Appellee may have given statements to the grand jury relevant to the

existence of various documents and Appellee’s ability to provide documents

to the grand jury, there is no showing that these statements were made with

any intent by Appellee to defraud the insurer. Therefore, even if the alleged

misstatements contained in the binder were found to be material to the

insurance claim, there is no evidence that Appellee had any knowledge of what

was contained within the binder. Moreover, there is nothing in the record to

indicate that Appellee was attempting to collect any money from the insurer.

Hence, we are left to conclude, as did the trial court, that Appellee did not

have the necessary mens rea to acquire anything from the insurer. Thus, the

Commonwealth’s claim fails.

                        OBSTRUCTION OF JUSTICE

     The Commonwealth last argues that the trial court erred in concluding

that the Commonwealth failed to establish a prima facie case that Appellee

committed the crime of obstruction of justice. Commonwealth’s Brief at 45-

46. The Commonwealth states the following:

           It is the Commonwealth’s position that under the same
     reasoning that a prima facie case was established for perjury, this
     count of obstruction of justice was supported by sufficient
     evidence to establish a prima facie case. [Appellee’s] failure to
     produce the subpoenaed records and his lies under oath
     demonstrated a clear intent to obstruct the grand jury’s
     investigation. As argued above, the lower court’s conclusion that
     [Appellee] had no duty to produce the subpoenaed records was
     contrary to all standards relevant to determining whether or not a
     prima facie case had been met.

                                   - 28 -
J-E02006-18



Id.

      As set forth in our review of the charge of criminal conspiracy, the

Commonwealth has failed to ensure that the certified record before this Court

is complete in order that we may review the merits of this claim as well. With

regard to the charge of obstruction of justice, our review of the record reflects

that the documents Appellee actually produced pursuant to the grand jury’s

subpoena were presented in proceedings before the district magistrate as

Commonwealth Exhibit 149. N.T., 8/19/15, at 61. In addition, the documents

that were subsequently recovered during the execution of the search warrant

at Summerdale Mills were presented in proceedings before the district

magistrate as Commonwealth Exhibit 146.          Id. at 12-13.    However, the

Commonwealth has failed to include, in either the certified record or the

reproduced record, copies of the documents that comprised Exhibit 149, i.e.,

the documents actually secured pursuant to the subpoena.          Moreover, the

Commonwealth did not seek to supplement the record to correct this specific

deficiency pursuant to Pa.R.A.P. 1926. As such, we cannot compare those

items that were voluntarily turned over pursuant to the subpoena to those

items that were subsequently recovered during the search. Accordingly, our

review of this claim is hampered, and we are constrained to conclude that this

issue is waived.   Again, even if not waived, we would conclude that the

Commonwealth’s claim lacks merit under generally applicable legal principles.

      The Crimes Code defines the crime of obstruction of justice as follows:

                                     - 29 -
J-E02006-18


             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
      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. § 5101. Our Supreme Court has explained:

      In order to establish that [a defendant] obstructed the
      administration of law under section 5101, the Commonwealth
      must establish that: (1) the defendant had the intent to obstruct
      the administration of law; and (2) the defendant used force or
      violence, breached an official duty or committed an unlawful act.

Commonwealth v. Goodman, 676 A.2d 234, 235 (Pa. 1996). We observed

in Commonwealth v. Snyder, 60 A.3d 165 (Pa. Super. 2013):

      In evaluating § 5101 convictions, our courts have explained that
      § 5101 is substantially based upon the Model Penal Code section
      242.1. As stated in the comment to section 242.1 of the Model
      Penal Code “[t]his provision is designed to cover a broad range of
      behavior that impedes or defeats the operation of government.”

Id. at 175 (case citations omitted).

      Our review of the record reflects the Commonwealth has failed to

establish that Appellee, who produced subpoenaed documents, had any

knowledge of the existence of the additional documents that were

subsequently seized pursuant to the search warrant. The Commonwealth’s

claim that Appellee must have known of the additional documents is mere

suspicion and conjecture. Again, suspicion and conjecture are not evidence

and are unacceptable as such. Packard, 767 A.2d at 1071. Consequently,


                                       - 30 -
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the Commonwealth relies solely upon a tenuous inference to establish this

element of obstruction of justice. Without knowledge of the existence of the

additional documents, we cannot conclude that Appellee intended to obstruct

the administration of law by failing to surrender them pursuant to the

subpoena.     Therefore, the Commonwealth has failed to meet its burden

showing that a crime was committed. Wodjak, 466 A.2d at 997.

     Order affirmed.

     Bender, P.J.E., Panella, J., Lazarus, J., and Dubow, J., join this Opinion.

     Gantman, P.J., and Nichols, J., concur in the result.

     McLaughlin, J., files a Concurring & Dissenting Opinion.

     Stabile, J., files a Dissenting Opinion.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/31/19




                                     - 31 -
