J-S53027-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellant

                       v.

STEPHANIE PEZZETTI-FUNK,

                            Appellee               No. 3369 EDA 2016


               Appeal from the Order Entered October 5, 2016
            In the Court of Common Pleas of Philadelphia County
            Criminal Division at No(s): MC-51-CR-0021627-2016


BEFORE: BENDER, P.J.E., OLSON, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY OLSON, J.:                      FILED SEPTEMBER 01, 2017

      The Commonwealth of Pennsylvania appeals from the order entered on

October 5, 2016, denying the Commonwealth’s motion to refile charges

against Appellee, Stephanie Pezzetti-Funk.   Upon careful consideration, we

reverse.

      The factual background and procedural history of this case are as

follows. On June 27, 2016, Appellee and her sister were scheduled for court

on an underlying simple assault matter. Gina Fuscellaro (“Fuscellaro”) was

scheduled to testify against Appellee and her sister. Fuscellaro was in the

hallway outside of the courtroom when Appellee approached her. Appellee

showed Fuscellaro a clenched fist and told her she “better drop the charges.”

N.T., 8/15/16, at 9. Fuscellaro left the courthouse and reported the incident

at a police station.
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       Appellee was charged via criminal complaint with intimidation of a

witness,1 conspiracy,2 and making terroristic threats.3 At the conclusion of a

preliminary hearing on August 15, 2016, all charges against Appellee were

dismissed as the municipal court found that the Commonwealth failed to

establish a prima facie case with respect to all three charges.           The

Commonwealth sought permission from the trial court to refile the charges.

On October 5, 2016, the trial court denied the Commonwealth’s motion to

refile the charges. This timely appeal followed.4

       The Commonwealth presents one issue for our review:

       Did the [trial] court err in denying the refiling of the charges
       against [Appellee] on the basis of insufficient evidence for a
       prima facie case, where the Commonwealth established that
       [Appellee] threatened the victim in an effort to prevent the
       victim from testifying against her?

Commonwealth’s Brief at 4.

       In its sole issue, the Commonwealth argues that it presented sufficient

evidence to establish a prima facie case of witness intimidation.     “At the

____________________________________________


1
    18 Pa.C.S.A. § 4952(a).
2
    18 Pa.C.S.A. § 903(c).
3
    18 Pa.C.S.A. § 2706(a)(1).
4
  The trial court did not order the Commonwealth to file a concise statement
of errors complained of on appeal (“concise statement”). See Pa.R.A.P.
1925(b). Nonetheless, the Commonwealth filed a concise statement on
October 25, 2016. On December 23, 2016, the trial court issued its opinion
pursuant to Pennsylvania Rule of Appellate Procedure 1925(a).



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preliminary hearing stage of a criminal prosecution, the Commonwealth need

not prove the defendant’s guilt beyond a reasonable doubt, but rather, must

merely put forth sufficient evidence to establish a prima facie case of guilt.”

Commonwealth v. Karetny, 880 A.2d 505, 529 (Pa. 2005). “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.”

Commonwealth v. Huggins, 836 A.2d 862, 866 (Pa. 2003) (citation

omitted).     “[T]he   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.” Karetny, 880 A.2d at 513

(citation omitted).

      An individual commits witness intimidation

      if, with the intent to or with the knowledge that [her] conduct
      will obstruct, impede, impair, prevent[,] or interfere with the
      administration of criminal justice, [s]he intimidates or attempts
      to intimidate any witness or victim to[ . . . w]ithhold any
      testimony, information, document[,] or thing relating to the
      commission of a crime from any law enforcement officer,
      prosecuting official[,] or judge.

18 Pa.C.S.A. § 4952(a)(3).     “[A]ctual intimidation of a witness is not an

essential element of the crime.” Commonwealth v. Collington, 615 A.2d

769, 770 (Pa. Super. 1992), appeal denied, 625 A.2d 1191 (Pa. 1993).

Instead, “[t]he crime is committed if one, with the necessary mens rea,

‘attempts’ to intimidate a witness or victim.”      Id.   “The trier of the facts,


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therefore, could find [Appellee] attempted to intimidate [her] accuser and

that [she] did so intending or, at least, having knowledge that [her] conduct

was likely to, impede, impair, or interfere with the administration of criminal

justice.” Id.

      In this case, Fuscellaro testified at the preliminary hearing that

Appellee and her sister attempted to run Fuscellaro over with a car. N.T.,

8/15/2016, at 8. Fuscellaro was planning on testifying against Appellee on

that matter.    On the day they were scheduled for court, Appellee and her

sister approached Fuscellaro in the hallway outside of the courtroom.

Appellee raised a clenched fist to Fuscellaro’s face and threatened “you

better drop the charges.” Id. at 9. Fuscellaro testified that she felt scared

and intimidated. Id. at 10. This was sufficient evidence to provide probable

cause that Appellee intimidated Fuscellaro to withhold testimony against

Appellee. Cf. Huggins, 836 A.2d at 866 (Commonwealth need only provide

sufficient evidence to show that there is probable cause that a defendant

committed an offense in order to meet its burden at a preliminary hearing.).

Moreover, even if Fuscellaro were not intimidated, the reasonable inference

from her testimony and the surrounding circumstances was that Appellee

intended to intimidate Fuscellaro.

      The municipal court and the trial court mistakenly made credibility

determinations when determining if the Commonwealth established a prima

facie case of witness intimidation.    It is well-settled that such credibility


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determinations cannot be made when deciding if the Commonwealth

established a prima facie case. See Commonwealth v. Mitchell, 152 A.3d

355, 359 n.1 (Pa. Super. 2016), appeal denied, 2017 WL 2362575 (Pa. May

31, 2017) (collecting cases).

      In its Rule 1925(a) opinion, the trial court mistakenly stated that only

“threats of violence, shooting, kidnapping, inflicting serious bodily injury,

and killing the victim or witness,” violate section 4952. Trial Court Opinion,

12/23/2016, at 6. The threat of extreme violence is not necessary to prove

witness intimidation. “[I]ntimidation may be accomplished with no words at

all, for a mere look or posture can bully, threaten, coerce, frighten, or

intimidate beyond question.” Commonwealth v. Doughty, 126 A.3d 951,

957 (Pa. 2015). Even an offer of a pecuniary benefit may constitute witness

intimidation. See id. As our Supreme Court emphasized, it is for the fact-

finder to weigh the totality of the circumstances. See id. In other words, it

is not a task for the municipal court at a preliminary hearing. In this case,

the Commonwealth provided sufficient evidence to establish a prima facie

case that Appellee intimidated (or at a minimum attempted to intimidate)

Fuscellaro by threatening physical violence. Accordingly, the Commonwealth

established a prima facie case that Appellee violated section 4952(a)(3) and




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the trial court erred by denying the Commonwealth’s motion to refile that

charge.5

       Order reversed. Case remanded. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/1/2017




____________________________________________


5
    Although the docket states Appellee was charged with violating 18
Pa.C.S.A. § 4952(a)(1), the criminal complaint charged Appellee generally
under section 4952(a).       See Criminal Complaint, 7/26/2016, at 1.
Therefore, the foregoing analysis examines whether Appellee violated any
portion of section 4952, specifically section 4952(a)(3).             Cf.
Commonwealth v. Berry, 2017 WL 2927441, *3 (Pa. Super. July 10,
2017) (the charging document, not the docket, controls what statute a
defendant is charged with violating).



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