J-A29008-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                       Appellant               :
                                               :
                                               :
                v.                             :
                                               :
                                               :
    DANA PEZZETTI-FUNK                         :   No. 3368 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-0021612-2016


BEFORE:      LAZARUS, J., PLATT*, J., and STRASSBURGER*, J.

MEMORANDUM BY LAZARUS, J.:                           FILED FEBRUARY 02, 2018

        The Commonwealth of Pennsylvania appeals from the order, entered in

the Court of Common Pleas of Philadelphia County, affirming the dismissal of

witness intimidation1 charges against Dana Pezzetti-Funk and denying its

request to refile the charges. After careful review, we reverse and remand for

further proceedings.

        On June 25, 2016, Gina Fuscellaro was walking near the area of 2009

South Broad Street, Philadelphia, when she encountered Dana Pezzetti-Funk.

Fuscellaro’s current boyfriend is the father of Pezzetti-Funk’s minor child, and

Fuscellaro previously complained to police that Pezzetti-Funk had assaulted

her. The Commonwealth subsequently filed a simple-assault2 charge against

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1   18 Pa.C.S.A. § 4952.

2   18 Pa.C.S.A. § 2701.
____________________________________
* Retired Senior Judge assigned to the Superior Court.
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Pezzetti-Funk. Pezzetti-Funk’s trial for the assault charge was scheduled for

June 27, 2016. Fuscellaro was set to testify against Pezzetti-Funk at her trial,

and when she encountered Pezzetti-Funk near 2009 South Broad Street,

Pezzetti-Funk allegedly said, “Hello bitch. Are you going to court on Monday?

I hope that you don’t go to court on Monday.”        N.T. Preliminary Hearing,

8/15/16, at 6. Following Pezzetti-Funk’s comments, the two women parted

ways.

        On June 27, 2016, Fuscellaro encountered Pezzetti-Funk in the hallway

of the Criminal Justice Center.    Pezzetti-Funk’s sister, Stephanie Pezzetti-

Funk, clenched her fist and said, “You better drop the charges.” Id. at 9.

Pezzetti-Funk then called Fuscellaro “a fat worthless c***,” adding, “You

better not show up to court” and “you better drop the charge.”        Id. at 9.

Pezzetti-Funk’s statements to Fuscellaro made her feel “intimidated” and

“scared.” Id. at 7-10. Sometime later, Fuscellaro reported the June 25th and

June 27th encounters with Pezzetti-Funk to the police, and Pezzetti-Funk was

subsequently charged with witness intimidation.

        On August 15, 2016, the trial court dismissed the charges of witness

intimidation for both Pezzetti-Funk and her sister based on a lack of evidence.

On October 5, 2016, the trial court denied the refilling of charges.         On

November 7, 2016, the Commonwealth filed a timely notice of appeal. Both

the Commonwealth and the trial court have complied with Pa.R.A.P. 1925. On

appeal, the Commonwealth raises the following issue: “Did the lower court

err in denying the refiling of charges against defendant on the basis of

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insufficient evidence for a prima facie case, where the Commonwealth

established that defendant threatened the victim in an effort to prevent the

victim from testifying against her?” Brief of Appellant, at 4.

      The purpose of a preliminary hearing is to determine whether the

Commonwealth has made out a prima facie case for the offenses charged.

Commonwealth v. Jackson, 894 A.2d 1254, 1257 (Pa. Super. 2004)

(citation omitted). “A prima facie case consists of evidence, read in the light

most favorable to the Commonwealth, that sufficiently establishes both the

commission of a crime and that the accused is probably the perpetrator of that

crime.”   Commonwealth v. Black, 108 A.3d 70, 77 (Pa. Super. 2015)

(citation omitted). Proof beyond a reasonable doubt is not required. Id.

      We have held that in determining the presence or absence of a
      prima facie case, inferences reasonably drawn from the evidence
      of record that would support a verdict of guilty are to be given
      effect, but suspicion and conjecture are not evidence and are
      unacceptable as such. Further, since a trial court must view the
      evidence in the light most favorable to the Commonwealth when
      ruling upon a petition for writ of habeas corpus, it is inappropriate
      for the trial court to make credibility determinations in deciding
      whether the Commonwealth established a prima facie case.

Id.

      “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, 513 (Pa. 2005) (citations omitted). “[T]he trial court

is afforded no discretion in ascertaining whether, as a matter of law and in



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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.” Id. at 513.

Therefore, we are not bound by the legal determinations of the trial court.

Commonwealth v. Dantzler, 135 A.3d 1109, 1112 (Pa. Super. 2016).

      Instantly, the trial court denied the Commonwealth’s motion to refile

the previously dismissed charges because it was determined that there was

insufficient evidence to sustain a charge of witness intimidation. Trial Court

Opinion, 12/23/16, at 2.     The Commonwealth argues that it established

Pezzetti-Funk threatened the victim in an effort to prevent her from testifying,

and thus, the evidence was sufficient to demonstrate a prima facie case for

witness intimidation. We agree.

      18 Pa.C.S.A. § 4952, the offense of intimidation of witness, provides as

follows:

      §4952. Intimidation of witnesses or victims

            (a) Offense defined.-- A person commits an offense if, with
            the intent to or with the knowledge that his conduct will
            obstruct, impede, impair, prevent or interfere with the
            administration of criminal justice, he intimidates or attempts
            to intimidate any witness or victim to:

                  (1) Refrain from informing or reporting to any
                  law enforcement officer, prosecuting official or
                  judge concerning any information, document or
                  thing relating to the commission of a crime.

                  (2) Give any false or misleading information or
                  testimony relating to the commission of any
                  crime to any law enforcement officer,
                  prosecuting official or judge.


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                   (3) Withhold any testimony, information,
                   document or thing relating to the commission of
                   a crime from any law enforcement officer,
                   prosecuting official or judge.

                   (4) Give any false or misleading information or
                   testimony or refrain from giving any testimony,
                   information, document or thing, relating to the
                   commission of a crime, to an attorney
                   representing a criminal defendant.

                   (5) Elude, evade or ignore any request to
                   appear or legal process summoning him to
                   appear to testify or supply evidence.

                   (6) Absent himself from any proceeding or
                   investigation to which he has been legally
                   summoned.

18. Pa.C.S.A. § 4952.    Actual intimidation of a witness is not an essential

element of the crime of intimidating a witness; the crime is committed if one,

with the necessary mens rea, attempts to intimidate a witness or victim.

Commonwealth v. Collington, 615 A.2d 769, 770 (Pa. Super. 1992).

Further, the Commonwealth is not required to prove mens rea by direct

evidence; the Commonwealth may rely on circumstantial evidence. Id.

        The Commonwealth presented evicence at the preliminary hearing that

Pezzetti-Funk, acting in concert with her sister, threatened Fuscellaro to

prevent her from testifying. Stephanie Pezzetti-Funk held up a clenched fist,

called Fuscellaro a derogatory term, and said, “You better not show up to

court” and “you better drop the charge.” N.T. Preliminary Hearing, 8/15/16,

at 9.    Fuscellaro stated that Pezzetti-Funk and her sister made her feel




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“intimidated” and “scared.”3         Id. at 10.   The evidence presented by the

Commonwealth was all that was necessary to establish a prima facie case.

See Karetny, supra (prima facie case exists when Commonwealth produces

evidence of each of material elements of crime charged and establishes

probable cause to warrant belief that accused committed offense). See

Commonwealth v. Hilliard, 172 A.3d 5 (Pa. Super. 2017) (at preliminary

hearing, evidence of each of material elements of crime charged must be

considered in light most favorable to Commonwealth so that inferences that

would support guilty verdict are given effect).

       In order to establish a prima facie case, “the evidence need only be such

that, if presented at trial and accepted as true, the judge would be warranted

in permitting the case to be decided by the jury.” Karetny, 880 A.2d at 514.4
____________________________________________


3 As we noted, the Commonwealth is not required to prove that a witness was
actually intimidated. Collington, supra. However, the trial court, in
dismissing the instant charges, placed special emphasis on Fuscellaro’s
reaction to Pazzetti-Funk’s threats. N.T. Preliminary Hearing, 8/15/16, at 19
(“If she was really scared . . . All [Fuscellaro] had to do was step into the
courtroom. . . . All [Fuscellaro] had to do was put her head in the courtroom
and say I was just threatened.”). Fuscellaro’s reaction to Pezzetti-Funk’s
threats, particularly at the preliminary hearing stage, is immaterial to show a
prima facie case of witness intimidation.

4 It is immaterial for our purposes that Fuscellaro is romantically involved with
the father of Pazzetti-Funk’s minor child and that Pazzetti-Funk made threats
directed at Fuscellaro in the Criminal Justice Center hallway. See N.T.
Preliminary Hearing, 8/15/16, at 17 (THE COURT: “The court recognizes this
for what it is. You call that baby mama drama. . . . The court does not see
it as a felony. . . . I can read between the lines. I can see exactly what
happens here. The underlining of this is relationships.”) (emphasis added).
Such variables do not necessarily refute the Commonwealth’s contention that



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In light of this standard, we conclude that the lower court erred in denying the

Commonwealth’s motion to refile the charges against Pezzetti-Funk, where

Fuscellaro felt both intimidated and scared as a result of Pezzetti-Funk’s

actions and comments. Accordingly, we vacate the lower court’s order and

remand for further proceedings.

     Order reversed. Case remanded. Jurisdiction relinquished.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/2/18




____________________________________________


Pazzetti-Funk’s threats were accompanied by the necessary mens rea to
sustain a conviction. Karenty, supra.

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