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                                 2019 PA Super 176



COMMONWEALTH OF PENNSYLVANIA                         IN THE SUPERIOR COURT OF
                                                           PENNSYLVANIA
                            Appellant

                       v.

RICHARD HOLSTON

                            Appellee                     No. 223 EDA 2016


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

DISSENTING OPINION BY STABILE, J.:                         FILED MAY 31, 2019

      The Majority concludes the Commonwealth failed to establish a prima

facie case against Appellee for perjury or insurance fraud and waived its

claims of criminal conspiracy and obstruction of justice for failure to include

records    necessary    for   this   Court’s   review.   Because   I   believe   the

Commonwealth satisfied its burden of establishing a prima facie case on the

four enumerated charges and has not waived any claims, I respectfully

dissent.

      As this Court explained in Commonwealth v. Dantzler, 135 A.3d

1109 (Pa. 2016) (en banc), “[w]e review a decision to grant a pre-trial

petition for a writ of habeas corpus by examining the evidence and

reasonable inferences derived therefrom in a light most favorable to the
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Commonwealth.”        Id. at 1111 (citations omitted).      In Dantzler, we

recognized that our Supreme Court, in Commonwealth v. Karetny, 880

A.2d 505 (Pa. 2005), rejected this Court’s application of an abuse of

discretion standard on review of a pre-trial habeas matter when determining

whether the Commonwealth presented prima facie evidence of the crimes

charged.     Id. at 1112.    “[T]he Commonwealth’s prima facie case for a

charged crime is a question of law as to which an appellate court’s review is

plenary.” Id. (quoting Karetny, 880 A.2d at 513).

     In Commonwealth v. Ouch, 199 A.3d 918 (Pa. Super. 2018), this

Court observed:

     “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). As we have
     explained previously:

           The Commonwealth establishes a prima facie case when it
           produces evidences 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.




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       Commonwealth v. Marti, 779 A.2d 1177, 1180 (Pa. Super.
       2011) (internal citations and quotations omitted) (emphasis
       added). Moreover, “suspicion and conjecture are not evidence
       and are unacceptable as such.” Commonwealth v. Packard,
       767 A.2d 1068, 1071 (Pa. Super. 2001) (citations omitted).
       Proof beyond a reasonable doubt is not required. Black, 108
       A.3d at 70; see [Commonwealth v. McBride, 595 A.2d, 589,
       591 (Pa. 1991)] (noting that the prima facie hurdle is less
       demanding than the Commonwealth’s burden at trial of proving
       guilt beyond a reasonable doubt).

Id. at 923.

       The Majority concluded the trial court correctly dismissed the charges

against Appellee because the Commonwealth failed to establish a prima facie

case for any of the four charged crimes.1 As we recognized in Ouch,

       “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, 583 Pa. 514, 880 A.2d
       505, 513-14 (2005) (citations omitted). “[T]he 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.” 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).

Id.

       As reflected above, we are to examine the record to ascertain whether

the Commonwealth has established a prima facie case of the crimes
____________________________________________


1Although the Majority determined the claims relating to criminal conspiracy
and obstruction of justice were waived for lack of an adequate record, the
Majority suggested those claims would fail, even if not waived. See Majority
Op. at 21-26; 29-31.



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charged. In doing so we are to read the evidence in the light most favorable

to the Commonwealth’s case and give effect to inferences reasonably drawn

from the evidence of record. Again, at the preliminary hearing stage, the

Commonwealth is not required to prove the elements of the crimes beyond a

reasonable doubt but is required to present evidence of the existence of

each element of the crimes charged.

      With regard to perjury, the Majority provides the statutory definition of

the crime, recognizing a person is guilty of perjury “if, in any official

proceeding, he makes a false statement under oath . . . when the statement

is material and he does not believe it to be true.” Majority Op. at 9 (quoting

18 Pa.C.S.A. § 4902(a)). Further, a false statement is material “if it could

have affected the court or outcome of the proceeding” and “the test of the

materiality of a false statement is whether it can influence a fact-finder, not

whether it does.” Id. (quoting Commonwealth v. Lafferty, 419 A.2d 518,

521-22 (Pa. Super. 1980) (citations omitted)).

      As the Commonwealth contends, the basis of the perjury charge was

the false testimony, under oath, at the September 16, 2014 grand jury

hearing during which Appellee testified he could not provide documentation

related to the Risoldi window treatments because Summerdale Mills had

gone paperless and his computer hard drive and back-up system had failed.

Commonwealth Brief at 20.     Appellee claimed he conducted an exhaustive

search for documents relating to Risoldi window treatments, yet he produced


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only 68 pages of documents consisting of diagrams for window treatment

fabrication. Id.

      The recovery of more than 450 pages of documents during execution

of a search warrant three weeks later—including invoices, work orders,

estimates, shipping logs, payment logs, and installation logs—underscores

Appellee’s dishonesty, especially in light of the 189 pages of Risoldi

documents recovered from the office that had Appellee’s name on the door.

Id. at 20-21 (citing, inter alia, N.T., 8/19/15 at 15-53 and Receipt/Inventory

of Seized Property, 10/9/14).      Viewing the evidence in the light most

favorable to the Commonwealth, including reasonable inferences drawn from

that evidence, I find the evidence was sufficient to establish a prima facie

case of perjury relating to Appellee’s testimony to the grand jury about the

existence of Risoldi documents and the fact Summerdale Mills’ computers

were inoperable, matters material to the Risoldi insurance claim.

      With regard to the criminal conspiracy charge, the Majority concludes

the claim is waived for failure to include documents in the certified record.

Majority Op. at 19-21.   Regardless, the Majority indicates the claim would

“fail[] under generally applicable legal principles” even if the record were

complete. Id. at 21. I disagree.

      As the Commonwealth recognizes:

      The essence of a criminal conspiracy is a common
      understanding, no matter how it came into being, that a
      particular criminal objective be accomplished.    Therefore, a
      conviction for conspiracy requires proof of the existence of a

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       shared criminal intent. An explicit or formal agreement to
       commit crimes can seldom, if ever, be proved and it need not
       be, for proof of a criminal partnership is almost invariably
       extracted from the circumstances that attend its activities.
       Thus, a conspiracy may be inferred where it is demonstrated
       that the relation, conduct, or circumstances of the parties, and
       the overt acts of the co-conspirators sufficiently prove the
       formation of a criminal confederation.

       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.

Commonwealth v. Ruiz, 819 A.2d 92, 97 (Pa. Super. 2003) (citation

omitted).    The Commonwealth argues that the Risoldis’ investigator, Mark

Goldman,2 delivered a binder of documents to the Risoldis’ insurance carrier,

American International Group, Inc. (“AIG”), and to the Office of the Attorney

General after the Attorney General’s search warrant was executed at

Summerdale Mills. According to testimony from AIG’s adjuster, the binder

included documents relating to the Risoldis’ window treatments. While the

binder was not included in the certified record, there was testimony relating

to documents included in the binder, including various “invoices” ostensibly

from Summerdale Mills that listed dollar amounts of charges without any

description of services supporting the charges.        Importantly, several

reflected Summerdale Mills’ name without an “e” at the end of Summerdale.



____________________________________________


2 Goldman was named in the grand jury’s December 2014 presentment,
along with Appellee and the Risoldis. See Majority Op. at 3.



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These documents were different from the ones the adjuster previously

received. N.T., March 30, 2015 Preliminary Hearing Proceedings, at 1785.

      To put this matter in context, it is important to note that Claire Risoldi

claimed AIG was harassing Summerdale Mills.           In order that her own

reputation would not be impugned, Claire instructed the adjuster not to

contact Summerdale Mills directly, indicating she would obtain whatever AIG

might need from Summerdale Mills. Id. at 1766. The adjuster acceded to

Claire’s demand.   The testimony reflects that the documents in the binder

were provided by the Risoldis’ investigator not only to the adjuster but also

to Appellee’s counsel.    N.T., 10/15/15, at 22.       As the Commonwealth

appropriately suggests, and considering the evidence and reasonable

inferences in a light favorable to the Commonwealth, “it is reasonable to

infer that the Risoldis would not deliver altered documents purporting to be

Summerdale Mills receipts to the very individual who could have sounded

the alarm because he would have known they were altered and because he

claimed they did not exist.” Commonwealth Brief at 37. Moreover,

      [t]he fact that the altered documents appeared after a year of
      the Risoldis claiming they didn’t exist and after [Appellee]
      testified they didn’t exist but very shortly after the search
      warrant was executed at Summerdale Mills raises the reasonable
      inference that [Appellee] had told the Risoldis about the search
      and the items seized.

Id. at 38. Further, Appellee’s “lies to the grand jury dovetail perfectly with

Claire Risoldi’s lies to AIG. Both claimed that Summerdale Mills did not have

documentation to prove the window treatments had been replaced following

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any of the fires and/or the cost of replacement. The identical lies establish

the agreement to defraud AIG.” Id.

     Based on the testimony, even in absence of the binder containing

purportedly-doctored documents, I would not consider the Commonwealth’s

claim waived. Further, considering the evidence in the light favorable to the

Commonwealth,     including   reasonable   inferences,   I   would   find   the

Commonwealth established a prima facie case of conspiracy to defraud AIG.

     With regard to the charge of insurance fraud, the Majority concludes

there is no showing that Appellee possessed any intent to defraud AIG, even

considering Appellee’s statements regarding the existence of various

documents or his ability to provide those documents to the grand jury.

Majority Op. at 28.    The Majority suggests there was no evidence that

Appellee had any knowledge of the contents of the binder produced by the

Risoldis’ investigator (despite the fact the binder was also provided to

Appellee’s counsel). Id.

     As the Commonwealth argues, the evidence suggested that Appellee

purposely failed to produce subpoenaed documents and testified falsely

before the grand jury about his efforts to locate documents and the

existence of those records, about the failure of his computers, about

information included on work orders that included customer names, and

about Summerdale Mills’ practice of not keeping hard copies of sales orders.

Commonwealth Brief at 43-44. Appellee’s “failure to produce the documents


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pursuant to a legitimate subpoena and his subsequent lies under oath which

corroborate and further the Risoldis’ efforts to defraud AIG related to the

window treatments claim establish [Appellee’s] culpability as an accomplice

to the insurance fraud.” Id. at 44. Once again, I believe the Majority has

failed to view the evidence and reasonable inferences in the light favorable

to the Commonwealth when considering whether the Commonwealth has

established a prima facie case.     When properly viewed, I believe the

Commonwealth has carried its burden of establishing a prima facie case of

insurance fraud under 18 Pa.C.S.A. § 4117(a)(2) and Appellee’s culpability

as an accomplice under 18 Pa.C.S.A. § 306 in committing that crime.

     Finally, with respect to the obstruction of justice charge, the Majority

again finds waiver for failure to include “documents actually secured

pursuant to the subpoena.” Majority Op. at 29. While I do not dispute the

lack of a complete record, I do not believe the failure to include the

documents is fatal to the claim.       Once again, there was testimony

concerning the transactional documents recovered during execution of the

search warrant and there was testimony relating to the window treatment

fabrication diagrams voluntarily turned over by Appellee.     The testimony

revealed the nature of both categories of documents, thus enabling a

reviewing court to understand to dissimilarity between what was recovered

versus what was produced by Appellee.       While the Majority suggests a

review of the record fails to establish the Appellee had knowledge of the


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existence of documents beyond the fabrication diagrams he produced, that

conclusion clearly fails to view the evidence in a light favorable to the

Commonwealth and certainly fails to consider reasonable inferences drawn

from the testimony. I believe the evidence supports a prima facie case of

obstruction of justice under 18 Pa.C.S.A. § 5101 based on Appellee’s failure

to produce subpoenaed documents and his statements under oath regarding

the records at Summerdale Mills.

     Finding none of the Commonwealth’s claims waived and finding the

Commonwealth established a prima facie case of perjury, conspiracy,

insurance fraud and obstruction of justice, I conclude the trial court

committed reversible error of law by dismissing the charges against

Appellee. Therefore, I dissent.




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