J-S45010-14


                                  2014 PA Super 175

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

SINCERITY JOHNSON,

                            Appellant                  No. 474 EDA 2013


         Appeal from the Judgment of Sentence September 18, 2012
            In the Court of Common Pleas of Philadelphia County
            Criminal Division at No(s): CP-51-CR-0004422-2012


BEFORE: BOWES, WECHT, and FITZGERALD,* JJ.

OPINION BY BOWES, J.:                                 FILED AUGUST 20, 2014

       Sincerity Johnson appeals from her September 18, 2012 judgment of

concurrent sentences of one year of probation, which were imposed after

she was convicted of hindering apprehension or prosecution and obstructing

administration of law.         She challenges the sufficiency of the evidence

supporting her convictions. We reverse in part and affirm in part.
                                                                          1
                                                                              On

September 15, 2011, at approximately 12:00 noon, twenty FBI agents and

United States Marshals went to an apartment located in a building at 633
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
  Appellant appealed to the Philadelphia Court of Common Pleas following
her conviction at a bench trial in the Philadelphia Municipal Court. Our
summary of the facts is gleaned from the transcript of the trial de novo.
J-S45010-14


West Rittenhouse Street, Philadelphia, to execute an arrest warrant for

Rodney Thompson. Appellant shared the apartment with her mother. The

law enforcement officers knocked, announced that they were police officers,

and stated that they had a warrant. Initially, there was no response. After

knocking a second time, Appellant inquired who they were.       Upon being

informed again that they were police officers with a warrant, Appellant told

them to wait while she dressed.      After five minutes, the officers heard

someone running within the apartment, and they attempted to force open

the door, but stopped when Appellant did so. When questioned, Appellant

denied that there was anyone else in the apartment; after being shown a

photograph of Thompson, she denied knowing him.

      The law enforcement officers noticed that a window was open and that

the subject of the warrant was running on the second floor roof of the

apartment.     Thompson was apprehended behind the apartment building.

Appellant was taken into custody and charged with hindering apprehension,

a third-degree felony, and obstructing administration of law, a misdemeanor.

      The felony hindering apprehension charge subsequently was reduced

to a misdemeanor, and the case was transferred to Municipal Court for

disposition.   Appellant was found guilty by the court and sentenced to six

months supervised probation. Appellant appealed to the court of common

pleas for a de novo trial.   The Commonwealth filed a criminal information




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crime    or   violation   of    the   terms    of    probation,    parole,   intermediate



§ 5105(a)(1). Criminal Information at 1.2

        Appellant waived her right to a jury trial and proceeded non-jury. She



unlocked the door. N.T., 9/18/12, at 28. She maintained that the officers

did not tell her that they had an arrest warrant or identify the subject of the

document. Appellant denied that she was attempting to delay police so that

Thompson could escape, and portrayed him as an uninvited guest.                      She

ultimately    conceded,        however,   that      she    and   Thompson     had   dated

intermittently but denied that she was pregnant with his child at the time.

The court convicted Appellant of both offenses and sentenced her to twelve

months reporting probation on the obstruction charge and a concurrent term

of twelve months reporting probation on the hindering apprehension charge.

        On September 27, 2012, Appellant filed a post-sentence motion for

judgment of acquittal and/or a new trial.                 She challenged, inter alia, the

legal sufficiency of her convictions. The motion was denied by operation of

law on January 28, 2013, and Appellant timely filed the within appeal.



____________________________________________


2

had been charged or was liable to be charged against the person aided
                                                   Id.



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statement of errors complained of on appeal.

        The trial court issued its Rule 1925(a) opinion in which it described




                                                Trial Court Opinion, 11/26/13,

at 12-



calculated to hinder the apprehension of the fugitive who was concealed in

Appe

false   statements   to   police,   but because, under    the   totality   of the



entry of law enforcement into her apartment, thereby providing time for the

person for whom the arrest warrant was issued to escape from the

                 Id. at 2. For purposes of the obstruction charge, the locked



                                                         Id. at 16.

        Appellant presents two issues for our review:

        1. Was not the evidence insufficient to sustain the conviction of
           hindering apprehension or prosecution in that the
           Commonwealth failed to present evidence relating to the
           alleged warrant, and therefore it did not prove an element of
           the offense because it failed to demonstrate that the person
           they were seeking was wanted for a crime or violation of
           probation or parole, as required by statute 18 Pa.C.S. §
           5105?

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      2. Was not the evidence insufficient to sustain the conviction of

         momentary need to get dressed before opening the door for
         police and then providing false answers in response to
         questions by law enforcement officers was not force, violence,
         or physical interference or obstacle, as required by statute 18
         Pa.C.S. § 5101?



      In reviewing a challenge to the sufficiency of the evidence, we apply

the following standard.

      There is sufficient evidence to sustain a conviction when the
      evidence admitted at trial, and all reasonable inferences drawn
      therefrom, viewed in the light most favorable to the
      Commonwealth as verdict-winner, are sufficient to enable the
      fact-finder to conclude that the Commonwealth established all of
      the elements of the offense beyond a reasonable doubt.
      Commonwealth v. Markman, 591 Pa. 249, 916 A.2d 586, 597
      (Pa. 2007). The Commonwealth may sustain its burden "by
      means of wholly circumstantial evidence." Id. at 598. Further,
      we note that the entire trial record is evaluated and all evidence
      received against the defendant is considered, being cognizant
      that the trier of fact is free to believe all, part, or none of the
      evidence. Id.

Commonwealth v. Morales, 2014 Pa. LEXIS 1064 (Pa. 2014).

      Appellant claims that her conviction for hindering apprehension or

prosecution cannot stand because the Commonwealth did not present any




renders her conviction infirm pursuant to 18 Pa.C.S. § 5105(a)(1).          She

posits that it is just as likely that the warrant was one issued to a material


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witness for a federal grand jury, which would not satisfy the requirements of

§ 5105.3

       The Commonwealth counters that evidence of the underlying crime

prompting official action is not required to sustain the conviction, and that

Appellant fails to cite any authority articulating such a requirement.



threatened to kill her




is not required to disprove potential defense theories in its case-in-chief, i.e.,



an affirmative defense negating a specific element of the crime had been

                Id. (citing Commonwealth v. Weis, 611 A.2d 1218, 1225

(Pa.Super. 1992)).

       The law is well settled that penal statutes must be strictly construed in

favor of the accused.         Commonwealth v. Cunningham, 375 A.2d 66

(Pa.Super. 1977). The offense described in § 5105, hindering apprehension

or prosecution provides:

       (a) Offense defined. --A person commits an offense if, with
       intent to hinder the apprehension, prosecution, conviction
____________________________________________


3

                               Simon v. City of New York, 727 F.3d 167, 172
(2d Cir. 2013).



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       or punishment of another for crime or violation of the
       terms of probation, parole, intermediate punishment or
       Accelerated Rehabilitative Disposition, he:

              (1) harbors or conceals the other;

              (2) provides or aids in providing a weapon,
              transportation, disguise or other means of avoiding
              apprehension or effecting escape;

              (3) conceals or destroys evidence of the crime, or
              tampers with a witness, informant, document or
              other source of information, regardless of its
              admissibility in evidence;

              (4) warns the other of impending discovery or
              apprehension, except that this paragraph does not
              apply to a warning given in connection with an effort
              to bring another into compliance with law; or

              (5) provides false information to a law enforcement
              officer.

       (b) Grading. --The offense is a felony of the third degree if the
       conduct which the actor knows has been charged or is liable to
       be charged against the person aided would constitute a felony of
       the first or second degree. Otherwise it is a misdemeanor of the
       second degree.

18 Pa.C.S. § 51054 (emphasis supplied).

____________________________________________


4
    The comments to Model Penal Code § 242.3, which served as the
prototype for 18 Pa.C.S. § 5105, explain that the drafters intended to


                          Commonwealth v. Lore, 487 A.2d 841, 854
(Pa.Super. 1984). See also Official Comment to 18 Pa.C.S. § 5105. Thus,
they shifted the focus of culpability to the person aiding the other, and to his
or her state of mind. Lore, supra at 854. Whether the offense is graded as
a felony or misdemeanor de
crime. In order to be charged with the felony, the aider need only know that
(Footnote Continued Next Page)


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        While there is case law interpreting § 5105, the specific argument

advanced by Appellant herein has seldom been advanced. A similar position

was articulated by the defendant in Commonwealth v. Patterson, 390

A.2d 784 (Pa.Super. 1978). Therein, defendant was convicted of hindering

apprehension or prosecution based on his volunteering of false information

to po

eavesdrop on interviews.5 This Court agreed with the defendant that, even

if the evidence was sufficient to show that he volunteered false information,

there was insufficient evidence that

prosecution, conviction or punishment of another for crime,

eavesdropping was not criminal in nature. Id. at 787 (emphasis original).

        Patterson suggests that evidence that the other person committed a

crime or was wanted in connected with a crime is an element of the offense

that must be proved beyond a reasonable doubt. We find additional support

                                                                - HINDERING


                       _______________________
(Footnote Continued)

                                                  See Model Penal Code § 242.3
comment 6 (1980).
5
      The predecessor to the current statute, paragraph (5) prohibited
volunteering false information to law enforcement.              We held in
Commonwealth v. Gettemy, 591 A.2d 320, 323 (Pa.Super. 1991), that
giving false and misleading answers to police inquiries was not proscribed by
that language. The provision was intended to reach those who took the
initiative in misleading law enforcement.




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APPREHENSION OR PROSECUTION                    MISDEMEANOR.   The suggested jury

instruction provides as follows:

       1. The defendant has been charged with the misdemeanor
       offense of hindering [apprehension] [prosecution] [other
       offense]. To find the defendant guilty of this offense, you must
       find that each of the following two elements has been proven
       beyond a reasonable doubt:

       First, that the defendant [harbored or concealed [item]]
       [provided or aided in providing [a weapon] [transportation]
       [disguise] [means of avoiding apprehension or effecting escape]
       [other provision]] [concealed or destroyed evidence of the crime]
       [tampered with a [witness] [informant] [document] [source of
       information] [item]] [warned [name of offender] of impending
       discovery or apprehension] [volunteered false information to a
       law enforcement officer] [action];

       Second, that the defendant did so with intent [or
       conscious purpose] to hinder the [apprehension]
       [prosecution] [conviction] [punishment] of [name of
       offender] for the crime.

Pa. SSJI (Crim.) § 15.5105B. (emphasis supplied).

       We note further that where a person is charged with the felony offense

of hindering apprehension, there is a third element that must be proven.

The Commonwealth must establish that the actor knew that the conduct

charged against the aided person or which was liable to be charged against

the aided person, would constitute a felony of the first or second degree.

See Pa.SSJI (Crim.) § 15.5105A.6 Thus, the nature of the offense charged

____________________________________________


6
   The Pa. Suggested Standard Jury Instruction for the felony hindering
apprehension or prosecution charge recites that the offense contains three
elements, each of which has to be proven beyond a reasonable doubt:
(Footnote Continued Next Page)


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                       _______________________
(Footnote Continued)

      First, that the defendant [harbored or concealed [item]]
      [provided or aided in providing [a weapon] [transportation]
      [disguise] [means of avoiding apprehension or effecting escape]
      [other provision]] [concealed or destroyed evidence of the
      crime] [tampered with a [witness] [informant] [document]
      [source of information] [other item]] [warned [name of
      offender] of impending discovery or apprehension] [provided
      false information to a law enforcement officer] [action];

      Second, that the defendant did so with intent to hinder the
      [apprehension] [prosecution] [conviction] [punishment] of
      [name of offender] for the crime; [or]. for violating the terms of
      probation, parole, intermediate punishment, or accelerated
      rehabilitative disposition; and [Where applicable:]

      Third, that the defendant knew [name of offender] [had been
      charged] [or] [was liable to be charged] with conduct that would
      constitute a felony of the first or second degree. It is not
      necessary that the defendant knew the conduct would constitute
      a felony. It is sufficient if the defendant knew that [name of
      offender] [had been charged] [or] [was liable to be charged]
      with certain conduct as long as such conduct, regardless of
      whether the defendant knew it or not, would actually amount to
      a felony of the first or second degree. I instruct you that the
      following conduct would amount to a felony of the [first]
      [second] degree.

      [2. As I told you, you cannot find the defendant guilty unless you
      find that [he] [she] had the intent to hinder the [apprehension]
      [prosecution] [conviction] [punishment] of [name of offender].
      for the crime; [or] for violating the terms of probation, parole,
      intermediate     punishment,     or    accelerated   rehabilitative
      disposition.

      It is not necessary that an intent to hinder was [his] [her] sole
      purpose. [He] [She] may have had other purposes or motives.
      However, to be guilty, [he] [she] must have acted with a
      conscious purpose to hinder the authorities.]

      [3. You will note that there is no requirement that [name of
      offender] had actually committed any crime or that the
(Footnote Continued Next Page)


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or liable to be charged against the aided person is determinative of the

grading of the offense and the proof required.       Hence, the legislature

demonstrated an intent to differentiate the offenses based upon the

underlying crime.




remaining offenses against public administration are collected in Article 242

under the rubric of obstructing governmental operations. The specific crimes

defined in Article 242 are not interdependent, but each involves conduct by

which the actor attempts some interference with the administration of



Explanatory Note.


                       _______________________
(Footnote Continued)

      defendant believed that [name of offender] had committed any
      crime in order to find the defendant guilty. The essence of the
      offense with which the defendant is charged is interference with
      the processes of justice. A person who aids another in an effort
      to hinder the [police] [authorities] can interfere with the
      processes of justice regardless of whether he or she believes the
      other person is guilty or whether the other person is actually
      guilty of any crime.]

      4. If you are satisfied that the three elements of the felony
      offense of hindering [apprehension] [prosecution] [action] have
      been proven beyond a reasonable doubt, you should find the
      defendant guilty. Otherwise, you must find the defendant not
      guilty of this crime.

Pa.SSJI (Crim.) § 15.5105A.



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     The New Hampshire hindering apprehension or prosecution statute is

also drawn from section 242.3 of the Model Penal Code (MPC).         State v.

Brown, 930 A.2d 410, 413-

explained how the offense

                           -law category of accessory after the fact but
     breaks decisively with the traditional concept that the
     accessory's liability derives from that of his principal. Thus,
     under the Model Code provision [242.3], one who harbors a
     murderer is not made a party to the original homicide but is
     convicted, as he should be, for an independent offense of
     obstruction of justice." Model Penal Code, Introductory Note for
     Article 242, at 199 (1980). "[This] approach dispenses with
     many of the common-law elements[,] [including] knowledge of
     the identity of the perpetrator, knowledge of the underlying
     felony, and . . . even the requirement that a felony actually have
     been committed . . . ." Commonwealth v. Perez, 437 Mass.
     186, 770 N.E.2d 428, 433 (Mass. 2002) (parentheses omitted)
     citing Model Penal Code & Commentaries § 242.3, comment 3,
     at 229, 230. The approach "focuses instead upon whether the
     defendant purposely hindered law enforcement." Perez, 770
     N.E.2d at 433.

Id. at 413-                                                      i.e., that the

State needed to prove beyond a reasonable doubt          that the defendant

harbored Mark Soto in his residence while members of the Nashua Police

Department were searching for Mr. Soto in connection with a robbery, [and]

that the defendant acted with a purpose to hinder the apprehension of Mark

Soto for commission of a crime

     Other states that have adopted the MPC version of the hindering



offense. In State v. Mootispaw, 492 N.E.2d 169, 171 (Ohio App. 1985),


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the defendant was charged with hindering prosecution for writing an

anonymous false letter to police in a deliberate attempt to convince the

authorities to terminate the prosecution of her husband. At the conclusion

                                                            eging there was

no proof of the commission of a crime by her husband, the person whose

prosecution she was charged with hindering.     The State offered evidence

                                                         i.e., that a bottle of

wine had been stolen and that husband was the thief.               The court



                                                                 Id. at 171.

However, a conviction was not required, as that would emasculate the intent

of the statute. Evidence that the other person in that case was charged with

a crime and that the defendant hindered his apprehension, prosecution or

conviction was sufficient.

      In King v. State, 76 S.W.3d 659, 662 (Tex. App. 2002), the hindering

apprehension statute subjected one to criminal liability for conduct intended



an offense.

(emphasis in original). The State introduced the parole violation warrant for

the other person, which recited therein that he had been convicted of a

felony offense for which he was sentenced to the Texas Department of

Criminal Justice. The defendant argued that this warrant was insufficient to


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was not defined as an offense.7

warrant for a parole violation is merely a revocation of the parolee's

administrative release.       In other words, when a parolee is arrested for a

parole violation, he is apprehended for the same offense for which he had

                                                   Id. That court concluded that

although the specific offense was an element of the crime charged, and it

was not specified in the warrant, the evidence was sufficient to show that



and the jury could reasonably find that the essential elements of hindering

apprehension were established.

       Instantly, Detective McCusker testified that he was assigned to the FBI

Fugitive Task Force, and that he and approximately twenty-four other law



                                                                           ounced

                                                     Id. at 9. Initially, there was

no response.      They knocked again, and a female voice inquired who they

                                                                               Id.

                                                                   Id.   Detective

____________________________________________


7
    In contrast, the Pennsylvania hindering apprehension statute was
amended in 1996 to expressly provide that it is a violation to hinder
apprehension of another who is a parole violator.



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                                                Id. They started to force open

the door, again identified themselves as police officers with a warrant, and

at that point, Appellant opened the door.           The detective asked her if

anybody else was in the apartment and she said no.         Id. When shown a



him.     The detective told her they had a federal warrant for the man.

Detective McCusker and the other officers proceeded into the apartment.

Through an open window, the detective observed Rodney Thompson running

on the second floor roof of the apartment and he notified other officers who

apprehended him.

        The Commonwealth offered no evidence as to why Thompson was

wanted or whether it was in connection with a crime, or violation of the

terms    of   probation,   parole,   intermediate   punishment   or   Accelerated

Rehabilitative Disposition. It did not place the warrant into evidence and no



although the Commonwealth offered evidence from which one might infer

that Appellant intended to hinder the apprehension of Thompson, it did not

offer proof that Th

violation of the terms of probation, parole, intermediate punishment or



that the Commonwealth offered evidence that police officers apprised


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Appellant that they had a federal warrant, even an arrest warrant, was not

enough   to   satisfy   this   element.      Nor    do   we   find    persuasive   the



constituted circumstantial evidence that he was an outstanding felon.               In

short, the Commonwealth failed to prove an element of the offense: that

Thompson was being sought for commission of a crime or any of the



     Appellant    contends      that   her      conviction    for    obstructing   the

administration of law or other governmental function, in violation of 18

Pa.C.S. § 5101, is also infirm.        She points to the fact that she never

physically blocked the officers from doing their duty or even verbally refused

to admit them. She maintains that her original hesitancy in responding can

be attributed to suspicion that it was not really the police at her door. Any

further delay was due to her desire to change into more modest attire before

answering the door.        Finally, any false information provided to police



administration of law by force, violence or physical interference or obstacle

                                                at 14.



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


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in opening the door constituted physical interference or an obstacle to

execution of the arrest warrant.

     Evidence that one has physically impeded a law enforcement officer

from administering the law has been held sufficient to sustain a conviction

under § 5101.     See Commonwealth v. Conception, 657 A.2d 1298

(Pa.Super. 1995) (appellant blocked door of her apartment to prevent the

police from entering to apprehend fugitive who was hiding in the shower

stall); Commonwealth v. Reed, 851 A.2d 958, 963-64 (Pa.Super. 2004)

(defendant attempted to obstruct the pathway of a uniformed police officer

in the common area of an apartment house after the officer had exclaimed

to the defendant: "Just let me get by and do my job."); Commonwealth v.

Love, 896 A.2d 1276, 1284-1285 (Pa.Super. 2006) (defendant, in an

attempt to interfere with the law enforcement officer who was escorting his

wife from the courtr

attempted to push him).

     The   interference   need     not   involve   physical    contact   with   the

government official as he performs his duties.                Commonwealth v.

Scarpone, 634 A.2d 1109, 1113 (Pa. 1993). See also Commonwealth v.

Mastrangelo, 414 A.2d 54 (Pa. 1980), (upholding a § 5101 conviction




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receiving a parking ticket, which then deterred the officer from subsequently

performing the job).

       In Commonwealth v. Trolene, 397 A.2d 1200 (Pa.Super. 1979), we



chambers of a trial judge and making statements to the judge that were

intended to influence his decision in a pending criminal matter involving a

                                                                         the

Model Penal Code section 242.1, we relied on the comment to that section

                                                                            r

                                                  Id. at 1202.

       Most recently, in Commonwealth v. Snyder, 60 A.3d 165 (Pa.Super.

2013), we again examined the physical interference requirement of the

statute. Snyder went to the home of another and informed that person that

the police intended to execute a search warrant on his residence. Snyder

argued that this conduct could not be classified as physical interference or



violence, physically interfere with or obstruct the execution of the search

                                                                       Id. at

176.

       In Snyder, this Court preliminarily noted that the statute did not

                                      und Trolene, supra, particularly apt

and relied upon it in holding that evidence that the defendant actively


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warrants was sufficient to support the conviction for obstructing the

admini                                                 Id.

       Conduct intended to obstruct police from ensuring that public streets

were open for safe vehicle and pedestrian traffic established a prima facie

case of obstruction of administration of justice pursuant to 18 Pa.C.S.

§ 5101 in Commonwealth v. Ripley, 833 A.2d 155 (Pa.Super. 2003). In

that case, protesters physically linked themselves together with lock-boxes

covered in tar and chicken wire.          This Court concluded that since the sole

purpose was to impede police efforts to disperse them, the Commonwealth

stated a prima facie case for conspiracy to obstruct administration of justice.

       The trial court herein concluded that Appellant intentionally delayed in

opening the locked door to an announced police presence in order to permit

Thompson to escape apprehension.               This, according to the fact-finder,

constituted physical interference or an obstacle to execution of the warrant.

We agree, and find the evidence sufficient to sustain the conviction.

       Judgment of sentence reversed in part and affirmed in part.8

Jurisdiction relinquished.

____________________________________________


8
   Since the sentence imposed on the hindering apprehension charge runs
concurrently to an identical sentence imposed on the obstruction charge, our
disposition does not affect the overall sentencing scheme and no remand is
necessary for a new sentencing. Commonwealth v. Rivera, 2014 PA
Super 140 (Pa.Super. 2014).



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/20/2014




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