J-A19008-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                           Appellee

                    v.

MICHAEL C. JOHNS,

                           Appellant                 No. 216 WDA 2014


      Appeal from the Judgment of Sentence Entered August 14, 2013
            In the Court of Common Pleas of Allegheny County
           Criminal Division at No(s): CP-02-CR-0010711-2012


BEFORE: BENDER, P.J.E., JENKINS, J., and MUSMANNO, J.

MEMORANDUM BY BENDER, P.J.E.:                      FILED AUGUST 28, 2015

      Appellant, Michael C. Johns, appeals from the judgment of sentence of

an aggregate term of 36-72 months’ incarceration, followed by 7 years’

probation, following his conviction for crimes including official oppression,

attempted insurance fraud, and drug-related offenses.        Herein, Appellant

claims the trial court erred when it denied his motion to sever official

oppression from the remaining charges.          He also asserts there was

insufficient evidence to convict him of official oppression.      Additionally,

Appellant challenges the sufficiency of the evidence supporting his drug-

trafficking convictions.      After careful review, we reverse Appellant’s

conviction for official oppression, vacate Appellant’s judgment of sentence,

and remand for a new trial(s) on all offenses except official oppression.
J-A19008-15



       The following summary of the facts presented at trial was set forth in

Appellant’s Brief:1

             [Appellant,] Former Pittsburgh Police Officer Michael C.
       Johns[,] fell in love with a heroin addicted woman, Ms. Regina
       Silla (Gina).      Gina supported her heroin habit through
       prostitution; Gina ran ads in a local newspaper, Backpage,
       promoting her services.      As police investigated the ads in
       Backpage, they discovered that payment for the ads came from
       [Appellant’s] debit card. Tracing the IP address used to place
       the ads revealed that the ads were posted from locations around
       the area of [Appellant’s] apartment. The ads listed contact
       information as either Jack C. Silla or “dborandi.” Police knew
       David Borandi as a person who periodically drove Gina to her
       escort appointments, or “erotic shows” as she called them. After
       [Appellant] discovered that Gina used his debit card, he
       cancelled the card.

             Regina Silla first became known to police in connection
       with this case during a traffic stop in the early morning of April
       24, 2011. William Oravetz drove a white Cadillac that police
       pulled over for suspicion of DUI, and Gina was his passenger.
       When officers noted that Oravetz did not have a valid driver’s
       license, they asked who rented the car, Oravetz told them that
       Gina’s friend Mike did. Silla had an Act 235 card2 issued to
       [Appellant] in her purse. Gina explained that [Appellant] was
       her boyfriend and a Pittsburgh policeman. The officer who
       performed the traffic stop took Gina and Oravetz to the police
       station and called [Appellant], asking him if he wanted to pursue
       theft charges against the pair. [Appellant] did not wish to press
       charges. The officer, William Meisel, noticed that the Cadillac
       had damage to its side consistent with recently being involved in
       an accident. The Commonwealth offered testimony at trial, over
____________________________________________


1
  The trial court did not provide a factual summary in its Pa.R.A.P. 1925(a)
opinion. However, Appellant’s Brief provides an accurate summation of the
evidence offered at trial, and the Commonwealth has not taken any
exception to Appellant’s summary. See Commonwealth’s Brief, at 6 (“The
facts and circumstances underlying the conviction have been set forth in the
Brief for Appellant ….”).



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J-A19008-15


     objection, that the damage to the car seemed to be from hitting
     a tree or a pole, and not from being sideswiped while parked on
     the street.
                                   ___
        2
          This card is issued to people who are eligible to perform
        private security work.
                                    ___

     Officer Meisel also testified that when police searched Oravetz
     incident to his arrest,3 he had a shoestring in his pocket with a
     round key ring attached. In the key ring was a small piece of
     paper inscribed with the name “Alivia Kail.”4 According to Officer
     Meisel, Alivia Kail had been on the news at the time of the traffic
     stop because she was reported missing and had been
     presumably murdered. No connection was ever made between
     the Alivia Kail case and Oravetz, Gina, or [Appellant].
                                     ___
        3
          Police charged Oravetz with promoting prostitution,
        conspiracy, unauthorized use of a vehicle, driving with a
        suspended license, and traffic offenses. No information
        was provided at trial regarding the outcome of those
        charges.
        4
          The transcript in this case misspells this name as “Olivia
        Kale[.”] A search of news reports of the period indicates
        the proper spelling of Ms. Kail’s name.
                                     ___

           Despite the lack of connection to the disappearance,
     Detective Daniel Mayer, the lead investigator on the Alivia Kail
     case, interviewed [Appellant] after the key ring’s discovery.
     During this interview, [Appellant] discussed his relationship with
     Gina and admitted to Mayer that he would often rent cars and
     Gina would take them to use in her erotic show business.
     [Appellant] also told Detective Mayer that Gina would take his ID
     card with her when he worked. This sparked an investigation.

            Detective Michael Schopp answered an ad placed by Gina.
     He called the number on the Backpage ad, and asked for two
     girls for a bachelor party. Gina and her friend Natalie arrived at
     the hotel escorted by William Oravetz; Oravetz went to the hotel
     room with the girls and asked for the promised $275.00.
     Schopp refused to pay Oravetz and Oravetz then returned to his
     car. Schopp then asked if Gina and her friend would perform

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     oral and vaginal sex for him and his partner in exchange for
     $600. After she agreed, police arrested Gina and charged her
     with prostitution and with possession of a controlled substance
     for heroin found in her purse.     Oravetz was also arrested.
     Detective Schopp did not know what happened to the charges
     against Gina.

           Detective Joseph Ryczaj testified about arranging another
     meeting at a Days Inn hotel via Backpage with Gina and her
     friend, Crystal Waz, and subsequently arresting them for
     prostitution and for possession of heroin. Detective Ryczaj was
     unable to testify as to how those charges were resolved.

           On August 27, 2011, in connection with an investigation of
     [Appellant], Gina Silla and Crystal Waz agreed to work with
     narcotics Detective Todd Naylor in setting up a drug purchase.
     [Appellant] agreed to drive Gina and her friend to one of her
     erotic shows at the South Hills Hotel in the southern part of
     Allegheny County. [Appellant] drove a yellow cab. The girls
     entered the hotel room with Detective Naylor, who then
     prepared them with recording devices. The detective planned
     for the girls to ask [Appellant] to take them to see a drug dealer
     named “Fresh” and purchase heroin for the girls to give to
     “Scott[.”]

           [Appellant] drove the girls after being directed on how to
     find Fresh; Gina then left the cab and walked out of [Appellant’s]
     sight to purchase 19 glassine bags of heroin. Gina re-entered
     the cab and [Appellant] took them to another hotel. When the
     girls arrived, Detective Naylor searched them, confiscated the
     heroin, and removed the recording devices. Police did not arrest
     Fresh in connection with this transaction. Gina and Crystal did
     not face charges in this incident; because of her cooperation,
     Gina had other charges withdrawn. During [Appellant’s] trial,
     prosecutors played a tape recording5 of the conversation during
     the car ride to and from the encounter with Fresh; Detective
     Naylor admitted that much of the interaction between
     [Appellant] and Gina involved [Appellant] attempting to
     persuade Gina to get off drugs, go into rehab, and turn her life
     around.     Detective Naylor further admitted that the only
     connection that [Appellant] had to the drugs was that he
     provided transportation to Gina and Ms. Waz so they could
     purchase them.
                                     ___


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        5
          It is unclear why this tape was not transcribed as part of
        the Notes of Testimony.
                                     ___

           After this controlled buy, Detective Naylor arranged to get
     a search warrant for [Appellant’s] apartment. During the search,
     police discovered use paraphernalia for the heroin, small rubber
     bands and a quart size Ziploc bag filled with rice, as well as
     several random pieces of identification, including a Pennsylvania
     ID Card for William Jackson.

            William Jackson testified at trial that [Appellant] arrested
     him in 2008, three years prior to [Appellant’s] arrest. Jackson
     stated that [Appellant] took his ID card during an arrest for
     disorderly conduct and public drunkenness, and never returned
     it. Due to his lack of ID, Jackson spent the night in jail. During
     trial, over objection, Detective Schopp testified as an expert
     regarding the typical Pittsburgh police procedures followed when
     arresting someone for a third-degree misdemeanor. Detective
     Schopp stated that when the defendant in such cases has a valid
     ID, the police merely serve the defendant by summons or
     citation.

           Regarding the claimed insurance fraud, the prosecution
     presented testimony from David Borandi, who worked as the
     usual driver and security man for Gina. He worked almost every
     night for a time, sometimes driving [Appellant’s] personal car
     and sometimes a rental. Gina owned an uninspected, uninsured
     car, so it was not used. Borandi explained that he had an
     accident with the rental car; the car got stuck in mud and hit a
     tree. Borandi offered to pay to fix the car, but noted it would
     take him “a very long time” to get the money to fix the vehicle.

           The Commonwealth played an audio tape of a conversation
     between an insurance adjuster for State Farm Insurance, Pete
     Ziff, and [Appellant].    The contents of this tape were not
     transcribed. State Farm did not pay to repair the rental car as
     [Appellant’s] insurance plan did not cover cars rented for more
     than 30 days.

           The final witness for the Commonwealth, Keith Maceil,
     owned an auto body business. Mr. Maceil testified that his
     company contracted with Enterprise Rental Car to inspect
     Enterprise’s damaged rental cars and provide estimates for
     repairs. According to Maceil, the damage done to the Cadillac


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J-A19008-15


     indicated hitting a pole or a tree, not being sideswiped by
     another car while parked.

            [Appellant] testified on his own behalf.     [Appellant]
     testified that he had been a police officer for 16 years. He
     received unit citations and commendations during his career; he
     also received an award from the mayor and chief of police for
     meritorious service. He made thousands of arrests during the
     course of his career.

           Gina had been [Appellant’s] girlfriend up until the time of
     his arrest; he had no contact with her since August, 2011.
     [Appellant] knew that Gina would perform erotic entertainment
     shows for money but denied any involvement in her business.
     [Appellant] also denied assisting Gina in placing the ads on
     Backpage. [Appellant] opined that officers associated his name
     with the ads because Gina used his debit card, without his
     knowledge, to pay for them. After discovering that Gina used
     his card, [Appellant] cancelled that account.

             [Appellant] also testified that the manager at the
     Enterprise car rental place gave him a reduced rate for his rental
     of the Cadillac. [Appellant] personally rented the car for several
     months in early 2011. [Appellant] eventually discovered that
     Gina often took his car keys and borrowed his car without his
     permission when he worked. [Appellant] denied knowing that
     Gina gave his car keys to Oravetz or Borandi so that they could
     drive her around. Borandi had been Gina’s friend for about six
     years, since before [Appellant] knew her, and Borandi helped her
     place the ads for her business and also acted as her driver.
     [Appellant] also moonlighted as a yellow cab driver throughout
     this time. [Appellant] drove Gina around because she was his
     girlfriend and needed transportation; she never paid him.

           [Appellant] also testified about the night of the drug
     “sting.” [Appellant] planned to have a date with Gina that night,
     but Crystal Waz arrived and said that she booked an
     appointment to do a show for the two of them. Gina then asked
     [Appellant] to drive her and Crystal to the show. He agreed to
     drive them to the South Hills Motel. Gina and Crystal went into
     the hotel and [Appellant] waited for them in the cab. When they
     returned to the cab, Gina said that she wanted to go and see
     “Fresh.” Gina then gave directions, which [Appellant] followed.
     [Appellant] denied using heroin himself, but he knew that Gina
     was a heavy drug addict. [Appellant] did not see, or have any


                                   -6-
J-A19008-15


     interaction with Fresh. [Appellant] then took Gina and Crystal to
     their next appointment.

           Concerning the ID card for William Jackson, [Appellant]
     admitted he did not remember Mr. Jackson’s arrest until he
     further investigated. The police report for Jackson’s 2008 arrest
     states that Jackson did not have any identification with him that
     night; [Appellant] agreed that Jackson had none. Sometime
     after this arrest, [Appellant] remembered one of the security
     guards in the area told [Appellant] that someone had found
     Jackson’s ID card on the ground. The guard then handed the ID
     card to [Appellant]. [Appellant] said that his intention was to
     give Jackson back his ID card at his court hearing, but he did not
     know why that did not happen.

           Concerning the rented Cadillac, [Appellant] testified that
     he spoke to Todd, the Enterprise manager, after the accident
     and Todd told him that if the car was drivable that he could keep
     renting it. [Appellant] spoke with his insurance agent about
     coverage for the damage to the rental car. Yet, because he
     rented the car for more than 30 days, State Farm would not
     cover any damage. State Farm never made a payment to
     Enterprise.

           [Appellant] also provided testimony at trial of two
     character witnesses. Mr. Jerrell Robinson, [Appellant’s] former
     partner from the police department, testified that [Appellant]
     had the reputation for being a good, wholesome person.
     [Appellant] had compassion which sometimes other officers
     lacked. Brian Van Dusen also used to work with [Appellant] in a
     community program dealing with drug related issues. Mr. Van
     Dusen testified that [Appellant] is known as a “good guy” with a
     good reputation for being fair and operating “by the book[.”]
     Further, [Appellant] is “an honest guy, he is fair, he is a giving
     guy” and “a good person to speak to.”

            Finally, … Gina Silla’s criminal history around the time of
     this investigation of [Appellant] [was entered into evidence] via
     a stipulation …. At CC 201014123, Gina was charged with
     [several drug-related offenses]. On August 31, 2011, (right
     after the undercover action where Gina acted as a CI in this
     case), a magistrate dismissed these charges. At CC 201102713,
     the Commonwealth charged Gina with DUI[-related offenses].
     On August 31, 2011, … the Commonwealth nol[le] prossed these
     charges. At CC 201106091, Gina was charged with [prostitution


                                   -7-
J-A19008-15


      and drug-related offenses]. On November 17, 2011, Judge
      Williams dismissed all charges. At case 201109861, [Gina was
      charged with a drug offense and motor vehicle code violations].
      These charges were also nol[le] prossed and dismissed by Judge
      Williams on November 17, 2011. Lastly, at CC 201111082,
      Judge Mariani dismissed [drug-related charges] in November of
      2011.

Appellant’s Brief, at 10-20 (citations omitted).

      On May 14, 2013, a jury convicted Appellant of the following offenses:

attempted insurance fraud (18 Pa.C.S. § 4117, 18 Pa.C.S. § 901),

conspiracy (delivery of heroin) (18 Pa.C.S. § 903(c)), delivery of a controlled

substance (heroin) (35 P.S. § 780-113(a)(30)), possession with intent to

deliver a controlled substance (heroin) (35 P.S. § 780-113(a)(30)),

possession of a controlled substance (heroin) (35 P.S. § 780-113(a)(16)),

obstructing administration of law or other governmental function (18 Pa.C.S.

§ 5101), false reports to law enforcement authorities (18 Pa.C.S. §

4906(b)(1)), and official oppression (18 Pa.C.S. § 5301).

      On August 14, 2013, the trial court sentenced Appellant to a term of

3-6 years’ incarceration and a consecutive term of 7 years’ probation. Post-

sentence motions were denied following a hearing; however, no timely

appeal was filed immediately following that decision. Appellant then filed a

Post Conviction Relief Act Petition seeking reinstatement of his direct appeal

rights, which was granted by the court on January 8, 2014. Appellant filed a

timely, court-ordered Pa.R.A.P. 1925(b) statement on April 30, 2014, as well

as a supplemental Rule 1925(b) statement on July 7, 2014, following a delay




                                     -8-
J-A19008-15



in the production of transcripts.          The trial court issued its Rule 1925(a)

opinion on October 10, 2014.

       Appellant now presents the following questions for our review:

       I. Did the trial court err in failing to grant the motion to sever
       charges of Official Oppression from the remaining charges,
       resulting in great prejudice to [Appellant]?

       II. Was the evidence sufficient to support the conviction for
       Official Oppression?

       III. Was the evidence sufficient to support the drug trafficking
       convictions when the charges were based solely upon the theory
       that [Appellant] gave a ride to his drug-addict girlfriend?

Appellant’s Brief, at 7.

       Appellant first challenges the denial of his pre-trial motion to sever

official oppression from the remaining charges. On May 3, 2013, Appellant

filed a motion to sever the charges of official oppression and a related

charge of making a false statement.2             Both charges related to Appellant’s

2008 arrest of William Jackson. Appellant asserts that by prosecuting these

charges along with the unrelated drug- and prostitution-related crimes, the

Commonwealth “painted [Appellant] with a broad brush that screamed ‘bad

cop’ to the jury[.]” Appellant’s Brief, at 23. In this regard, Appellant argues

that the trial court’s refusal to grant severance unduly prejudiced him to a

degree that prevented him from receiving a fair trial. We agree that the trial
____________________________________________


2
   18 Pa.C.S. § 4904 (“Unsworn falsification to authorities”). The jury
ultimately acquitted Appellant of this charge, but found him guilty of official
oppression.



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J-A19008-15



court erred in denying the motion to sever, and that Appellant is entitled to

a new trial as a result.

       Our standard of review regarding a trial court’s denial of a motion to

sever charges is whether the court abused its discretion. Commonwealth

v. Jones, 610 A.2d 931, 936 (Pa. 1992). A trial court “may order separate

trials of offenses or defendants, or provide other appropriate relief, if it

appears that any party may be prejudiced by offenses or defendants being

tried together.”   Pa.R.Crim.P. 583.   Relatedly, offenses involving a single

defendant may be tried together if:       “(a) the evidence of each of the

offenses would be admissible in a separate trial for the other and is capable

of separation by the jury so that there is no danger of confusion; or (b) the

offenses charged are based on the same act or transaction.” Pa.R.Crim.P.

582.

       Synthesizing these rules in Commonwealth v. Lark, 543 A.2d 491

(Pa. 1988), our Supreme Court set forth the following three-prong test for

deciding a motion to sever:

       Where the defendant moves to sever offenses not based on the
       same act or transaction that have been consolidated in a single
       indictment or information, or opposes joinder of separate
       indictments or informations, the court must therefore determine:
       [1] whether the evidence of each of the offenses would be
       admissible in a separate trial for the other; [2] whether such
       evidence is capable of separation by the jury so as to avoid
       danger of confusion; and, if the answers to these inquiries are in
       the affirmative, [3] whether the defendant will be unduly
       prejudiced by the consolidation of offenses.

Id. at 496–97 (“the Lark Test”).


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       Here, the evidence supporting Appellant’s conviction for official

oppression included 1) the testimonial evidence of William Jackson regarding

his arrest; 2) the testimonial evidence of Detective Schopp regarding typical

Pittsburgh police procedures; and 3) William Jackson’s Pennsylvania ID

card.3 In concluding that it did not err in refusing to grant severance, the

trial court provided the following analysis in its Rule 1925(b) opinion:

       This court did not abuse its discretion in refusing to sever the
       2008 charges.      The evidence of [Appellant]'s possession of
       William Jackson's identification card, and how he came to
       possess have been admissible in a trial on the other charges.
       The ID card was found during the search of [Appellant]'s
       apartment. Paraphernalia for the ingestion and packaging of
       heroin was also found. Any evidence tending to demonstrate
       that a [Appellant] resided, or had control over, a residence
       where controlled substances or other contraband is found is
       relevant. The ID card of Mr. Jackson, standing alone, would not
       have been relevant. In fact, it could certainly have been used by
       the defense to argue that others had access to, or control over,
       the residence. The evidence explaining [Appellant]'s connection
       to that ID, and how it came to be in his possession, was relevant
       as "indicia" or proof of [Appellant]'s residency in the apartment.
       The evidence was also capable of being separated by the jury
       and was not likely to confuse them. Moreover, [Appellant]
       suffered no prejudice in having the cases tried together.

Trial Court Opinion (TCO), 10/9/14, at 7-8.

       We begin our own analysis with an examination of the facts as they

pertain to the first prong of the Lark Test.       As is apparent from the trial

court’s analysis, the court did not consider whether Detective Schopp’s

____________________________________________


3
  Where applicable, these three items are collectively referred to as the
“evidence of official oppression.”



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testimony would have been admissible in a separate trial for the drug-

related offenses for which Appellant was convicted.                 The court only

considered the admissibility of Jackson’s testimony and his ID card at a

separate trial for Appellant’s drug-related offenses.         Additionally, the trial

court does not at all discuss how the evidence of official oppression was

admissible in a separate trial for attempted insurance fraud. After our own

careful consideration of the record, we conclude that evidence of Detective

Schopp’s testimony regarding Pittsburgh police policy would not be relevant

in separate trials for Appellant’s drug-related offenses or insurance fraud,

and none of the evidence of official oppression would be admissible in a

separate trial for attempted insurance fraud.

      Moreover, the trial court only conducted a one-directional analysis.

The trial court did not consider whether any of the drug-related evidence, or

evidence of attempted insurance fraud, would be admissible for any purpose

in a separate trial for official oppression.       It is immediately apparent that

such evidence would not be admissible in a separate trial for official

oppression.    Even though Jackson’s ID card was discovered in a search

conducted     pursuant   to   an   investigation    into   Appellant’s   drug-related

charges, the drug-related evidence was not relevant to any issue that could

arise during a separate trial for official oppression.




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       Appellant’s drug-related crimes and official oppression offense also did

not, in any sense, constitute a single criminal episode. 4      In determining

whether offenses constitute a single criminal episode, courts consider: “(1)

the temporal sequence of events; (2) the logical relationship between the

acts; and (3) whether they share common issues of law and fact.”         Lane,

658 A.2d at 1355.         Here, the offense of official oppression arose out of

Appellant’s arrest of Jackson in 2008, whereas Appellant’s drug-related

offenses pertain to events occurring in 2011. There is no logical relationship

between these criminal acts. The only nexus of facts between the offenses

is trivial, as the discovery of Jackson’s ID occurred during a search of

Appellant’s home in 2011.             No common issues of law are present.

Accordingly, these separate offenses did not arise out of a single criminal

episode.

       The Commonwealth concedes that the joined offenses did not arise out

of the same criminal episode. Commonwealth’s Brief, at 15 (“These charges

did not arise from the same act or transaction as others in the
____________________________________________


4
  Evidence of one crime that might otherwise be inadmissible in a separate
trial for another crime may be admissible in a joint trial for both offenses if
both offenses arise from a single criminal episode. Commonwealth v.
Lane, 658 A.2d 1353, 1355 (Pa. Super. 1995).              This is to prevent
harassment by the prosecution in the form of successive prosecutions for
offenses that arise out of a single criminal episode even though they involve
distinct facts. See 18 Pa.C.S. § 110(1)(ii) (barring a new prosecution for
“any offense based on the same conduct or arising from the same criminal
episode” that formed the basis of a former prosecution that resulted in
conviction or acquittal).



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Information.”).      The Commonwealth contends, however, that Jackson’s ID

card and testimony related to Jackson’s arrest was admissible at separate

trials.     However, much like the trial court, the Commonwealth simply

overlooks the admissibility of the significant amount of drug-related

evidence and testimony in a separate trial for official oppression, and then

analyzes jury confusion and prejudice issues premised exclusively on

Jackson’s testimonial evidence and physical evidence, his ID, under the

second and third prongs of the Lark Test.           Yet, having determined that

much of the evidence of Appellant’s drug-related offenses was inadmissible

in a separate trial for official oppression, we do not even reach beyond the

first prong of the Lark Test.

          Accordingly, we conclude that the trial court erred in denying

Appellant’s pre-trial motion to sever official oppression from the remaining

charges as it is clear that the first prong of Lark could not be satisfied in this

case.       As such, we are compelled to reverse Appellant’s judgment of

sentence and remand for new, separate trials.

          Despite reaching this disposition, we are still obligated to address

Appellant’s remaining sufficiency claims.           Our standard of review of

sufficiency claims is well-settled:

          A claim challenging the sufficiency of the evidence is a question
          of law. Evidence will be deemed sufficient to support the verdict
          when it establishes each material element of the crime charged
          and the commission thereof by the accused, beyond a
          reasonable doubt. Where the evidence offered to support the
          verdict is in contradiction to the physical facts, in contravention
          to human experience and the laws of nature, then the evidence

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      is insufficient as a matter of law. When reviewing a sufficiency
      claim[,] the court is required to view the evidence in the light
      most favorable to the verdict winner giving the prosecution the
      benefit of all reasonable inferences to be drawn from the
      evidence.

Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000) (internal

citations omitted).

         Appellant’s   first   sufficiency   challenge   concerns   the        evidence

supporting his conviction for official oppression.         Essentially, Appellant

argues that there was insufficient evidence for that offense because he

lawfully arrested Jackson, regardless of his compliance with police policy that

would have permitted him to merely issue a citation for charged offenses.

We agree.

      Official oppression is defined as follows:

      A person acting or purporting to act in an official capacity or
      taking advantage of such actual or purported capacity commits a
      misdemeanor of the second degree if, knowing that his conduct
      is illegal, he:

         (1) subjects another to arrest, detention, search, seizure,
         mistreatment, dispossession, assessment, lien or other
         infringement of personal or property rights; or

         (2) denies or impedes another in the exercise                    or
         enjoyment of any right, privilege, power or immunity.

18 Pa.C.S. § 5301.

      Jackson entered a guilty plea to disorderly conduct and public

intoxication, the charges for which he was arrested by Appellant in 2008.

N.T., 5/7/2013 - 5/14/2013, at 162-63; 167-68. Although both crimes were

graded as summary offenses for purposes of Jackson’s plea, disorderly



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conduct may be graded as “a misdemeanor of the third degree if the intent

of the actor is to cause substantial harm or serious inconvenience, or if he

persists in disorderly conduct after reasonable warning or request to desist.”

18 Pa.C.S. § 5503(b). A police officer may make a warrantless arrest for a

misdemeanor if he has probable cause to believe that the offense is being

committed in his presence. Commonwealth v. Reeves, 297 A.2d 142, 143

(Pa. Super. 1972).

      In finding the evidence sufficient to support the jury’s verdict on

official oppression, the trial court does not discuss the legality of Jackson’s

arrest. Instead, the trial court states that the jury could have found all the

elements of official oppression were met if the jury believed that Appellant

“lied in the police report and affidavit of probable cause and, thereby,

caused Mr. Jackson to be arrested and jailed.” TCO, at 14. In its brief, the

Commonwealth agrees that this was the theory of guilt pursued by the

prosecution at Appellant’s trial:

      The Commonwealth’s position at trial was that because an
      individual with an identification card normally would not be taken
      to jail for the offenses of public intoxication and disorderly
      conduct (those charged against Jackson) if he had a valid
      identification card, [A]ppellant’s action in taking Jackson’s ID
      card caused Jackson to be jailed.

Commonwealth’s Brief, at 20 (emphasis in original).

      Consistent with our standard of review, this Court must resolve any

credibility issues in favor of the Commonwealth’s theory of guilt. Thus, we

assume for purposes of our sufficiency analysis that Appellant did not


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inadvertently come into possession of Jackson’s ID card as Appellant claimed

during his trial. Rather, we must assume that Appellant intentionally took

possession of Jackson’s ID during the arrest and then failed to subsequently

return it to him.

      The     Commonwealth    does   not   appear   to   dispute   that   Jackson

committed an arrestable offense, but still maintains that the arrest itself was

the harm inflicted by Appellant’s conduct. Thus, the Commonwealth’s theory

of guilt hinges on the likelihood of Jackson’s incarceration in the absence of

Appellant’s bad conduct, rather than on the legality of the arrest itself. If,

however, Jackson could have been arrested regardless of whether he

possessed his ID card, then it strains logic to conclude that Appellant’s bad

conduct caused Jackson’s arrest/incarceration.

      Neither the Commonwealth nor the trial court provides any case law

supporting the theory of guilt for which Appellant was convicted of official

oppression.    Indeed, the Commonwealth acknowledges that some support

for Appellant’s claim may be found in Commonwealth v. Baranyai, 419

A.2d 1368 (Pa. Super. 1980). Baranyai, a police officer, was convicted of

official oppression based on circumstances surrounding his arrest of David

Stier for DUI and resisting arrest, which included Baranyai’s arguably

excessive use of force to overcome Stier’s purported resistance to arrest.

Stier accepted Accelerated Rehabilitative Disposition (ARD) with regard to

DUI and resisting arrest.    In light of that disposition, Baranyai argued on

appeal that his conviction for official oppression was barred by collateral

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estoppel, contending that Stier’s acceptance of ARD effectively demonstrated

the legality of the arrest. The Superior Court rejected Baranyai’s argument

because Stier’s acceptance of ARD “did not constitute an adjudication of

guilt” and because “the Commonwealth and not [Baranyai] was the other

party in that criminal action.” Baranyai, 419 A.2d at 1373.

       Here, the Commonwealth notes that because the Baranyai Court

dismissed Baranyai’s collateral estoppel claim on two separate grounds, it is

unclear whether it would have ruled differently if Stier had pled guilty, as

Jackson did in this case.         In our own analysis, Baranyai is also

distinguishable because Baranyai violently assaulted Stier while arresting

him for DUI, a fact that was pertinent to both Stier’s resisting arrest charge

and Baranyai’s official oppression charge.           Here, however, Appellant’s

purported theft of Jackson’s ID did not directly or indirectly impact the

elements of the crimes for which Jackson was charged, arrested, and to

which he ultimately pled guilty.      In light of these differences, Baranyai

could certainly be read as persuasive support of Appellant’s argument; but,

ultimately, the Baranyai decision was too light on analysis of the collateral

estoppel claim to be controlling in this matter.

       Both parties also discuss Commonwealth v. Eisemann, 453 A.2d

1045   (Pa.   Super.   1982),   but   arrive   at   opposite   conclusions   as   to




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Eisemann’s import. The facts in Eisemann are not at all analogous to the

instant matter.5 However, in that case, this Court articulated that,

        in order to constitute the offense of “Official Oppression[,”] the
        person acting in the “official capacity” must knowingly and
        illegally deny or impede another in the exercise of some
        “right[,”] “power” or “immunity[,”] or must knowingly and
        illegally subject another to “arrest, detention, search, seizure,
        mistreatment, dispossession, assessment, lien or other
        infringement of personal or property rights[.”] [Emphasis—
        ours.][6] We hold that the word “knowing” means that the
        accused must have been acting in “bad faith” when he subjected
        the other to the proscribed activities.

Id. at 1048.

        The Commonwealth asserts that Appellant’s theft of Jackson’s ID

constitutes ‘bad faith’ because, as a 16-year veteran of the Pittsburgh Police

force, he would have known that Jackson was likely to have been treated

differently had Appellant not deprived him of his ID.        Appellant argues,

however, that irrespective of his apparent ‘bad faith’, Jackson had neither a

privilege nor a right to not be arrested for an arrestable offense, nor did he

have any cognizable immunity from arrest. The Commonwealth appears to

concede this point, admitting that “Jackson had no ‘right’ not to answer to

the criminal justice system for criminal behavior[.]” Commonwealth’s Brief,
____________________________________________


5
  Eisemann was “a private prosecutor who want[ed] to charge the mayor
and four council members of the City of Lock Haven, Pennsylvania, with”
official oppression for refusing to answer his questions at a public meeting.
Id. at 1046. Eisemann asserted that any attempt to limit his speech at the
meeting constituted official oppression.
6
    Bracketed comment in original.



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at 22. Instead, the Commonwealth contends, “what [Jackson] could be said

to have had was an expectation, supported by police practice, that by

providing proper identification, he would not be taken to jail.” Id.

      When reviewing the scope of the official oppression statute, we must

adhere to the following principles:

      [P]enal statutes are to be strictly construed. The need for strict
      construction does not require that the words of a penal statute
      be given their narrowest possible meaning or that legislative
      intent be disregarded, nor does it override the more general
      principle that the words of a statute must be construed
      according to their common and approved usage[.] It does
      mean, however, that where ambiguity exists in the language of a
      penal statute, such language should be interpreted in the light
      most favorable to the accused. More specifically, where doubt
      exists concerning the proper scope of a penal statute, it is the
      accused who should receive the benefit of such doubt.
      Significantly, a court may not achieve an acceptable construction
      of a penal statute by reading into the statute terms that broaden
      its scope.

Commonwealth v. Booth, 766 A.2d 843, 846 (Pa. 2001) (internal citations

omitted).

      In our view, the plain meaning of Section 5301 does not aim to

criminalize the denial or impediment of mere expectations, even where such

expectations arise out of long-standing police policies or practices.      And,

even if the statute could be interpreted to protect such expectations in

defiance of its plain meaning and the principle of lenity, there is no evidence

of record that Jackson actually held such an expectation.        Moreover, as

discussed above, Jackson was lawfully arrested, and could have been

lawfully arrested even if Appellant had not taken his ID card. Accordingly,


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we conclude that there was insufficient evidence to support Appellant’s

conviction for official oppression.

      Before    we    address     Appellant’s    second     sufficiency    claim,     which

concerns his drug-trafficking convictions, we must first address whether he

has waived a challenge to the sufficiency of the evidence supporting his

conviction for conspiracy to commit those offenses.                 The Commonwealth

contends Appellant waived any sufficiency challenge to that offense by

failing to raise the matter in his Rule 1925(b) statement, a position taken by

the trial court in its Rule 1925(a) opinion. See Commonwealth v. Lord,

719 A.2d 306, 309 (Pa. 1998) (“Any issues not raised in a 1925(b)

statement will be deemed waived.”). Appellant pleads that we entertain this

issue on appeal because if prior appellate counsel had in fact waived a

challenge to the sufficiency of his conspiracy conviction, prior counsel’s

failure would constitute a clear case of record-based ineffective assistance of

counsel.   However, because we conclude that Appellant’s Rule 1925(b)

adequately,    if   inartfully,   preserved     the   challenge     to    his   conspiracy

conviction, we conclude that Appellant did not waive the claim.

      We    must      acknowledge      that     Appellant     did    not    clearly    and

unambiguously set forth a separate and distinct claim challenging the

sufficiency of the evidence supporting his conspiracy conviction in his Rule

1925(b) statement. However, Appellant’s sufficiency challenge to his drug-

trafficking convictions was raised as follows:




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     Insufficient     Evidence:    Delivery   of    [a    Controlled
     Substance] Appellant’s state and federal due process rights,
     see U.S. Const. amend. XIV and Pa. Const. art. I § 9, were
     violated when he was convicted of Delivery of a Controlled
     Substance (35 P.S. § 780-113(a)(30)) on or about August 27,
     2011. Acquittal on the charge of Possession of a Controlled
     Substance with Intent to Deliver ought to have been voted by
     Appellant’s jury since the Commonwealth failed to prove, beyond
     a reasonable doubt, either (a) that Appellant, or a person for
     whose conduct Appellant was legally responsible, possessed the
     controlled substance of heroin on August 27, 2011, or (b) that
     Appellant, or a person for whose conduct Appellant was legally
     responsible, delivered to another person the possessed
     [controlled substance] on August 27, 2011 by either Appellant or
     a person for whose conduct Appellant was legally responsible.

Appellant’s Pa.R.A.P. 1925(b) Statement, 4/30/14, at 4-5 ¶ 7.

     The Commonwealth never asserted at trial that Appellant acted as a

principle in the commission of the drug-trafficking offense for which he was

convicted.   Accordingly, the only theories of his guilt pursued concerned

Appellant’s role as an accomplice or a co-conspirator to drug-trafficking for

his assisting of Gina in her endeavor to acquire heroin from “Fresh” on

behalf of Detective Naylor. While inartfully drafted, Appellant’s delivery-of-

a-controlled-substance sufficiency claim does raise the matter of his

culpability as a co-conspirator or accomplice by repeatedly referencing “or a

person for whose conduct Appellant was legally responsible.” Id. No other

basis for the inclusion of that repeated phrase is possible. Therefore, when

read in the context of the instant case, Appellant’s above-quoted statement

of the issue does not appear to abandon a challenge to his conspiracy

conviction as found by the trial court and argued by the Commonwealth.




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      Indeed, given the factual and procedural posture of this case, a

challenge to the sufficiency of the drug-trafficking conviction would be

meaningless in the absence of a challenge to the related conspiracy

conviction.   Accordingly, to apply Lord’s waiver in this instance would be

excessively harsh and unjust, as Appellant clearly made some attempt to

preserve a conspiracy-based sufficiency challenge to his drug-trafficking

convictions. Thus, we hold that Appellant did not waive consideration of the

sufficiency of the evidence supporting his conviction for conspiracy.

      Regardless of this waiver issue, however, Appellant’s sufficiency

challenge to his drug-trafficking-related convictions is meritless.       It is

axiomatic that “conspirators are liable for acts of co-conspirators committed

in furtherance of the conspiracy.” Commonwealth v. Lambert, 795 A.2d

1010, 1016 (Pa. Super. 2002) (en banc).

      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; …

18 Pa.C.S. § 903(a).     In addition to the conspiratorial agreement, “[n]o

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.

           The essence of a criminal conspiracy is the common
      understanding that a particular criminal objective is to be
      accomplished. Mere association with the perpetrators, mere
      presence at the scene, or mere knowledge of the crime is

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J-A19008-15


      insufficient. Rather, the Commonwealth must prove that the
      defendant shared the criminal intent, i.e., that [he] 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         proved 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.”

Lambert, 795 A.2d at 1016 (citations omitted).

      To distinguish between an actual conspiracy and ‘mere suspicion or

possibility of guilty collusion,’ this Court considers the following factors:

      (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.

Id.

      In the instant case, and in reference to the above-listed factors, we

surmise the following:       (1) Appellant’s prior association with Gina is

undisputed. (2) Appellant knew that Gina used heroin, and that the purpose

of their trip to see “Fresh” was for Gina to procure heroin,            and then

Appellant would return Gina to the hotel with the contraband for use by her

and “Scott,” the cover name for Detective Naylor. (3) While Appellant was

not present when Gina acquired the heroin from “Fresh” or delivered it to

“Scott,” he was certainly present during the transportation of the narcotics.


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(4) Appellant can also be said to have participated in the object of the

conspiracy, which was the purchase, transport, and delivery of heroin.

Appellant participated in all three aspects of that objective by providing

transportation to Gina with full knowledge that he was doing so in order to

facilitate Gina’s purchase and delivery of heroin.     Finally, Gina undertook

overt acts in furtherance of the conspiracy by purchasing and delivering the

heroin, and Appellant committed an overt act in furtherance of the

conspiracy by providing her transportation for those activities with full

knowledge of what was occurring.        Thus, the evidence was sufficient to

support Appellant’s conviction for conspiracy.    Consequently, the evidence

was sufficient to support Appellant’s drug-trafficking convictions as well.

      For the same reasons, Appellant was also culpable as an accomplice.

“A person is an accomplice of another person in the commission of an

offense if: (1) with the intent of promoting or facilitating the commission of

the offense, he: … (ii) aids or agrees or attempts to aid such other person in

planning or committing it ….”     18 Pa.C.S. § 306(c).    As discussed above,

Appellant aided Gina in her commission of drug-trafficking offenses.

      Appellant argues that he was “merely a driver for his girlfriend[,]” and

that she “made all decisions and handled all transactions.” Appellant’s Brief,

at 52.    However, Appellant admitted his knowledge of Gina’s criminal

enterprise, and facilitated it by providing her transportation. That Appellant

was not an equal partner in that enterprise does not relieve him of

culpability.   There was a common understanding that drug-trafficking

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J-A19008-15



offenses would be committed, and overt acts were taken by both Gina and

Appellant in furtherance of that tacit conspiratorial agreement.    Appellant

was not merely present during those offenses, nor was he merely

knowledgeable that they would occur.

      In summary, we conclude that the trial court erred when it denied

Appellant’s pre-trial motion to sever official oppression from the remaining

charges. As such, we vacate Appellant’s judgment of sentence and remand

for a new trial(s). However, because we conclude that there was insufficient

evidence of official oppression, Appellant cannot be retried for that offense.

See Commonwealth v. McMullen, 721 A.2d 370, 374 (Pa. Super. 1998)

(recognizing that “the double jeopardy clause will bar retrial when a

conviction is reversed ‘because of insufficiency of the evidence’”). We also

conclude that there was no merit to Appellant’s challenge to the sufficiency

of the evidence supporting his drug-trafficking and conspiracy offenses;

thus, Appellant may be retried for those offenses.

      Conviction for official oppression reversed.    Judgment of sentence

vacated. Case remanded for a new trial(s), consistent with the holdings in

this memorandum. Jurisdiction relinquished.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/28/2015




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