J-S55005-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF                            :   IN THE SUPERIOR COURT OF
    PENNSYLVANIA,                              :        PENNSYLVANIA
                                               :
                      Appellant                :
                                               :
                                               :
               v.                              :
                                               :
                                               :   No. 328 MDA 2017
    BETSY LINN JOHNSON

                Appeal from the Order Entered January 23, 2017
                 In the Court of Common Pleas of Centre County
              Criminal Division at No(s): CP-14-CR-0001417-2016


BEFORE:      DUBOW, J., RANSOM, J., and STRASSBURGER, J.*

MEMORANDUM BY DUBOW, J.:                             FILED NOVEMBER 16, 2017

        The Commonwealth appeals from the January 28, 2014 Order the

Centre County Court of Common Pleas entered on January 23, 2017,

dismissing the charge of Tampering with or Fabricating Physical Evidence

against Appellee, Betsy Linn Johnson, based upon a lack of prima facie

evidence. After careful review, we are constrained to reverse.

        We summarize the factual and procedural background of this matter as

follows. On May 27, 2016, Appellee called 911 to report that her boyfriend,

Joshua Rupert (“Rupert”), had assaulted her. N.T., 9/7/16, at 10. Members

of the Pennsylvania State Police responded to the scene, at the side of the

road along State Route 144, and interviewed Appellee and Rupert. Id. at 7.
____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
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        Appellee told Trooper Benjamin Clark (“Trooper Clark”) that she called

911 after Rupert had physically assaulted her.          Id. at 10.   She also told

Trooper Clark that Rupert had been in possession of a small amount of

marijuana, which he had dropped on the ground as the first Troopers pulled

up to their location.        Id. at 10-11.       Appellee admitted to picking the

marijuana up off the ground and throwing it over a guide rail along the

shoulder of the road in order to obscure it from view. Id. at 10. She then

led Trooper Clark to the spot where she had thrown the bag.             Id. at 11.

Trooper Clark recovered the bag and its contents, and his field test for

marijuana was positive. Id. at 8.

        Trooper Clark arrested Appellee and charged her with Possession of a

Small Amount of Marijuana.1 At Appellee’s September 7, 2016 preliminary

hearing, the Commonwealth amended the Criminal Complaint, over defense

objection, to include a charge of Tampering with or Fabricating Physical

Evidence.2     After the hearing, the district court dismissed the charge of

Possession of a Small Amount of Marijuana, and the Commonwealth did not

appeal that ruling. The district court bound Appellee over for court on the

charge of Tampering with or Fabricating Physical Evidence.



____________________________________________


1   35 P.S. § 780-113(a)(31).

2   18 Pa.C.S. § 4910.



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      On October 6, 2016 Appellee filed a Petition for Writ of Habeas Corpus

challenging the Commonwealth’s prima facie case against her.                 On

December 8, 2016, the trial court held a hearing on the Petition and on

January 24, 2017, the trial court granted the Petition based on its conclusion

that “the Commonwealth has not presented any evidence of [Appellee’s]

knowledge of an investigation or official proceeding involving marijuana prior

to throwing the bag of marijuana over the guide rail.” Trial Court Opinion,

filed 1/24/17, at 5.

      The Commonwealth filed a timely appeal as authorized following the

dismissal of charges following a trial court’s grant of a pre-trial Petition for

Writ of Habeas Corpus.     See Commonwealth v. Hess, 414 A.2d 1043,

1047 (Pa. 1980). On appeal, the Commonwealth raises one issue:

      Whether the trial court erred when it granted [Appellee’s]
      Petition for Writ of Habeas Corpus dismissing the sole count of
      tampering with evidence and discharging [Appellee] after the
      Commonwealth clearly established each element of the offense?

Commonwealth’s Brief at 4.

      Regarding our scope and standard of review, our Supreme Court has

noted that “it is settled that the evidentiary sufficiency, or lack thereof, of

the Commonwealth's prima facie case for a charged crime is a question of

law as to which an appellate court's review is plenary.” Commonwealth v.

Karetny, 880 A.2d 505, 528 (Pa. 2005) (citation omitted).         “Indeed, the

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

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its pre-trial, prima facie burden to make out the elements of a charged

crime.” Id. As the Commonwealth’s claim presents a question of law, our

scope of review is plenary and our standard of review is de novo. See In re

Vencil, 152 A.3d 235, 241 (Pa. 2017) (noting that, for pure questions of

law, “our standard of review is de novo and our scope of review is

plenary.”).

      At issue here is whether the Commonwealth produced sufficient

evidence to establish a prima facie case of Tampering with or Fabricating

Physical Evidence. As this Court has previously explained:

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

Commonwealth v. Marti, 779 A.2d 1177, 1180 (Pa. Super. 2001) (internal

citations and quotations omitted).

      The offense of Tampering with or Fabricating Physical Evidence is

defined, in relevant part, as follows:

      A person commits a misdemeanor of the second degree if,
      believing that an official proceeding or investigation is pending or
      about to be instituted, he:



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         (1) alters, destroys, conceals or removes any record,
         document or thing with intent to impair its verity or
         availability in such proceeding or investigation[.]

18 Pa.C.S. § 4910(1). Thus, the Commonwealth must prove three elements

to establish the offense of Tampering with or Fabricating Physical Evidence:

“(1) the defendant knew that an official proceeding or investigation was

pending; (2) the defendant altered, destroyed, concealed, or removed an

item; and (3) the defendant did so with the intent to impair the verity or

availability of the item to the proceeding or investigation.” Commonwealth

v. Jones, 904 A.2d 24, 26 (Pa. Super. 2006) (citation omitted).

      In the instant case, the trial court conceded that Appellee was aware

of an impending investigation into her domestic violence claim, but

concluded that she must have also been aware of an impending investigation

into the marijuana at issue to satisfy the first element of Tampering with or

Fabricating Physical Evidence. Trial Court Opinion at 4.

      We find nothing in in the language of Section 4910, which refers to “an

. . . investigation” generally, to support such a narrow, offense specific

reading of the statute. Moreover, even if we concluded that the mens rea

element of Section 4910 required Appellee to be aware of an impending

investigation into the small amount of marijuana, we conclude that the

Commonwealth has established sufficient evidence of that element under the

prima facie standard.

      Trooper Clark summarized his interaction with Appellee as follows:



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       During the interview with [Appellee] she had reported that her
       boyfriend[, Rupert,] had dropped [a glassine bag with a small
       amount of marijuana] out of his pocket upon me approaching
       the first police car, first patrol unit. [Appellee] related that she
       picked it [up] off of the ground and she threw it over the guide
       rail. She then showed us where that small bag of marijuana
       was. I took possession of the marijuana and reiterated to
       [Appellee]—I summed up what she was saying and said so what
       you are telling me you took possession of that small bag of
       marijuana and threw it over the guide rail to hide it from police
       and at that point she stated yes.

N.T. at 8.

       Appellee admitted that she threw the bag over the guide rail while

officers were approaching in order to hide it from their view. It is reasonable

to infer, based on the evidence in the light most favorable to the

Commonwealth, that she hid the marijuana from police because she was

aware that they would investigate the marijuana if it remained in plain sight.

Thus, we conclude that the trial court erred in dismissing the charge on

these grounds.

       In her brief to this Court, Appellee avers two additional grounds to find

that the Commonwealth failed to present a prima facie case of Tampering

with   or    Fabricating   Physical   Evidence.     First,   Appellee   cites   to

Commonwealth v. Delgado, 679 A.2d 223 (Pa. 1996), to support her

claim that she merely “abandoned” rather than concealed the marijuana.

Appellee’s Brief at 8-9.

       The procedural context of Delgado is different from the procedural

context of the instant matter.        Delgado concerned a challenge to the



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sufficiency of the evidence at trial. Here, we consider the sufficiency of the

evidence at a pre-trial proceeding.      The standards of proof are different.

See, e.g., Marti, 779 A.2d at 1180 (“[T]he 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.”). Thus, reliance on Delgado is misplaced.

      Moreover, we conclude that the facts of Delgado are distinguishable

from the instant case.    In Delgado, a suspect in a narcotics investigation

threw a bag of cocaine onto a rooftop while in a close foot chase with

officers.   Delgado, 679 A.2d at 225.          Our Supreme Court held that

“discarding contraband in plain view of [a] pursuing officer” constitutes

abandonment rather than destruction or concealment.          Id.   In the instant

case, Appellee did not merely discard marijuana already in her possession;

instead, she took possession of the marijuana in order to conceal it.

      Finally, Appellee avers that the fact that she immediately disclosed the

location of the marijuana demonstrates that her intent was to preserve the

evidence for police, not conceal it from them. Appellee’s Brief at 9. That

may be one reasonable inference that can be drawn from the evidence and

argued at trial, but it is not a relevant inference in a prima facie analysis.

      We are instructed to examine the evidence in the light most favorable

to the Commonwealth, and to make those reasonable inferences that would

support a verdict of guilty, not undermine it.       Marti, 779 A.2d at 1180.


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Viewed through this lens, the evidence supports the Commonwealth’s

position that Appellee had the requisite intent to conceal the marijuana, and

only later confessed to the crime after its commission.

      While a jury might well find Appellee not guilty of the offense charged,

it is not for us or the trial court to decide guilt at this stage. At this stage,

the Commonwealth must only present evidence to establish sufficient

probable cause to believe Appellee committed the crime charged. Here, the

trial court should have denied Appellee’s Petition. Based on the foregoing,

the order of the trial court is reversed, and the charge of Tampering with or

Fabricating Physical Evidence is reinstated.

      Order reversed. Case remanded. Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/16/2017




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