Com. v. Holston, R.

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2019 Pa. Super. 176
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
RICHARD HOLSTON : No. 223 EDA 2016
Appeal from the Order December 21, 2015
In the Court of Common Pleas of Bucks County Criminal Division at
No(s): CP-09-CR-0005331-2015
BEFORE: GANTMAN, P.J., BENDER, P.J.E., PANELLA, J., SHOGAN, J.,
LAZARUS, J., STABILE, J., DUBOW, J., NICHOLS, J., and
McLAUGHLIN, J.
OPINION BY SHOGAN, J.: FILED MAY 31, 2019
The Commonwealth appeals from the order dismissing all charges filed
against Appellee, Richard Holston, the proprietor of a business known as
Summerdale Mills, which is a drapery and upholstery sales and manufacturing
business that performed work for the Risoldi family. For the reasons that
follow, we affirm.
We summarize the underlying history of this case as follows. The Risoldi
family experienced multiple fires in their residences, resulting in the filing of
numerous claims to insurance companies. Specifically, there were three fires,
one in June of 2009, another in August of 2010, and the third in October of
2013. Insurance claims were made for damages suffered in each of the fires,
including damage to window treatments provided by Summerdale Mills.
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Following the third fire, the insurer, AIG, refused to pay the claim for damage
to the window treatments unless the Risoldis produced documentation that
the window treatments had been replaced after the second fire and submitted
the cost of that replacement. The Risoldi family alleged that receipts were
lost in the fire and that Summerdale Mills did not have copies of the receipts.
Ultimately, a grand jury was convened to investigate whether the Risoldi
family and their associates were involved in submitting fraudulent insurance
claims.1 Appellee was subpoenaed to testify before the grand jury and to
produce records of all business between Summerdale Mills and members of
the Risoldi family including checks, invoices, and estimates for replacement of
fabrics due to fires at the Risoldis’ residences.2
On September 16, 2014, Appellee testified before the grand jury. On
October 8, 2014, a search warrant was executed at Summerdale Mills. At that
time, numerous documents were recovered pertaining to work performed by
Summerdale Mills for the Risoldi family.
Also in October of 2014, after the execution of the search warrant, Mark
Goldman, a private investigator for the Risoldi family, delivered a binder of
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1We note that after the Bucks County District Attorney determined he had a
conflict of interest, the matter was referred to the Office of the Attorney
General.
2 Appellee became the owner of Summerdale Mills, which has been in business
for over thirty-five years, in January of 2014. The previous owner was
Abraham Reichbach, Appellee’s brother-in-law. Prior to assuming ownership
of Summerdale Mills, Appellee supervised the business’s fabrication shop.
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documents to AIG purporting to contain records from Summerdale Mills
related to the window treatments. Some of the records misspelled the name
of the company and reflected amounts paid to Summerdale Mills without
description of the work or service provided.
On December 19, 2014, the Thirty-Fifth Statewide Investigating Grand
Jury3 issued a presentment recommending that charges be filed against
Appellee, Claire Risoldi, Carl Risoldi, Carla Risoldi, Sheila Risoldi, Tom French,
and Mark Goldman in connection with an alleged multi-million-dollar
insurance-fraud scheme. Appellee was charged with one count each of corrupt
organizations, insurance fraud, criminal conspiracy, obstruction of the
administration of law, and perjury.4
On February 4, 2015, the Commonwealth filed a petition seeking to file
bills of information without a preliminary hearing, and on March 3, 2015,
Judge Gavin denied the Commonwealth’s petition. A preliminary hearing
ultimately was held before Magisterial District Judge C. Robert Roth on August
19, 2015. At the conclusion of the preliminary hearing, the charges of
insurance fraud, criminal conspiracy, obstruction of the administration of law,
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3 We observe that, due to the prominence of the Risoldi family in Bucks County
politics, the entire Bucks County Court of Common Pleas recused itself from
the matter, and Senior Judge Thomas G. Gavin of Chester County was
appointed to preside over the case.
4 18 Pa.C.S. §§ 911, 4117(a)(2), 903(c), 5101, and 4902(a), respectively.
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and perjury were held for court. The charge of corrupt organizations was
dismissed.
On October 2, 2015, Appellee filed a petition for writ of habeas corpus.
On October 15, 2015, a hearing on the petition was held before Judge Gavin,
and on December 21, 2015, Judge Gavin granted habeas relief and dismissed
all charges against Appellee. The Commonwealth filed this timely appeal.
Both the Commonwealth and the trial court have complied with Pa.R.A.P.
1925. On November 20, 2017, a panel of this Court affirmed the order of the
trial court. The Commonwealth then filed an application for reargument en
banc, which we granted. This matter is now ripe for our disposition.
Before we address the merits of the Commonwealth’s appeal, we must
consider whether we have jurisdiction. We note that this matter involves an
appeal from a pretrial order. Generally, when criminal charges are dismissed
prior to trial, the Commonwealth can simply refile the charges and, therefore,
an appeal from such an order is interlocutory. Commonwealth v. Price, 684
A.2d 640, 641 (Pa. Super. 1996) (citing Commonwealth v. Waller, 682 A.2d
1292 (Pa. Super. 1996)). However, under Pennsylvania Rule of Appellate
Procedure 311(d), in criminal cases the Commonwealth has a right to appeal
an interlocutory order if the Commonwealth certifies that the order will
terminate or substantially handicap the prosecution. Commonwealth v.
Flamer, 53 A.3d 82, 86 n.2 (Pa. Super. 2012). Specifically, Rule 311(d)
provides as follows:
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In a criminal case, under the circumstances provided by law, the
Commonwealth may take an appeal as of right from an order that
does not end the entire case where the Commonwealth certifies
in the notice of appeal that the order will terminate or substantially
handicap the prosecution.
Pa.R.A.P. 311(d). The rule does not explicitly limit the Commonwealth’s right
of interlocutory appeal to any particular class of pretrial orders. Rather, it
indicates that the Commonwealth may take an appeal as of right “under the
circumstances provided by law.” Id.
Here, the record reflects that the Commonwealth has included in its
notice of appeal a statement that the order on appeal dismissed all charges
and terminated the prosecution. Notice of Appeal, 1/7/16. Therefore,
pursuant to Pa.R.A.P. 311(d), this Court has jurisdiction to hear this appeal
from the trial court’s interlocutory order. See Commonwealth v. Jackson,
10 A.3d 341, 344 n.2 (Pa. Super. 2010) (noting the Superior Court may not
inquire into the grounds for the Commonwealth’s good faith certification)
(citing Commonwealth v. Moser, 999 A.2d 602, 605 n.2 (Pa. Super. 2010)).
We thus turn to the claims raised in this matter.
The Commonwealth presents the following issue for our review:
I. WHETHER THE LOWER COURT’S DISMISSAL OF CHARGES WAS
A MANIFEST ABUSE OF DISCRETION WHERE THE
COMMONWEALTH ESTABLISHED A PRIMA FACIE CASE FOR ALL
CHARGES AND THE COURT’S RESOLUTION WAS CONTRARY TO
THE STANDARDS FOR ANALYIZING [sic] SUFFICIENCY OF
EVIDENCE TO SUPPORT A PRIMA FACIE CASE?
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Commonwealth’s Brief at 4.5 The Commonwealth contends that the trial
court’s order dismissing all charges was in error because the Commonwealth
allegedly presented sufficient evidence to establish a prima facie case for each
of the offenses dismissed.
The evidentiary sufficiency, or lack thereof, of the Commonwealth’s
prima facie case for a charged crime is a question of law; this Court’s review
is plenary. Commonwealth v. Karetny, 880 A.2d 505, 513 (Pa. 2005)
(citing Commonwealth v. Huggins, 836 A.2d 862 (Pa. 2003)). 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 its
pretrial, prima facie burden to establish the elements of a charged crime. Id.
In Huggins, our Supreme Court explained:
At the pre-trial stage of a criminal prosecution, it is not
necessary for the Commonwealth to prove the defendant’s guilt
beyond a reasonable doubt, but rather, its burden is merely to put
forth a prima facie case of the defendant’s guilt. A prima facie
case exists when the Commonwealth produces evidence of each
of the material elements of the crime charged and establishes
sufficient probable cause to warrant the belief that the accused
committed the offense. The evidence need only be such that, if
presented at trial and accepted as true, the judge would be
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5 We note that, excluding tables and appendices, the Commonwealth’s brief
is forty-seven pages long. Pursuant to Pa.R.A.P. 2135, a principal brief is
limited to 14,000 words, and when the brief exceeds thirty pages, the
appellant must certify with the appellate court that the brief complies with the
word limitation. See Pa.R.A.P. 2135(d) (stating that “[a]ny brief in excess of
the stated page limits shall include a certification that the brief complies with
the word count limits”). The Commonwealth’s brief includes a certification of
compliance indicating that the word count for the entire document is 10,652
words.
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warranted in permitting the case to go to the jury. Moreover,
“[i]nferences 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.”
Id. at 866 (citations omitted).
However, we have also noted that “suspicion and conjecture are not
evidence and are unacceptable as such.” Commonwealth v. Packard, 767
A.2d 1068, 1071 (Pa. Super. 2001). “[W]here the Commonwealth’s case
relies solely upon a tenuous inference to establish a material element of the
charge, it has failed to meet its burden of showing that the crime charged was
committed.” Commonwealth v. Wojdak, 466 A.2d 991, 997 (Pa. 1983)
(emphasis in original).
PERJURY
The Commonwealth first argues that the trial court erred in determining
that the Commonwealth failed to present sufficient evidence to support a
prima facie finding that Appellee committed the crime of perjury.
Commonwealth’s Brief at 18-33. Specifically, the Commonwealth asserts that
it “charged [Appellee] with perjury under subsection (a) because he made
false statements under oath during his grand jury testimony which were
material to the [Risoldi family’s] insurance claim related to window treatments
and the grand jury’s investigation of that claim.” Id. at 19-20. The
Commonwealth further contends:
The basis of the perjury charge was [Appellee’s] testimony
that he could not provide documentation related to the Risoldi
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window treatments because Summerdale Mills had gone
“paperless” in 2006 and his computer hard drive containing the
electronic documents as well as the back-up system had failed.
Specifically, [Appellee] testified before the grand jury on
September 16, 2014, that he “looked through any of the boxes
that had files that I could find to try to comply with the
subpoena.[”] In this purportedly exhaustive search, [Appellee]
produced only 68 pages of documents which consisted solely of
diagrams related to window treatment fabrication. He further
acknowledged that he did not produce any canceled checks,
invoices, estimates, or similar documents.
On October 9, 2014, members of the [Office of the Attorney
General] executed a search warrant at Summerdale Mills. During
the search, over 450 pages of documents related to transactions
with the Risoldi’s [sic] were recovered from Summerdale Mills
including 189 pages of Risoldi documents recovered from an office
with [Appellee’s] own name on the door. These documents
included, inter alia, invoices, work orders, estimates, shipping
logs, payment logs, and installation logs for the Risoldi’s [sic].
Significantly, among the documents provided to the [Office of the
Attorney General] pursuant to the subpoena were copies of
documents subsequently located among the same files as
documents not produced.
Viewed in the light most favorable to the Commonwealth as
required, it is reasonable to infer that [Appellee] selected a small
portion of documents to produce while holding the majority of
them, notably the most relevant documents, [sic] back. It
unequivocally establishes that [Appellee] knowingly provided false
testimony concerning the number of documents he was able to
recover.
Id. at 20-21 (citations to reproduced record omitted) (emphasis in original).
Thus, the Commonwealth bases its argument on the allegation that Appellee
was untruthful in his testimony regarding the production of documents.
The Crimes Code defines perjury, in relevant part, as follows:
§ 4902. Perjury.
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(a) Offense defined. — A person is guilty of perjury, a felony of
the third degree, if in any official proceeding he makes a false
statement under oath or equivalent affirmation, or swears or
affirms the truth of a statement previously made, when the
statement is material and he does not believe it to be true.
(b) Materiality. — Falsification is material, regardless of the
admissibility of the statement under rules of evidence, if it could
have affected the course or outcome of the proceeding. It is no
defense that the declarant mistakenly believed the falsification to
be immaterial. Whether a falsification is material in a given factual
situation is a question of law.
* * *
(f) Corroboration. — In any prosecution under this section,
except under subsection (e) of this section, falsity of a statement
may not be established by the uncorroborated testimony of a
single witness.
18 Pa.C.S. § 4902.
This Court has explained that perjury is more than false testimony:
The crime of perjury is not synonymous with “false
testimony”. In order to constitute the crime of perjury several
elements must be present, among which is the requirement that
the false testimony must have been material to the proceeding at
which it was made. The issue as to whether false testimony is
material to the proceeding is a question of law.
A false statement, made under oath, is material “if it could
have affected the course or outcome of the proceeding.”
Materiality is to be determined as of the time that the false
statement was made. Furthermore, the test of the materiality of
a false statement is whether it can influence a fact-finder, not
whether it does. The fact that the false testimony was
unnecessary to accomplish the end in view will not render it
immaterial.
Commonwealth v. Lafferty, 419 A.2d 518, 521-522 (Pa. Super. 1980)
(citations omitted). We have determined accordingly that the elements of
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perjury are established if: 1) in an official proceeding; 2) under oath or
affirmation to tell the truth; 3) the defendant made a false statement knowing
it to be false; and 4) the statement was material to the matter then at issue.
Id.
The trial court set forth the following findings of fact pertaining to
Appellee’s grand jury testimony:
13. [Appellee] appeared before the 35th Statewide Investigating
Grand Jury on September 16, 2014, pursuant to a subpoena which
also directed the production of documents.3 Pg. 3.
3 The following findings are from the transcript of that
proceeding. As [Appellee’s] testimony is the basis of
the perjury charge, it is no longer subject to the
secrecy provisions of Grand Jury testimony.
14. Exhibit C-147 is the transcript of [Appellee’s] appearance
before the 35th Statewide Investigating Grand Jury on September
16, 2014 and Exhibit C-200 is the audio recording of his
appearance.
15. The property at 8101 Frankford Avenue, Philadelphia has
signage for both Philadelphia Draperies, LLC and Summerdale
Mills. Pg. 4.
16. [Appellee] is the owner of Philadelphia Draperies, LLC. Pg. 5
17. Philadelphia Draperies, LLC currently does business as
Summerdale Mills. Pg. 5
18. [Appellee] has owned the business (Summerdale Mills) since
2014. Pg. 5.
19. His brother-in-law, Abraham Reichbach, was the prior owner
of Summerdale Mills. Pg. 5
20. [Appellee] knows Claire Risoldi who was a customer of
Summerdale. Pg. 8.
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21. He first met her in 2013. Pg. 8.
22. After the 2010 fire at the Claire Risoldi residence, he did a
portion of the (restoration/replacement) work, not the entire
house. Pg. 9, l. 14 - pg. 10, l. 7.
23. Pursuant to the subpoena, he produced 68 pages of
documents. See Exhibit C-86. Pg. 11.
24. The produced items were essentially fabrication diagrams.
25. [Appellee] did not produce cancelled checks, invoices, etc. as,
“I don’t have them.” Pg. 12.
26. He didn’t have them as
“Well, our computer hard drive, which he had
everything financial, which had all the orders,
invoices, everything, that hard drive died at the end
of April, beginning of May of this past year. And then
we called in several companies to try and restore it.
And they were unable to do that. And then we sent it
out to a company to see if they could restore it. They
recently responded that it was not able to be
recovered. And that was all the data that had been
passed on to me from 2006 on. We relied on that.”
Pg. 12, l. 24 - Pg. 13, l. 9.
27. He does not have access to the pre-January 2014 financial
records as they were with the prior owner. Pg. 15.
28. [Appellee] requested access to the records but the prior owner
did not provide them. Pg. 15 -16.
29. He rented space in the Summerdale Mills facility between
2010-2013. Pg. 17.
30. His brother-in-law gave him the business (Summerdale Mills).
Pg. 18.
31. [Appellee] does not have access to [previous] Summerdale
Mills bank accounts as he opened new accounts. Pg. 18.
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32. He did not speak to the former owner or ask questions of him,
as per “pg. 21, ll. 13-15.”
“Q Hey, Abe, do you remember who did what for Mrs.
Risoldi’s fire when we were replacing the drapes for
her?
A No. I didn’t.
Q Is there a reason you didn’t ask him about that?
A Yes. Because I don’t want to testify secondhand
something that someone tells me that I don’t know
that I wasn’t a witness to.
Q You did not even bother asking him?
A I did not.”
Pg. 21, ll. 7-17.
33. He was at Claire Risoldi’s residence in October 2013 to check
the installation of material. This was approximately a week before
the 2013 fire. Pg. 23.
34. [Appellee] was unaware of the 2009 fire at Claire’s residence
until the fire of October 22, 2013. Pg. 23.
35. When he did work for Summerdale Mills, he did not know the
identity of the customer as,
“Q And so you are saying, from these records, you
won’t be able to identify which of it pertained to Mrs.
Risoldi’s order?
A No. I can’t.
Q Why is that?
A In this business - and I do it now - I don’t give my
workrooms the customers’ names because I don’t
went [sic] them soliciting work or going and giving
them to another decorator. So it was always a work
order number. And I can - it would accumulate, like I
said, by work order number when we were doing what
we worked on. And then we would invoice
Summerdale.”
Pg. 27, ll. 2-14.
36. [Appellee] is aware that Claire Risoldi is in the process of
rebuilding her house. Pg. 35.
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37. He does not know if Summerdale Mills has given Claire an
estimate. Pg. 36.
38. Following the fire of October 22, 2013, the drapes from Claire’s
home were taken to Summerdale Mills (for storage). Pg. 44.
39. The drapes were returned to the Risoldi’s. Pg. 48.
40. [Appellee] spoke to Claire after the fire about a new order.
Pg. 52.
41. Claire spoke to his sales person, Beata. Pg. 35.
42. He did not know if Beata gave Claire any replacement pricing.
Pg. 36.
Trial Court Opinion, 12/29/15, at 3-6.
The trial court addressed the lack of evidence to set forth a prima facie
case that Appellee committed the crime of perjury as follows:
[Appellee] was held for court on a violation of 18 Pa.C.S.A.
§ 4902(a). This offense requires that defendant make a false
statement under oath or affirm the truth of a statement previously
made when the statement is material and he does not believe it
to be true.
The record reveals that [Appellee] met with the AG on
September 2, 2014 prior to his Grand Jury appearance and made
statements. The record does not establish what those statements
were, whether they were made under oath or equivalent
affirmation, whether they were recorded, etc. See the Grand Jury
Notes of Testimony, pg. 9, line 14 through pg. 11, line 5 for the
exchange between the AG and [Appellee] as to what [Appellee]
had or had not said during the meeting of September 2.
[Appellee] was under oath when he testified before the
Grand Jury.
I had the luxury of being able to read and re-read the Grand
Jury transcript. I did so as I was shocked by the manner in which
[Appellee] was questioned. What was intended to be an inquiry
into what [Appellee] did or did not know or did or did not do took
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on the aspect of an inquisition. Present before the Grand Jury
were three Deputy AGs. A fair read of the testimony reveals AGs
who were alternately frustrated by or disbelieving of [Appellee’s]
responses. In fact, it is fair to conclude that they thought they
were being “jerked around.” The reaction to this perceived
“jerking around” was unfortunate. Instead of stepping back,
taking a deep breath and directing narrow questions to defendant,
one of the AGs let his displeasure get the better of him. As a
professional courtesy to the offending AG, not Mr. Augenbraun, I
do not name him or set out in detail his comments. I do so as I
realize his comments were out of character and motivated by his
frustration. Instead, I note them in a footnote.5 No witness
should be subjected to such comments, comments that would not
be uttered in a judge-supervised proceeding. Further, I note my
disapproval of multiple attorneys questioning a witness whenever
they feel the need to jump in and do so. This practice made an
already confusing examination even more so and gave the
appearance of a “tag team” wrestling match. The fact that many
of the questions posed were compound questions did not help and
made it difficult to determine exactly what the witness was
responding to.
5 Examples of what I consider to be unprofessional
questions or comments to [Appellee’s] responses can
be found at N.T., pg. 14, 11. 3-9; pg. 37, 11. 2-20;
pg. 38, 1. 7; pg. 39, 1. 20 and pg. 58, 11. 1-3.
The AG failed to establish any variance between [Appellee’s]
comments on September 2 and his Grand Jury testimony as there
was no evidence presented as to what he said on September 2.
As such, this supposed variance cannot form the basis of the
perjury charge.
The focus of the AG inquiry before the Grand Jury was
[Appellee’s] failure to properly and timely respond to its
subpoena. See letter of August 15, 2014, attached hereto as
Exhibit “A.” This issue requires an analysis of what responsibility
a successor owner has to retain and/or search through records of
the prior owner. The AG implicitly asserts that a successor owner
has a duty to maintain and produce records created at a time prior
to his ownership. Alternatively, the AG suggests that if the
records are on the premises and can be accessed, there is a duty
to produce them. The AG cites no authority for this position, nor
do I believe they can. The fact that the AG believes the failure of
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computers on which records might exist is too convenient to be
true or that [Appellee] cannot give a street address for his
brother-in-law or computer consultant is not credible, is irrelevant
to the duty to produce analysis. The issue is what was he in legal
possession of and required to produce. To ask the question is to
answer it. [Appellee] was not in legal possession of Summerdale’s
pre-2014 records and had no duty to produce them. A simple
example will make my point. When I came on the bench, I left
my old client files stored in the basement of a building I owned. I
then rented the building to a third party who had access to my
basement. I doubt the third party or anyone else for that matter
believed he could exercise control over the files and certainly could
not be compelled to produce them as they were not his. In fact,
were he to take possession of them, he would arguably be
committing a theft. [Appellee] was in this very position. However,
before even needing to consider this scenario, his answers clearly
reveal that he provided what he thought he was obligated to
produce and/or that which he thought was in his control. When
informed that his interpretation was erroneous, he indicated that
he would comply to the extent possible. As such he made no false
representations. In reaching my conclusion that [Appellee] had
no ownership of or control over the Summerdale records pre-
2014, I have considered the civil case law as to “successor
liability” as it is somewhat analogous. “Successor liability” focuses
on whether the transferee can be responsible for the debts or
liabilities of the transferor (here, the records) SIMPLY BECAUSE IT
ACQUIRED THE SELLER’S PROPERTY. See Johnson v. American
Standard, 8 A.3d 318 (Pa. 2010). The general rule is non-liability
unless credible evidence is produced to overcome it. If a
transferee cannot be responsible for debt, etc., it most certainly
can’t be responsible to maintain or produce records of the
transferor. The exceptions to the general rule can be found at
Johnson, 8 A.3d at 322, fn 1. A closer analogy is the criminal law
relating to possessory offenses. To be liable as a possessor, one
must have actual or constructive possession of the item and the
intent to control the item. The fact that the item is in an area that
defendant has access to does not establish his control over it, let
alone his intent to possess it. There was no evidence, direct or
circumstantial, of [Appellee’s] intent to possess or control the pre-
2014 documents of Summerdale. As the pre-2014 Summerdale
records were not [Appellee’s], he had no duty to produce them
and was improperly held on the perjury count.
Trial Court Opinion, 12/29/15, at 9-12.
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After thorough review of the record, we conclude that the trial court
correctly determined the Commonwealth failed to present a prima facie case
that Appellee committed perjury while testifying before the grand jury. Thus,
there is no support for the Commonwealth’s assertion that “it is reasonable to
infer that [Appellee] selected a small portion of documents to produce while
holding the majority of them, notably the most relevant documents, back.”
Commonwealth’s Brief at 21. The Commonwealth would have us conclude
that, because documents that were not turned over by Appellee pursuant to
the subpoena were discovered during the subsequent execution of a search
warrant, Appellee knowingly lied about the existence of the documents.
However, it is our determination that the Commonwealth failed to set forth
sufficient evidence beyond mere suspicion that Appellee had any knowledge
of the existence of the documents that were discovered during the execution
of the search warrant.
Furthermore, there is no evidence beyond mere conjecture that Appellee
made false statements regarding his inability to present the subpoenaed
documentation to the grand jury or that he made purportedly false statements
knowingly. Suspicion and conjecture are not evidence and are unacceptable
as such. Packard, 767 A.2d at 1071. Indeed, review of the transcript of
Appellee’s testimony before the grand jury reflects that Appellee provided
thorough explanations pertaining to the basic operation of the business he
received from his brother-in-law approximately nine months earlier, his lack
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of knowledge and access regarding the business’s bank accounts prior to
Appellee’s ownership, his reasons for producing a limited number of
documents, and the difficulty in locating additional documents. N.T., 9/16/14,
at 3-82. There is no indication in the record that Appellee knew that his
statements regarding his inability to present additional documentation
pursuant to the subpoena were false. Consequently, the Commonwealth relies
solely upon a tenuous inference to establish this element of perjury. Therefore,
the Commonwealth has failed to meet its burden showing that a crime was
committed. Wodjak, 466 A.2d at 997. Hence, we conclude the trial court
properly determined that the Commonwealth failed to set forth a prima facie
case with regard to the charge of perjury
CRIMINAL CONSPIRACY
The Commonwealth next argues that the trial court erred in concluding
that the Commonwealth failed to establish a prima facie case that Appellee
committed the crime of criminal conspiracy to commit insurance fraud.
Commonwealth’s Brief at 33-40. The Commonwealth essentially asserts that,
because Appellee’s attorney received documents that had been delivered to
AIG, Appellee was somehow involved in the alleged effort of the Risoldi family
to defraud AIG. Id.
Before we may review the Commonwealth’s claim, we observe that the
fundamental tool for appellate review is the official record of the events that
occurred in the trial court. Commonwealth v. Preston, 904 A.2d 1, 6 (Pa.
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Super. 2006) (citing Commonwealth v. Williams, 715 A.2d 1101, 1103 (Pa.
1998)). The law of Pennsylvania is well settled that matters which are not of
record cannot be considered on appeal. Id. Commonwealth v. Bracalielly,
658 A.2d 755, 763 (Pa. 1995); Commonwealth v. Baker, 614 A.2d 663,
672 (Pa. 1992); Commonwealth v. Quinlan, 412 A.2d 494, 496 (Pa. 1980).
A certified record consists of the “original papers and exhibits filed in
the lower court, paper copies of legal papers filed with the prothonotary by
means of electronic filing, the transcript of proceedings, if any, and a certified
copy of the docket entries prepared by the clerk of the lower court[.]”
Pa.R.A.P. 1921 “We can only repeat the well established principle that ‘our
review is limited to those facts which are contained in the certified record’ and
what is not contained in the certified record ‘does not exist for purposes of our
review.’” Commonwealth v. Brown, 161 A.3d 960, 968 (Pa. Super. 2017)
(quoting Commonwealth v. B.D.G., 959 A.2d 362, 372 (Pa. Super. 2008)).
Our law is unequivocal that the responsibility rests upon the
appellant to ensure that the record certified on appeal is complete
in the sense that it contains all of the materials necessary for the
reviewing court to perform its duty. Commonwealth v.
Kleinicke, 2006 Pa. Super. 48, 895 A.2d 562, 575 (Pa. Super.
2006) (en banc). In [Preston], we explained that to facilitate an
appellant’s ability to comply with this requirement, our Supreme
Court adopted the following procedural rule effective June 1,
2004:
The clerk of the lower court shall, at the time of the
transmittal of the record to the appellate court, mail a
copy of the list of record documents to all counsel of
record, or if unrepresented by counsel, to the parties
at the address they have provided to the clerk. The
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clerk shall note on the docket the giving of such
notice.
Pa.R.A.P. 1931(d). As the explanatory comment to Rule 1931
indicates, if counsel (or a party) discovers that anything material
has been omitted from the certified record, the omission can be
corrected pursuant to the provisions of Rule of Appellate
Procedure 1926. Under Rule 1926, an appellate court may direct
that an omission or misstatement shall be corrected through the
filing of a supplemental certified record. However, this does not
alter the fact that the ultimate responsibility of ensuring that the
transmitted record is complete rests squarely upon the appellant
and not upon the appellate courts. Preston, [904 A.2d] at 7.
Commonwealth v. Bongiorno, 905 A.2d 998, 1000-1001 (Pa. Super. 2006)
(en banc).
In addition, in Commonwealth v. Brown, 52 A.3d 1139 (Pa. 2012),
our Supreme Court indicated that, in certain circumstances, we may consider
an item included in the reproduced record that has been omitted from the
certified record. Specifically, where the accuracy of a document is undisputed
and contained in the reproduced record, we may consider it. Id. at 1145 n.4.
See also Pa.R.A.P. 1921 Note (stating “that where the accuracy of a pertinent
document is undisputed, the Court could consider that document if it was in
the Reproduced Record, even though it was not in the record that had been
transmitted to the Court” (citing Brown, 52 A.3d at 1145 n.4)).
Our review of the certified record reflects that neither the binder nor a
copy of the purportedly fraudulent documents contained therein was included
in the certified record for transmittal to this Court. Therefore, the
Commonwealth, as the appellant, failed to ensure that a complete record is
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before this Court for review.6 Moreover, the Commonwealth failed to include
a copy of the documents from the binder in the reproduced record presented
____________________________________________
6 We observe that the certified record was received in this Court on April 28,
2016. Subsequently, on June 22, 2016, the Commonwealth filed with the trial
court an “application to supplement the record pursuant to Pa.R.A.P. 1926,”
which bore captions for this case (Superior Court No. 223 EDA 2016) and for
the case of Appellee’s co-defendant, Mark Goldman (Superior Court No. 3822
EDA 2015). In its application, the Commonwealth stated the following:
1. In order that the record may be complete in this matter, the
Commonwealth requests that [the trial court] direct that the
appellate record be supplemented with the following exhibits
admitted during the preliminary hearing:
Exhibit 47: Carl Risoldi EUO;
Exhibit 48: Carla Risoldi EUO;
Exhibit 49: Claire Risoldi EUO;
Exhibit 50: Mark Goldman EUO;
Exhibit 72: Sheila Risoldi EUO;
Exhibit 93: EUO excerpt; and
Exhibit 94: EUO excerpt.
2. The Commonwealth requests that the [trial c]ourt grant this
application and direct that the supplemental record be certified
and transmitted pursuant to Pa.R.A.P. 1926(b)(1), (c).
Application, 6/22/16, at 1-2. On June 23, 2016, the trial court granted the
Commonwealth’s application to supplement the record and directed the clerk
of courts to certify and transmit to this Court the requested exhibits. Order,
6/23/16, at 1.
Likewise, on February 1, 2018, the Commonwealth filed with the trial
court a second “application to supplement the record pursuant to Pa.R.A.P.
1926,” which bore the caption for this case (Superior Court No. 223 EDA
2016). In the application, the Commonwealth stated the following:
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to this Court. Accordingly, because we cannot conduct a thorough review of
the issue of whether the Commonwealth presented a prima facie case that
Appellee committed the crime of criminal conspiracy without reference to the
allegedly fraudulent documents delivered to his attorney by Mr. Goldman, our
review is hampered, and we are constrained to deem this issue to be waived
on appeal. However, even if we had not determined that the issue, we would
conclude that the Commonwealth’s claim fails under generally applicable legal
principles.
The crime of criminal conspiracy is set forth in Section 903 of the Crimes
Code which provides, in relevant part, as follows:
§ 903. Criminal conspiracy.
____________________________________________
1. In order that the record may be complete in this matter, the
Commonwealth requests that [the trial court] direct that the
appellate record be supplemented with the following exhibits
admitted during the preliminary hearing:
Exhibit 147: Transcript of Richard Holston’s
September 16, 2014 grand jury testimony.
2. The Commonwealth requests that the [trial c]ourt grant this
application and direct that the supplemental record be certified
and transmitted pursuant to Pa.R.A.P. 1926(b)(1), (c).
Application, 2/1/18, at 1-2. On February 5, 2018, the trial court granted the
Commonwealth’s application and directed the clerk of courts to certify and
transmit to this Court the requested transcript, which was admitted as Exhibit
147. Order, 2/5/18, at 1. Thus, when presented with the opportunity to
correct deficiencies in the record, the Commonwealth did so. However, the
Commonwealth failed to take the appropriate measures to ensure that the
certified record was complete for our review of this issue.
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(a) Definition of conspiracy. — 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; or
(2) agrees to aid such other person or persons in the
planning or commission of such crime or of an attempt
or solicitation to commit such crime.
(b) Scope of conspiratorial relationship. — If a person guilty
of conspiracy, as defined by subsection (a) of this section, knows
that a person with whom he conspires to commit a crime has
conspired with another person or persons to commit the same
crime, he is guilty of conspiring with such other person or persons,
to commit such crime whether or not he knows their identity.
(c) Conspiracy with multiple criminal objectives. — If a
person conspires to commit a number of crimes, he is guilty of
only one conspiracy so long as such multiple crimes are the object
of the same agreement or continuous conspiratorial relationship.
* * *
(e) Overt act. — No 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.
Furthermore, we have explained the following:
A conviction for criminal conspiracy, 18 Pa.C.S.A. § 903, is
sustained where the Commonwealth establishes that the
defendant entered an agreement to commit or aid in an unlawful
act with another person or persons with a shared criminal intent
and an overt act was done in furtherance of the conspiracy.
The essence of a criminal conspiracy is the common
understanding that a particular criminal objective is to be
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accomplished. Mere association with the perpetrators, mere
presence at the scene, or mere knowledge of the crime is
insufficient. Rather, the Commonwealth must prove that the
defendant shared the criminal intent, i.e., that the Appellant 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 proven 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.”
Among the circumstances which are relevant,
but not sufficient by themselves, to prove a corrupt
confederation are: (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.
Commonwealth v. Lambert, 795 A.2d 1010, 1016 (Pa. Super. 2002) (en
banc) (citations omitted).
Our review of the record reflects the trial court observed that “there was
no evidence that would support [Appellee’s] involvement in a conspiracy to
defraud.” Trial Court Opinion, 4/22/16, at 3.7 We are constrained to agree.
____________________________________________
7 In doing so, the trial court corrected its initial determination in its opinion
dated December 29, 2015, that the Commonwealth failed to prove a prima
facie case of conspiracy to commit theft by deception. In recognizing its
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First, we note that Appellee had an association with the Risoldi family
because he was the current owner of Summerdale Mills. Summerdale Mills
was the company that provided certain window treatments for the Risoldi
residence, and the Risoldi family filed an insurance claim seeking proceeds to
replace the window treatments.
Second, we observe that there is no evidence to establish that Appellee
had knowledge of the commission of a crime. Specifically, with regard to the
Commonwealth’s claim that Appellee’s “lies to the grand jury dovetail perfectly
with Claire Risoldi’s lies to AIG,” and that “[t]he identical lies establish the
agreement to defraud AIG,” Commonwealth’s Brief at 38, our review of the
certified record reflects no evidence that Appellee was aware of any alleged
lies made by Claire Risoldi to the insurance company.
Third, we consider Appellee’s presence at the scene. Again, we note
that Appellee, as the current owner of Summerdale Mills, was called to testify
before a grand jury in that capacity. However, there was not a specific scene
of the crime as contemplated in the factors set forth in Lambert. Accordingly,
we conclude that this factor is not relevant to our inquiry.
____________________________________________
previous error, the trial court stated, “The AG asserts that I had the object of
the conspiracy wrong in that I mentioned theft by deception when it was
insurance fraud. I have no recall as to why I wrote that. However, I
understood that the AG’s theory was insurance fraud and that all Defendants
were acting toward that end.” Trial Court Opinion, 4/22/16, at 3 (footnote
omitted).
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Fourth, we review Appellee’s participation in the object of the
conspiracy. As mentioned above, Appellee is the owner of Summerdale Mills,
which provided window treatments to the Risoldi family, and the family sought
insurance proceeds to replace the window treatments. In addition, Appellee
testified before the grand jury investigating the alleged insurance-fraud
scheme perpetrated by the Risoldi family. As the Commonwealth observes,
“[F]ollowing the execution of the search warrant at Summerdale Mills, co-
defendant Mark Goldman delivered a binder of documents to AIG as well as
to the [office of the Attorney General] purporting to contain records from
Summerdale Mills which included records previously claimed by both the
Risoldi’s [sic] and [Appellee] to not exist.” Commonwealth’s Brief at 35-36.
The Commonwealth further acknowledges that it “never alleged that
[Appellee] fabricated the Summerdale Mills invoices presented to AIG.” Id.
at 37. Rather, the Commonwealth contends the fact that the same invoices
that were delivered to AIG were also delivered to Appellee’s attorney is
indicative of a conspiracy between Appellee and the Risoldis. However, the
mere receipt of the allegedly fraudulent documents by Appellee’s attorney
after Appellee testified before the grand jury and after the execution of the
search warrant at his business, amounts to speculation and conjecture, which
fails to establish that Appellee was an active participant in the criminal
enterprise or that he had knowledge of a conspiratorial agreement.
Accordingly, we are left to conclude that the Commonwealth failed to furnish
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a web of evidence linking Appellee to an alleged conspiracy. Consequently,
had we not determined that this issue is waived, within the confines of the
record before us, we would conclude that the trial court properly determined
that the Commonwealth failed to set forth a prima facie case with regard to
the charge of criminal conspiracy.
INSURANCE FRAUD
The Commonwealth next argues that the trial court erred in concluding
that the Commonwealth failed to establish a prima facie case that Appellee
committed the crime of insurance fraud. Commonwealth’s Brief at 40-45. The
Commonwealth asserts that, by providing testimony and only certain
documents to the grand jury and failing to provide other documents to the
grand jury, Appellee essentially corroborated and furthered the efforts of the
Risoldi family to defraud AIG in relation to the insurance claim for replacement
of the window treatments. Id. at 43-44.
The Crimes Code defines insurance fraud, in relevant part, as follows:
§ 4117. Insurance fraud.
(a) Offense defined. - A person commits an offense if the person
does any of the following:
* * *
(2) Knowingly and with the intent to defraud any
insurer or self-insured, presents or causes to be
presented to any insurer or self-insured any
statement forming a part of, or in support of, a claim
that contains any false, incomplete or misleading
information concerning any fact or thing material to
the claim.
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18 Pa.C.S. § 4117(a)(2) (emphases added). In addition, the statute defines
the term “statement,” in part, as “[a]ny oral or written presentation or other
evidence of loss, injury or expense, including, but not limited to, any notice,
statement, proof of loss, bill of lading, receipt for payment, invoice, account,
estimate of property damages, bill for services, . . . or computer-generated
documents.” 18 Pa.C.S. § 4117(l)
It is undisputed that, absent documentation that the window treatments
had been replaced following the second fire at the Risoldi residence, AIG
refused to pay the insurance claim related to the window treatments after the
third fire. Moreover, it is undisputed that subsequent to Appellee testifying
before the grand jury and a search warrant being executed at Summerdale
Mills, Mark Goldman, a private investigator employed by the Risoldi family,
delivered a binder to AIG that contained documents purportedly relating to
the window treatments in question.
However, the Commonwealth presented no evidence that Appellee knew
that the documents contained in the binder comprised any false, incomplete,
or misleading information as required under the statute. Indeed, evidence of
the requisite knowledge cannot be inferred from our thorough reading of the
certified record. Rather, as the trial court stated, “The [Attorney General] did
not present any evidence of a Summerdale quote that was provided to the
insurer in the 2013 fire [claim]. Nor was any evidence presented that
[Appellee] aided or abetted the submission of false information to the insurer
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in the 2013 fire [claim].” Trial Court Opinion, 12/29/15, at 8. Thus, while
Appellee may have given statements to the grand jury relevant to the
existence of various documents and Appellee’s ability to provide documents
to the grand jury, there is no showing that these statements were made with
any intent by Appellee to defraud the insurer. Therefore, even if the alleged
misstatements contained in the binder were found to be material to the
insurance claim, there is no evidence that Appellee had any knowledge of what
was contained within the binder. Moreover, there is nothing in the record to
indicate that Appellee was attempting to collect any money from the insurer.
Hence, we are left to conclude, as did the trial court, that Appellee did not
have the necessary mens rea to acquire anything from the insurer. Thus, the
Commonwealth’s claim fails.
OBSTRUCTION OF JUSTICE
The Commonwealth last argues that the trial court erred in concluding
that the Commonwealth failed to establish a prima facie case that Appellee
committed the crime of obstruction of justice. Commonwealth’s Brief at 45-
46. The Commonwealth states the following:
It is the Commonwealth’s position that under the same
reasoning that a prima facie case was established for perjury, this
count of obstruction of justice was supported by sufficient
evidence to establish a prima facie case. [Appellee’s] failure to
produce the subpoenaed records and his lies under oath
demonstrated a clear intent to obstruct the grand jury’s
investigation. As argued above, the lower court’s conclusion that
[Appellee] had no duty to produce the subpoenaed records was
contrary to all standards relevant to determining whether or not a
prima facie case had been met.
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Id.
As set forth in our review of the charge of criminal conspiracy, the
Commonwealth has failed to ensure that the certified record before this Court
is complete in order that we may review the merits of this claim as well. With
regard to the charge of obstruction of justice, our review of the record reflects
that the documents Appellee actually produced pursuant to the grand jury’s
subpoena were presented in proceedings before the district magistrate as
Commonwealth Exhibit 149. N.T., 8/19/15, at 61. In addition, the documents
that were subsequently recovered during the execution of the search warrant
at Summerdale Mills were presented in proceedings before the district
magistrate as Commonwealth Exhibit 146. Id. at 12-13. However, the
Commonwealth has failed to include, in either the certified record or the
reproduced record, copies of the documents that comprised Exhibit 149, i.e.,
the documents actually secured pursuant to the subpoena. Moreover, the
Commonwealth did not seek to supplement the record to correct this specific
deficiency pursuant to Pa.R.A.P. 1926. As such, we cannot compare those
items that were voluntarily turned over pursuant to the subpoena to those
items that were subsequently recovered during the search. Accordingly, our
review of this claim is hampered, and we are constrained to conclude that this
issue is waived. Again, even if not waived, we would conclude that the
Commonwealth’s claim lacks merit under generally applicable legal principles.
The Crimes Code defines the crime of obstruction of justice as follows:
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A person commits a misdemeanor of 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
unlawful act, except that this section does not apply to flight by a
person charged with crime, refusal to submit to arrest, failure to
perform a legal duty other than an official duty, or any other
means of avoiding compliance with law without affirmative
interference with governmental functions.
18 Pa.C.S. § 5101. Our Supreme Court has explained:
In order to establish that [a defendant] obstructed the
administration of law under section 5101, the Commonwealth
must establish that: (1) the defendant had the intent to obstruct
the administration of law; and (2) the defendant used force or
violence, breached an official duty or committed an unlawful act.
Commonwealth v. Goodman, 676 A.2d 234, 235 (Pa. 1996). We observed
in Commonwealth v. Snyder, 60 A.3d 165 (Pa. Super. 2013):
In evaluating § 5101 convictions, our courts have explained that
§ 5101 is substantially based upon the Model Penal Code section
242.1. As stated in the comment to section 242.1 of the Model
Penal Code “[t]his provision is designed to cover a broad range of
behavior that impedes or defeats the operation of government.”
Id. at 175 (case citations omitted).
Our review of the record reflects the Commonwealth has failed to
establish that Appellee, who produced subpoenaed documents, had any
knowledge of the existence of the additional documents that were
subsequently seized pursuant to the search warrant. The Commonwealth’s
claim that Appellee must have known of the additional documents is mere
suspicion and conjecture. Again, suspicion and conjecture are not evidence
and are unacceptable as such. Packard, 767 A.2d at 1071. Consequently,
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the Commonwealth relies solely upon a tenuous inference to establish this
element of obstruction of justice. Without knowledge of the existence of the
additional documents, we cannot conclude that Appellee intended to obstruct
the administration of law by failing to surrender them pursuant to the
subpoena. Therefore, the Commonwealth has failed to meet its burden
showing that a crime was committed. Wodjak, 466 A.2d at 997.
Order affirmed.
Bender, P.J.E., Panella, J., Lazarus, J., and Dubow, J., join this Opinion.
Gantman, P.J., and Nichols, J., concur in the result.
McLaughlin, J., files a Concurring & Dissenting Opinion.
Stabile, J., files a Dissenting Opinion.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/31/19
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