Opinion
980 EDA 2021 J-E01004-23
09-20-2023
COMMONWEALTH OF PENNSYLVANIA Appellant v. NATHANIEL WILLIAMS
Appeal from the Order Entered April 22, 2021 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): MC-51-CR-0030428-2019
BEFORE: PANELLA, P.J., BENDER, P.J.E., LAZARUS, J., OLSON, J., STABILE, J., DUBOW, J., NICHOLS, J., McLAUGHLIN, J., and McCAFFERY, J.
OPINION
Mclaughlin, J.
The Commonwealth appeals from the order denying its motion to refile charges against Nathaniel Williams. It argues it presented sufficient evidence to establish a prima facie case of unsworn falsification to authorities, tampering with or fabricating physical evidence, tampering with public records or information, and obstructing administration of law or other governmental functions. We affirm.
18 Pa.C.S.A. §§ 4904, 4910, 4911, and 5101.
In November 2019, the Commonwealth charged Nathaniel Williams, a former Philadelphia Police Detective, with the above-mentioned crimes, which related to allegations that Williams had conducted searches of law enforcement databases using a license plate number and provided information he obtained from the searches to his cousin. In September 2020, the court held the first of the two preliminary hearings that were held in this case, and dismissed all charges. The Commonwealth filed a Notice of Refiling of Criminal Complaint, listing charges of tampering with public records, obstruction of administration of law/other government function, unsworn falsification, tampering with/fabricating physical evidence. The court held a second preliminary hearing that incorporated the testimony from the first and allowed into evidence a transcription of a police interview of Williams and certain phone records. The following is a summary of the evidence from the two hearings.
The Notice also listed official oppression, but at the preliminary hearing, the Commonwealth conceded it did not have prima facie evidence for that charge. N.T., 4/22/2021, at 61.
The prosecution presented the testimony of the owner of the car to which the license plate number pertained, Theresa Williams, and the investigating officer, Lieutenant James Clough. Theresa testified that in October 2017, Edwin Williams approached her in the parking lot of a Michaels craft store and asked for her phone number. N.T., 9/11/2020, at 6, 8. Theresa informed him she was not interested. She got in her car, and as she went to back up, she saw Edwin pull his car behind hers and sit there. Id. at 8. Theresa "felt like he was doing something behind [her] car." Id. Theresa said that a week or two later, she was at home and heard a knock on the door, and saw Edwin at the door. Id. at 9. When she opened it, she "asked him how the hell he found [her]."Id. at 10. He would not leave, so she had him write his phone number on a piece of paper. Id. She stated that a couple days later, she went to the SEPTA police department to file a report. Id. at 10-11. She testified she went to SEPTA because during one of their encounters Edwin had told her he worked for SEPTA. Id. at 9, 20, 22. She further testified that in the days following his appearance at her home, Edwin left roses and cards on her car. Id. at 14.
Theresa and Nathaniel have the same last name but are not related. To avoid confusion, we will refer to Theresa Williams by her first name.
Edwin and Nathaniel are cousins with the same last name. Again, to avoid confusion, we will refer to Edwin Williams by his first name.
Lieutenant Clough, with the Internal Affairs Division of the Philadelphia Police Department, testified that he received Theresa's complaint and investigated. Id. at 57. He stated that the investigation revealed that on October 17, 2017, Williams ran a search for Theresa's license plate number through national and state databases - NCIC and PCIC - and conducted a voter registration check. Id. at 59, 61-62. Lieutenant Clough also interviewed Williams. Id. at 77.
The NCIC is the national crime data base and the PCIC is the state crime data base. N.T., 4/22/2021, at 45.
During the interview, Williams stated that he ran Theresa's license plate in connection with a homicide investigation. He said he had seen a suspect in the homicide investigation get into a vehicle a few months before, and when he found what he believed was the vehicle the following day, he "ran that tag." N.T., 4/22/2021, at 35. He did "[a]ll kinds of cross checks," as follow ups, including "car stops, 48-A's, voters, real estate, criminal history, property ownership, and social media." Id. at 36.
Williams further stated that Edwin was his cousin and, when asked the last time he had last spoken with Edwin, he stated, "I am not sure; maybe a year or more." Id. Williams further said he did not disseminate information related to Theresa's license plate or other records to Edwin. Id. at 39-41. Lieutenant Clough testified that Williams signed each page of the interview. Id. at 29.
Lieutenant Clough testified that after the interview, he proceeded to the homicide division and procured a homicide file he needed in the investigation of Williams' searches regarding Theresa. N.T., 9/11/2020, at 77. He collected one folder, which he reviewed and found no reference to Theresa. Id. at 78. He stated that the following day, Williams called and informed the Internal Affairs Division that there was a second folder for the homicide investigation. Id. Lieutenant Clough testified he retrieved that folder and when reviewing it found "several references to [Theresa] which included a Facebook photograph, a photograph of [Theresa] and her children that was printed from Facebook," and handwritten notes on the back, with Theresa's name, "no record/no wants, 75-48A negative, no friends shared, autism supporter, the abbreviation for possibly, p-o-s-s and neighbors." Id. at 78-79. It also had Theresa's license plate number and some biographical information. Id. at 79. He stated the folder contained no other references to Theresa and for "[a] lot of the inquiries" made during the investigation and included in the file, "there [were] copies, there [were] printouts of various license plates, tags, houses that were checked. And this was the only one, the only thing that was not printed out, it was just handwritten on the back of a Facebook page." Id. at 79-80. The Commonwealth did not admit any part of the homicide file into evidence.
The Commonwealth also put into evidence phone records showing text messages between Williams and Edwin, and phone calls before and after Edwin's first encounter with Theresa. The material showed text messages from the day of the encounter, October 14, as well as October 15, and October 17, the day Williams conducted the NCIC and PCIC searches. Id. at 87-88. Further, on November 24, 2017, the day the police interviewed Edwin, Williams replaced his phone. Id. at 88. The Commonwealth did not have the actual content of the text messages. Id.
The court found the Commonwealth had failed to demonstrate the elements of the crimes by a preponderance of the evidence and denied the motion to re-file. N.T., 4/22/2021, at 77. The Commonwealth timely appealed, and a three-judge panel of this Court affirmed. In January 2023, this Court granted reargument and withdrew the prior memorandum.
The Commonwealth raises the following:
Did the [trial] court err in denying the Commonwealth's motion to refile the charges of unsworn falsification to authorities, obstructing the administration of law or other governmental function, tampering with or fabricating physical evidence, and tampering with a public record or information, where the evidence, when properly evaluated in the light most favorable to the Commonwealth, established a prima facie case that [Williams] committed each of the charged crimes?Commonwealth's Substituted Br. at 4.
Whether the Commonwealth presented sufficient evidence to establish a prima facie case is a question of law, which we review de novo. Commonwealth v. Perez, 249 A.3d 1092, 1102 (Pa. 2021). "The principal function of a preliminary hearing is to protect an individual's right against an unlawful arrest and detention." Id. (quoting Commonwealth v. McBride, 595 A.2d 589, 591 (Pa. 1991)). "[T]he Commonwealth bears the burden of establishing at least a prima facie case that a crime has been committed and that the accused is probably the one who committed it." Id. (quoting McBride, 595 A.2d at 591) (emphasis omitted).
"[A] prima facie case exists when the Commonwealth produces evidence of each of the material elements of the crime charged and establishes probable cause to warrant the belief that the accused committed the offense." Id. (citation omitted) (alteration in original). "[T]he evidence need only be such that, if presented at trial and accepted as true, the judge would be warranted in permitting the case to be decided by the jury." Id. (citations omitted). "The weight and credibility of the evidence are not factors at the preliminary hearing stage, and the Commonwealth need only demonstrate sufficient probable cause to believe the person charged has committed the offense."Id. (citations omitted).
"[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." Id. (citation omitted) (alteration in original). "The use of inferences is a process of reasoning by which a fact or proposition sought to be established is deduced as the logical consequence from the existence of other facts that have been established." Id. at 1102-03 (citation omitted). "The 'more-likely-than-not' test, must be applied to assess the reasonableness of inferences relied upon in establishing a prima facie case of criminal culpability." Id. at 1103 (citation omitted).
Accordingly, we must determine whether the Commonwealth presented a prima facie case for each of the crimes alleged - unsworn falsification to authorities, tampering with or fabricating physical evidence, tampering with public records or information, and obstruction of the administration of law or other governmental function.
Unsworn Falsification to Authorities
We will first address whether the trial court properly concluded the Commonwealth failed to establish a prima facie case of unsworn falsification to authorities. The Commonwealth maintains Williams made a written statement when he signed the interview that Lieutenant Clough had transcribed, because he adopted the words as his own. It argues that "although [Lieutenant] Clough transcribed [Williams'] answers into the document, [Williams] 'made' the statements contained therein by signing each of the six pages." Commonwealth's Substituted Br. at 14 (emphasis removed). It argues Williams knew his claim that he had not spoken with Edwin in almost a year was false, pointing out that the phone records established text messages and phone calls between Edwin and Williams two months before the interview and the communication "abruptly ceased at nearly the precise moment that" the investigation began. Id. at 15. It concludes that "[a] reasonable-indeed, the only plausible-inference from the totality of this evidence is that [Williams] manufactured the second homicide investigation file with the express objective of misleading [Lieutenant] Clough in performing his official government duties." Id.
Williams counters that there was no written statement, as required by the statute. He maintains that the fact that he signed a statement that Lieutenant Clough had memorialized the oral conversation did not transform the answers to a written statement in the meaning of the statute. He further claims the Commonwealth did not show that any statement was false.
The Commonwealth responds that prior cases have found a defendant made a written statement based on a signature on a document. It points out that in Commonwealth v. Cherpes, 520 A.2d 439, 444 (Pa.Super. 1987), the defendant had signed, but not drafted, a written financial disclosure that formed the basis of a subsequent conviction for the unsworn falsification.
A person commits the crime of unsworn falsification to authorities "if, with intent to mislead a public servant in performing his official function, he: (1) makes any written false statement which he does not believe to be true[.]" 18 Pa.C.S.A. § 4904(a)(1).
The trial court did not err in finding that the Commonwealth failed to establish a prima facie case of unsworn falsification to authorities. The Internal Affairs interview, which was conducted as an oral interview, memorialized in writing by Lieutenant Clough, and signed by Williams, does not constitute a "written false statement," under the statute. Cf. Commonwealth v. Gaithers, 13 Pa.D&C.3d 668, 671 (Pa. C.P. Montg. 1978) (defendant convicted of making an unsworn falsification to police officer where defendant gave a false identity during an interview and signed her false name on the interrogation form).
Tampering With or Fabricating Physical Evidence
A person commits tampering with or fabricating physical evidence where the person,
believing that an official proceeding or investigation is pending or about to be instituted, he:
(1) alters, destroys, conceals or removes any record, document or thing with intent to impair its verity or availability in such proceeding or investigation; or
(2) makes, presents or uses any record, document or thing knowing it to be false and with intent to mislead a public servant who is or may be engaged in such proceeding.18 Pa.C.S.A. § 4910(1)-(2).
The Commonwealth argues that the reasonable inferences from the evidence support the conclusion that Williams presented to Lieutenant Clough a fake homicide file to impede the Internal Affairs investigation. It points out that Williams presented the second file to Lieutenant Clough the day after he provided his statement. It argues that because Williams "himself claimed that the second file was a supplement to the first, official file, the evidence supported the reasonable inference that he intended that the fabricated file 'be taken as a genuine part' of the first." Commonwealth's Substituted Br. at 17. The Commonwealth argues the homicide file was a "record, document or thing" and Williams presented the folder containing information he knew to be false.
Williams maintains the Commonwealth failed to prove a prima facie case of tampering with evidence. He argues that it is "unclear how [his] addition of materials to an investigative file that he was required to compile, maintain and update constitutes either the destruction, alteration or concealment of evidence within the meaning of the statute." Williams' Substituted Br. at 24. He also points out that the Commonwealth did not present any testimony to show when the information was printed. As a result, according to Williams, it cannot prove it was printed after the Internal Affairs interview, and therefore there is no evidence he had knowledge of the official investigation at the time he allegedly printed the materials.
He further argues the Commonwealth did not show he had the requisite intent to impair the availability of the item to the proceeding or investigation. He maintains this is so because he claims he did not alter, conceal, destroy or remove evidence. Rather, in his view, "[t]he information [he] printed and placed in the homicide investigation file remained in the investigation file, and it was therefore accessible to anyone who wished to review it." Id. at 27.
The Commonwealth responds there is no indication that the definition of "alter" cannot include an addition to something, such as Williams adding the folder containing Theresa's information to the homicide file.
We conclude the court did not err in dismissing this charge. The Commonwealth failed to present prima facie evidence that the information regarding Theresa was added to the file after Williams learned of the Internal Affairs Division's investigation. Rather, the IAD detective merely testified he retrieved the file, and the prosecution presented no testimony from anyone that he obtained the entire file when he initially procured it. That the second file was not included with the first is not evidence, even at a prima facie level, that the material was added after Williams learned of the investigation. Tampering With Public Records or Information
The Commonwealth next challenges the dismissal of the charge of tampering with public records or information. The Commonwealth charged Williams under Section 4911(a)(1), which provides that a person commits the offense if he:
See N.T., 4/22/2021, at 60.
(1) knowingly makes a false entry in, or false alteration of, any record, document or thing belonging to, or received or kept by, the government for information or record, or required by law to be kept by others for information of the government[]18 Pa.C.S.A. § 4911(a)(1). Because the Commonwealth charged Williams with tampering with public records graded as a third-degree felony, it also needed to prove he intended to "defraud or injure." Id. at § 4911(b) (providing "[a]n offense under this section is a misdemeanor of the second degree unless the intent of the actor is to defraud or injure anyone, in which case the offense is a felony of the third degree").
In its substituted brief, the Commonwealth argues it presented a prima facie case under Section 4911(a)(2). That subsection provides that a person commits the offense of tampering with public records or information if the person "makes, presents or uses any record, document or thing knowing it to be false, and with intent that it be taken as a genuine part of information or records referred to in paragraph (1) of this subsection." 18 Pa.C.S.A. § 4911(a)(2). But the Commonwealth did not charge Williams under this subsection. Rather, it charged him under Section 4911(a)(1). See Trial Disposition and Dismissal Form, dated Sept. 11, 2020 (stating charge dismissed was 18 Pa.C.S.A. § 4911(a)(1); N.T. 4/22/2021, at 59 (stating that for the public records charge, the Commonwealth was arguing "the Facebook printout that was added to the file the day after his interview is the record that was fabricated and created and inserted into the file to try to make it appear as though the search was legitimate"); Brief in Support of Commonwealth's Refile, at 8 (arguing that for tampering with public records, it must prove "he knowingly made a false entry in, or false alteration of, any record, document or thing belonging to, or received or kept by, the government for information or record, or required by law to be kept by others for information of the government"). We therefore will not address its argument that it presented a prima facie case under that subsection, that is, we will not address the Commonwealth's argument that he "presented" the file to the investigator.
The Commonwealth argues the reasonable inferences from the evidence support the conclusion that Williams manufactured the second homicide file after he learned of the investigation, and that he presented the file to Lieutenant Clough with the intent to mislead the Internal Affairs investigation.
It notes that he presented the file days after providing his statement. It argues the homicide file was a "record, document or thing" kept by the government for information or record, and Williams presented the folder containing information he knew to be false and with the intent that the Internal Affairs Division take it as a genuine part of the homicide file. The Commonwealth relies on Commonwealth v. Barger, 375 A.2d 756, 764 (Pa.Super. 1977), which held a state police accident investigation report is a "record, document or thing" under Section 4911(a)(1).
Williams maintains the Commonwealth failed to prove a prima facie case of tampering with public records or information because it failed to establish the homicide file qualified as a public record within the purview of the statute. He relies on elites v. Upper Yoder Township, 485 A.2d 724, 727 n.5 (Pa. 1984), where the Pennsylvania Supreme Court concluded a police chief's destruction of logbooks did not constitute a violation of Section 4911. He argues the Commonwealth failed to present evidence as to how the homicide files are stored or maintained or whether police would be required to provide the contents of the file to anyone. He also maintains the Commonwealth failed to show he made a false entry or alteration in the file. He also faults the Commonwealth for failing to elicit testimony about the materials that are usually included in a homicide file, arguing that the inclusion of his own notes and computer printouts cannot be a false entry or alteration. He further argues that the Commonwealth failed to establish that he had an "intent to defraud or injure" because such an intent required pecuniary or property loss or the loss of an important right.
The Commonwealth replies that the intent to defraud does not entail such a requirement. Rather, it maintains that falsifying a homicide could defraud or injure several individuals and organizations, including the Philadelphia Police Department, by undermining the public trust; the citizens of Philadelphia, who have a right to effective and honest investigation; and Theresa, who was falsely implicated by Williams' actions. It also maintains Williams defrauded the Internal Affairs Division by deceiving it in order to avoid punishment.
The trial court did not err in dismissing this charge. The homicide file is a "public record or thing," as contemplated by the statute, as it is kept by the government and is something that police officers are required to compile. In Barger, 375 A.2d at 763-64, this Court found that a police accident report was a public record. We pointed out the all-inclusive language of the statute, and that the report was kept by the police who were required to distribute it to specified individuals and agencies.
In elites, relied on by Williams, the Pennsylvania Supreme Court found a police officer could not be disciplined for destroying logbooks. In doing so, it found the Board of Supervisors "erred in concluding that [the] appellant's destruction of the old log books constituted a violation of 18 Pa.C.S.A. § 4911." 485 A.2d at 727 n.5. It reasoned there was no evidence "concerning the nature of the log books" that "impl[ied] a duty to keep them for future use." Id. at 727. It pointed out the logbooks were like diaries and "there was no evidence that the books contained any information that was essential to the legal recordkeeping requirements of a police department" and there were separate records kept for arrests. Id. Here, the homicide file is more akin to the accident report in Barger than the logbooks in elites.
Nonetheless, the Commonwealth failed to present a prima facie case that Williams made a false entry or alteration to the file. As a homicide detective working on the investigation, he added his own notes and computer printouts to the file. The Commonwealth's assertion that Williams "falsified" the second file is mere supposition and speculation. There is nothing of record to show that such was the case. The Commonwealth failed to adduce prima facie evidence of tampering with a public record.
Obstructing Administration of Law or Other Governmental Functions
The final charge at issue is obstructing administration of law or other governmental functions. The Commonwealth argues Williams intentionally obstructed the Internal Affairs investigation by lying about his contact with Edwin and presenting a false homicide file, which was a breach of his official duty. It further contends that Williams committed "any other unlawful acts" when he committed unsworn falsification and tampering with evidence and with public records.
Williams counters that the Commonwealth failed to show Williams lied to Lieutenant Clough. Williams asserts that the question Lieutenant Clough asked was when was the last time Williams "spoke" with Edwin, and the evidence was that Williams and Edwin had texted each other, not spoken with each other. He claims the phones calls either were not answered or went to voice mail, as they were under two minutes. He further argues that "mere lying" in response to police questioning does not violate Section 5101. Williams contends the alleged falsification of the homicide file cannot support the charge because the Commonwealth provided no evidence about the dates the documents were printed and did not introduce the file itself to show the information concerning Theresa did not belong there.
Subject to a proviso not at issue here, the crime of obstructing administration of law or other governmental functions occurs when a person "intentionally obstructs, impairs or perverts the administration of law or other governmental function by . . . breach of official duty, or any other unlawful act":
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.A. § 5101.
In Commonwealth v. Shelly, the defendant was convicted of obstructing administration of law after the trial court found his providing a false name to police officers constituted an "unlawful act." 703 A.2d 499, 503 (Pa.Super. 1997). We reversed because "no statute . . . criminalizes 'mere lying' in response to police questioning," and the obstruction statute - Section 5101 - did not "fill this gap." Id. at 504. We reasoned that although the Crimes Code enumerates offenses where "falsity is punishable," each provision contained elements not in the obstruction statute. Id. We pointed out that statutes making it a crime to give false information to police included other elements, such as having the intent to implicate someone else in the crime. See id. at 504 n.6. We concluded that, as there were sections dealing with falsity to police, "we cannot presume the legislature's failure to include this most common scenario to be the result of a desire to penalize it in the 'catchall' of section 5101." Id. at 504.
We conclude the trial court did not err in dismissing the obstruction charge. Lying during the Internal Affairs interview cannot be the basis of an obstruction charge, as mere lying during an interview, without more, does not constitute a violation of any codified crime or civil statute. It therefore is not an "unlawful act." See id. Although Shelly's holding that providing false identification to law enforcement is not a crime has been superseded by statute, that does not undermine its central holding that the "unlawful act" element of Section 5101 can only be satisfied by allegations setting forth a violation of codified law. The allegation that Williams added information to the homicide file - a file that he would use to conduct the investigation - cannot constitute "any other unlawful act."
See 18 Pa.C.S.A. § 4914.
Moreover, because the Commonwealth did not establish a prima facie case for the other crimes charged, those charges do not meet the "any other unlawful act" catchall provision. Although the Commonwealth maintains the alleged addition to the homicide file was a breach of official duty, it has provided no legal authority to support this claim, and we are aware of none. We therefore affirm.
Our decision in this case is based strictly on the record presented and is no reflection on the seriousness of the allegations.
Order affirmed.
President Judge Panella, Judge Lazarus, Judge Nichols and Judge McCaffery join the opinion.
Judge Olson files a dissenting opinion in which President Judge Emeritus Bender, Judge Stabile and Judge Dubow join.
DISSENTING OPINION
OLSON, J.
I believe that the Commonwealth presented sufficient evidence at the preliminary hearing stage to hold Appellee, Nathaniel Williams, for court on one count each of unsworn falsification (18 Pa.C.S.A. § 4904(a)), tampering with or fabricating physical evidence (18 Pa.C.S.A. § 4910), tampering with public records (tier-3 felony) (18 Pa.C.S.A. § 4911), and obstructing administration of law or other governmental function (18 Pa.C.S.A. § 5101). Therefore, I must respectfully dissent.
The learned Majority sets forth the proper standard of review in determining whether the Commonwealth met its burden of proof in presenting a prima facie case against Appellee during the preliminary hearing stage. Majority Opinion at 6-7. Although accurately reciting the legal principles, the Majority deviates from the well-settled law in concluding that the Commonwealth failed to meet its burden. Instead, the Majority holds the Commonwealth to a more stringent standard; i.e. the Commonwealth is required to disprove or rebut interpretations of the evidence that favor Appellee, even when the evidence presented provides for a reasonable inference that a crime was committed and that Appellee was the person who probably committed the crime. In my view, this is error.
Our Supreme Court has repeatedly provided that a "preliminary hearing is not a trial. ... At this hearing, the Commonwealth bears the burden of establishing at least a prima facie case that a crime has been committed and that the accused is probably the one who committed it." Commonwealth v. Perez, 249 A.3d 1092, 1102 (Pa. 2021), quoting Commonwealth v. McBHde, 595 A.2d 589, 591 (Pa. 1991) (emphasis omitted). Moreover,
[a] prima facie case exists when the Commonwealth produces evidence of each of the material elements of the crime charged and establishes probable cause to warrant the belief that the accused committed the offense. ... A judge at a preliminary hearing is not required, nor is he authorized to determine the guilt or innocence of an accused; his sole function is to determine whether probable cause exists to require an accused to stand trial on the charges contained in the complaint. ... The weight and credibility of the evidence are not factors at the preliminary hearing 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. The use of inferences is a process of reasoning by which a fact or proposition sought to be established is deduced as the logical consequence from the existence of other facts that have been established. The more-likely-than-not test
must be applied to assess the reasonableness of inferences relied upon in establishing a prima facie case of criminal culpability.Perez, 249 A.3d at 1102-1103 (brackets and quotation marks omitted). "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 make out the elements of a charged crime." Commonwealth v. Karetny, 880 A.2d 505, 513 (Pa. 2005).
In applying these legal principles to the facts of this case, I believe that the Commonwealth clearly met its burden of establishing a prima facie case that Appellee committed the four offenses charged. Accordingly, I would reverse the trial court so that all four charges against Appellee may proceed.
In analyzing whether the Commonwealth met its burden of proof, we must begin with the pertinent facts that were established during the two preliminary hearings on September 11, 2020 and April 22, 2021.
As noted by the Majority, at the preliminary hearing on September 11, 2020, the trial court dismissed all charges against Appellee. The Commonwealth refiled the charges and a second preliminary hearing was held on April 22, 2021. At the April 2021 hearing, the testimony from the September 2020 hearing was incorporated and the Commonwealth introduced a transcription of a police interview of Appellee and telephone records. Majority Opinion at 1-2.
On October 14, 2017 at approximately 12:00 p.m., Theresa Williamswas in the parking lot of Michaels craft store. N.T. Preliminary Hearing, 9/11/20, at 6. While in the parking lot, Edwin Williams ("Edwin") approached Ms. Williams and tried to start a conversation. He asked for her phone number and indicated that he wanted to take her out, however, Ms. Williams stated that she was not interested. Id. at 8. During the brief conversation, Edwin told Ms. Williams that he was a bus driver for the Southeastern Pennsylvania Transportation Authority ("SEPTA"). Id. at 9. Ms. Williams proceeded to get into her vehicle at which time Edwin walked away. As Ms. Williams went to back out, Edwin came up behind her in his vehicle and stopped. He was looking in the direction of her vehicle. Id. at 8-9.
All parties agree that Theresa Williams is not related to Appellee or Edwin Williams who was charged as a co-defendant. The charges against Edwin Williams are not at issue in this case.
Approximately a week or two later, Edwin arrived at Ms. Williams' home and knocked on her door. Ms. Williams opened the door "and asked how the hell he found [her]." Id. at 9-10. Edwin responded that "he had his ways." Id. at 13-14. Edwin persisted in talking with Ms. Williams, so in an effort to get him to leave, she asked him to write his name and telephone number on a piece of paper. Id. at 10. Edwin then left.
During the next few weeks, Edwin continued to contact Ms. Williams indirectly by leaving a greeting card and roses on her vehicle. Id. at 16. Eventually, Ms. Williams filed a report with the SEPTA Police Department which, in turn, notified the Philadelphia Police Department. Id. at 10-11, 28.
On November 2, 2017, Lieutenant James Clough of the Internal Affairs Division of the Philadelphia Police Department was assigned to investigate the complaint filed by Ms. Williams. Id. at 56, 59. In the complaint, Ms. Williams alleged that someone had approached her and she suspected that her vehicle license tag had been "run which led to someone coming to her home." Id. at 58. On November 7, 2017, Lieutenant Clough requested all computerized inquiries that were made by Appellee on October 17, 2017 to determine whether these computer systems were accessed to obtain information about Ms. Williams. Id. at 59, 61. These systems included the National Crime Information Center ("NCIC"), the Police Crime Information Center ("PCIC") and the Pennsylvania Justice Network ("JNET"). Lieutenant Clough discovered that, on October 17, 2017 (three days after Edwin first approached Ms. Williams in the Michaels craft store parking lot), Appellee accessed Ms. Williams' license plate tag at 3:35 p.m. and her voter registration at approximately 3:37 p.m. At 3:42 p.m., he searched Ms. Williams' name on JNET. Id. at 61-62, 64. Within days after these searches, Edwin appeared at Ms. Williams' doorstep.
Appellee used his police payroll number to access these computer systems; accordingly, Lieutenant Clough audited the systems that had been accessed by Appellee's police payroll number. N.T. Preliminary Hearing, 9/11/20, at 59.
As part of his investigation, Lieutenant Clough interviewed Edwin on November 24, 2017. During the interview, Edwin claimed that he did not know Appellee well. In fact, he stated that he only met Appellee one time when a friend introduced them at a party. Id. at 74. He stated that they merely shook hands. Id. at 75. Edwin stated that he never spoke with Appellee again and that they never spoke to each other via telephone or text messages. Id. at 74-75.
During the September 2020 preliminary hearing, Lieutenant Clough read into the record Edwin's written statement which Edwin signed acknowledging that the statement was true and correct to the best of his knowledge. N.T. Preliminary Hearing, 9/11/20, at 68-76.
On December 27, 2017, Lieutenant Clough interviewed Appellee.Appellee stated that he was employed as an officer with the Philadelphia Police Department in the Homicide Division. N.T. Preliminary Hearing, 4/22/21, at 32. He claimed that he was investigating a homicide and, during the investigation he witnessed the target of the investigation getting into a vehicle. Therefore, on October 17, 2017, he did a computer search of the license plate tag of the vehicle that the target entered. Id. at 35. Once he obtained the identity of Ms. Williams from searching the license plate tag, Appellee did various computer cross-checks including voter registration, criminal histories, property ownership and social media. Id. at 36. Appellee stated that he performed these computer searches to establish a connection to the target that he was investigating. Id. at 42. The information obtained from these computer searches identified Ms. Williams; however, he could not connect her to the target. Id. at 39.
At the preliminary hearing held on April 22, 2021, Lieutenant Clough read into the record the written statement given by Appellee. N.T., Preliminary Hearing, 4/22/21, at 29, 32-45. The written statement was in the form of a transcript as it recited the specific questions posed by Lieutenant Clough and the answers given by Appellee.
Appellee stated that he worked the 7:00 a.m. to 3:00 p.m. shift on October 17, 2017. However, he worked an additional four hours of overtime from 3:00 p.m. to 7:00 p.m. N.T. Preliminary Hearing, 4/22/21, at 33. Appellee did not do the computer search during his regular shift; instead, he searched the computer systems for information regarding Ms. Williams beginning at 3:35 p.m. while he was working overtime.
Specifically, Appellee told Lieutenant Clough the following:
QUESTION: Does the name Theresa Williams sound familiar in any of the ongoing investigations by you or any member of your squad or unit?
ANSWER: There are some lawyers involved in the Williams Avenue case. It was a case from Northwest. It was from a shooting that happened on July 31st, and the decedent died on 8-1-17.
QUESTION: Does the name Theresa Williams from the 6600 block of Ogontz Avenue have anything to do with the investigation of the homicide you mentioned from Williams Avenue?
ANSWER: I have not determined that yet. I saw the target of my investigation Tashaun Curtis get into a car a couple of months ago on the 6600 block of Ogontz right in front of his house. I was driving by. I saw him get into a white or white-colored SUV or van, and I drove around the block and the car was gone. A day later I surveyed the neighborhood, and I saw a vehicle that I though[t] he had gotten into. I ran the tag.
QUESTION: What follow[-]up did you do with that tag information?
ANSWER: All kinds of cross[-]checks, car stops, 48-A's, voters, real estate, criminal history, property ownership and social media.
QUESTION: Who was with you when you saw Tashaun Curtis get into the vehicle.
ANSWER: No one.
QUESTION: What is the case number that is assigned to the Williams Avenue homicide?
ANSWER: M17-185, I think.N.T. Preliminary Hearing, 4/22/21, at 34-36.
Also during the interview, Appellee stated that Edwin was his cousin (directly contradicting Edwin who stated that he only met Appellee one time briefly at a party). Appellee stated that he did not talk with Edwin frequently and last spoke with him approximately a year ago. Id. at 36. Appellee denied ever talking to Edwin about Ms. Williams and denied providing Edwin with the information he obtained from the computer searches regarding Ms. Williams. Id. at 39-42.
At the end of the written statement, Appellee signed the statement acknowledging that he "read the foregoing statement consisting of six pages and it is true and correct to the best of my knowledge." Id. at 44-45. Appellee also signed each page of the written statement. Id. at 29.
Immediately following the interview of Appellee, Lieutenant Clough went to the Homicide Division to obtain the M17-185 case file. He was provided with one file folder. N.T. Preliminary Hearing, 9/11/20, at 77. This folder contained no information regarding Ms. Williams. Id. at 78. The next day, Lieutenant Clough was informed that Appellee had called to advise Lieutenant Clough that there was a second folder related to the M17-185 homicide investigation. This folder contained a photograph of Ms. Williams and her children taken from her Facebook page. On the back of the photograph were handwritten notes regarding Ms. Williams, including her license plate number and that she had "no record/no wants." Id. at 78. Lieutenant Clough testified that the photograph was from a publicly available Facebook page. Lieutenant Clough reviewed the entire second folder and noted that the photograph of Ms. Williams was the only document contained within the folder that had handwriting. All of the other documents in the folder were "printouts of various licen[s]e plates, tags, houses that were checked." Id. at 80. In other words, the document referencing Ms. Williams was different from the other information contained within the folder. Id.
Lieutenant Clough stated that he logged onto Facebook and was able to retrieve the same photograph of Ms. Williams without any restrictions such as being "a friend of Ms. Williams." N.T. Preliminary Hearing, 9/11/20, at 79.
Lieutenant Clough also obtained the records for the telephone numbers for which Appellee and Edwin were identified as the subscribers. Contrary to the statement given by Edwin that he never communicated with Appellee after meeting him at a party and the statement given by Appellee that he and Edwin had not communicated with each other in a year or more, the telephone records revealed that there were numerous telephone calls and text messages between the two telephone numbers in early and mid-October 2017, including text messages being exchanged on October 14, 2017, the day Edwin encountered Ms. Williams in the Michaels craft store parking lot. Id. at 87. Most critically, there were five text messages between the two telephone numbers on October 17, 2017, just minutes before Appellee accessed the NCIC, PCIC and JNET computer systems to obtain information regarding Ms. Williams. Id. at 87-88. These telephone calls and text messages continued into early November and then ceased. On November 24, 2017, the same day of Lieutenant Clough's interview of Edwin, Appellee replaced his telephone with another. Id. at 88.
Based upon this evidence, the Commonwealth filed the four charges against Appellee. When viewing this evidence in a light most favorable to the Commonwealth, including all inferences reasonably drawn therefrom, I conclude that the Commonwealth met its burden of proof in establishing a prima facie case against Appellee on all four charges.
Unsworn Falsification to Authorities
A person commits the offense of unsworn falsification to authorities where, "with [the] intent to mislead a public servant in performing his official function, he: (1) makes any written false statement which he does not believe to be true." 18 Pa.C.S.A. § 4904(a).
As established at the preliminary hearings, Lieutenant Clough interviewed Appellee on December 27, 2017. Lieutenant Clough then transcribed the interview onto a six-page document entitled "Statement of Detective Nathaniel Williams." Appellee signed at the end of the statement acknowledging that he "read the foregoing statement consisting of six pages and it is true and correct to the best of my knowledge." N.T. Preliminary Hearing, 4/22/21, at 44-45. Appellee also signed each page of the written statement.
The Majority does not address whether Appellee provided false information to Lieutenant Clough during this interview but instead concludes that "[t]he Internal Affairs interview, which was conducted as an oral interview, memorialized in writing by Lieutenant Clough, and signed by [Appellee], does not constitute a 'written false statement,' under [18 Pa.C.S.A. § 4904(a).]" Majority Opinion at 8-9. In support of this conclusion, the Majority cites to only one case, Commonwealth v. Gaithers, 13 Pa.D.&C. 3d 668 (Pa. C.P. Montg. 1978). Id. at 9. The Majority's reasoning for citing Gaithers is not readily apparent because it is a 1978 decision of the Court of Common Pleas of Montgomery County in which the trial court found that the evidence was sufficient to convict the defendant of unsworn falsification where the defendant signed a Miranda rights form using a false name. I do not believe that this case lends support to the Majority's conclusion. Instead, I believe that Appellee's conduct amounted to "making" a false written statement.
Miranda v. Arizona, 384 U.S. 436 (1966).
There is nothing in the language of the statute that requires the defendant to be the actual scrivener of the written statement at issue. Lieutenant Clough contemporaneously transcribed Appellee's oral statements provided during the interview. Appellee adopted the entire transcription by signing all six pages and attesting to the fact that the "foregoing statement" was "true and correct to the best of [his] knowledge." N.T. Preliminary Hearing, 4/22/21, at 44-45. These acknowledgements and attestations make the statement Appellee's own. There is no reason why an individual would not be liable under Section 4904(a) for attesting to the truth of a written statement that was memorialized by a third party. In fact, it is commonplace for signatories to affidavits prepared by third parties to be subject to the penalties prescribed by Section 4904. See e.g., 42 Pa.C.S.A. § 102 (definition of "affidavit" in the Judicial Code, including "an unsworn document containing statement of fact and a statement by the signatory that it is made subject to the penalties of 18 Pa.C.S. § 4094.").
Moreover, this Court previously affirmed a conviction under Section 4904(a) where a false written statement was memorialized by a third party and then adopted by the way of the defendant's signature. In Commonwealth v. Cher pes, 520 A.2d 439 (Pa. Super. 1987), the defendant served as the chairman of a local municipality's board of commissioners. As such, he was required by law to file financial disclosure statements. The defendant filed a financial disclosure statement that failed to disclose certain income that he received through his insurance business. He claimed that he was out of town when the statement was due; therefore, his wife completed as well as signed the form. During trial, evidence was presented that the signature was, in fact, the defendant's signature. Although the form was completed by the defendant's wife, the jury found the defendant guilty of violating Section 4904(a). On appeal, this Court held that, drawing all reasonable inferences in favor of the Commonwealth, the jury properly convicted the defendant of unsworn falsification.
As I believe that the written statement signed by Appellee was a "written statement" as required by Section 4904(a), I turn to whether the evidence presented at the preliminary hearings was sufficient to establish a prima facie case that Appellee made false statements to Lieutenant Clough in an effort to mislead him. The Majority does not address whether Appellee lied or misled Lieutenant Clough, but I believe that, viewed in the light most favorable to the Commonwealth, the record provides ample evidence that Appellee was being untruthful in an effort to derail Lieutenant Clough's official investigation. Indeed, viewed in the light most favorable to the Commonwealth, the record reveals the following.
During the interview, Appellee was untruthful when he stated that he had not "spoken to" his cousin, Edwin, for a year or more. This statement is directly contradicted by the telephone records from Appellee and Edwin that show numerous telephone calls and text messages were exchanged between the two men during the relevant time period, including on October 14, 2017, the day Edwin encountered Ms. Williams in the Michaels craft store parking lot, and October 17, 2017, the day Appellee accessed the police databases.Most critically, the two men stopped communicating (even via text messaging) in early November 2017 when Lieutenant Clough began his investigation. Moreover, on November 27, 2017, the day Lieutenant Clough interviewed Edwin, Appellee replaced his telephone.
Appellee acknowledges that Appellee and Edwin communicated via text messaging, however, he argues that "while Appellee and Edwin communicated with each other frequently via text message, Appellee was not asked when he last communicated with Edwin. Rather, he was specifically asked when he last spoke to Edwin. And, while the Commonwealth introduced into evidence cell phone records that demonstrated that Appellee and Edwin had apparently attempted to call each other, none of the calls was longer that two minutes in duration which suggested that the men did not in fact speak as the lines were engaged only long enough to activate the phones' voice mail messages." Appellee's Substituted Brief at 18. I find this argument to be specious. Although Lieutenant Clough asked Appellee when he had last "spoken to" Edwin, it can reasonably be inferred that Lieutenant Clough was inquiring as to all types of communication between Appellee and Edwin, and that Appellee understood the question to include text messages (that Appellee does not deny occurred). Moreover, whether or not Appellee and Edwin actually spoke during the two minute telephone calls that were noted on the telephone records is a question of fact for a jury to decide.
Appellee also denied that he used government databases to assist his cousin in learning Ms. Williams' personal information, however, there is ample evidence to support that that is exactly what occurred. The record supports the reasonable inference that Appellee obtained Ms. Williams' personal information at Edwin's request. On October 14, 2017, the day on which Edwin encountered Ms. Williams in the parking lot and Edwin pulled his vehicle behind Ms. Williams' vehicle and looked in the direction of her license plate, there were text messages between Edwin and Appellee. Three days later (October 17, 2017), there were five text messages between Appellee and Edwin, just minutes before Appellee accessed the NCIC, PCIC and JNET computer systems to obtain information regarding Ms. Williams. There were additional text messages between the two men over the next several days. Shortly after Appellee obtained Ms. Williams' information, Edwin just happened to arrive at Ms. Williams' doorstep and, when asked how he found her, he responded that "he had his ways." In applying the more-likely-than-not test addressed by our High Court in Perez, supra, I believe that it is more likely than not that Appellee accessed the various computer systems on October 17, 2017 to provide his cousin with Ms. Williams' address.
Appellee claimed that he legitimately obtained Ms. Williams' personal information as part of a homicide investigation that he was conducting and that he did not obtain this information to provide to his cousin. However, consideration of his alternative explanation, his credibility and the weight of conflicting evidence must be reserved for the jury in the first instance. The trial court was not permitted at the preliminary hearing stage to credit Appellee's story and disregard the Commonwealth's explanation as all evidence and reasonable inferences drawn therefrom must be viewed in favor of the Commonwealth.
Viewed in the proper manner, since the record reflects that Appellee gave a false written statement to Lieutenant Clough with an intent to mislead, I believe that the trial court erred as a matter of law in dismissing the unsworn falsification charge.
Tampering With or Fabricating Physical Evidence.
A person commits the offense of tampering with or fabricating physical evidence when that person,
believing that an official proceeding or investigation is pending or about to be instituted, he:
(1) alters, destroys, conceals or removes any record, document or thing with intent to impair its verity or availability in such proceeding or investigation; or
(2) makes, presents or uses any record, document or thing knowing it to be false and with intent to mislead a public servant who is or may be engaged in such proceeding or investigation.18 Pa.C.S.A. § 4910.
At the preliminary hearings, Lieutenant Clough testified that, immediately following the interview of Appellee during which Appellee stated that he accessed the computer systems to obtain Ms. Williams' personal information as part of a homicide that he was investigating, Lieutenant Clough went to the Homicide Division to obtain the M17-185 case file. He was provided with one file folder which contained no information regarding Ms. Williams. However, on the next day, Appellee called to advise Lieutenant Clough that there was a second folder. This folder contained a photograph of Ms. Williams and her children taken from her Facebook page and on the back were handwritten notes with some of Ms. Williams' personal information. This photograph was the only document regarding Ms. Williams and was different than the other documents contained within the second folder which were computer printouts and had no handwriting. The Commonwealth argues that this is prima facie evidence that Appellee "manufactured the second homicide file after learning about [Lieutenant] Clough's investigation into his use of restricted access systems and did so knowing it to be false and with the intent to mislead [Lieutenant] Clough in conducting that investigation." Appellant's Substituted Brief at 16.
The Majority disagrees, finding that there was insufficient evidence to establish that the information regarding Ms. Williams was added to the homicide file after Appellee learned of the Internal Affairs Division's investigation, and that there was no testimony that Lieutenant Clough "obtained the entire file when he initially procured it." Majority Opinion at 11. Respectfully, the Majority fails to follow the standard of review that we are required to follow at the preliminary hearing stage and discounts reasonable inferences that Appellee tampered with the file.
Viewed in the light most favorable to the Commonwealth, the evidence demonstrates that Appellee told Lieutenant Clough during the December 27, 2017 interview that he accessed the police databases to obtain Ms. Williams' personal information as part of a homicide that he was investigating. Immediately following the interview, Lieutenant Clough went to the Philadelphia Police Homicide Division and requested homicide file M17-185 and he was provided with one file folder. There was no reference to Ms. Williams in the file. The next day, Appellee called to advise Lieutenant Clough that there was a second file and this file contained a photograph of Ms. Williams which had her personal information handwritten on the back. This second folder appeared suspect to Lieutenant Clough as the photograph appeared to come from a public Facebook page and the handwritten information contained on the back was the type of information that Lieutenant Clough had asked Appellee if he obtained regarding Ms. Williams. In sum, the only material contained in the second folder regarding Ms. Williams was a print-out of a publicly available Facebook photograph, on the back of which Appellee had handwritten Ms. Williams' personal information corresponding to the same information that Appellee provided to Lieutenant Clough during the interview a day earlier. Unlike the other materials in the folder, Appellee did not print out any of the database inquiries of Ms. Williams from October 17, 2017.
Specifically, during the preliminary hearing on September 11, 2020, the following exchange took place:
Commonwealth: The Facebook picture, did that appear to you that it came from a publicly available Facebook profile?
Lieutenant Clough: Yes, because I actually logged in and viewed it myself and I was able to see it without being restricted, without having to be a friend of Ms. Williams.
Commonwealth: And those handwritten notes, was that all information that you would have referred to in [Appellee's] interview with him?
Lieutenant Clough: Those things that were handwritten on there, yes. They were in - some of them were in the interview of [Appellee], yes. And he received a copy of that interview at the conclusion of his statement.
Commonwealth: Besides that Facebook page and the notes on the back was there any other reference to Theresa Williams in the file?
Lieutenant Clough: No, there was not. I looked extensively through that file. A lot of the inquiries that were made there was copies, there was printouts of various licen[s]e plates, tags, houses that were checked. And this was the only one, the only thing that was not printed out, it was just handwritten on the back of a Facebook page.
Commonwealth: So you are saying this information was different from the other checks that you saw in the file; is what you're saying.
Lieutenant Clough: Yes.N.T. Preliminary Hearing, 9/11/20, at 79-80.
It strains credulity to believe that a second file folder - containing information regarding Ms. Williams - was missing on December 27, 2017 when Lieutenant Clough retrieved and scoured file number M17-185 - which had no information regarding Ms. Williams - yet it immediately appeared one day later. Rather, viewing the evidence in the light most favorable to the Commonwealth, it is reasonable to infer that Appellee altered homicide file M17-185 by creating a second folder of materials (which now included information regarding Ms. Williams) in order to corroborate his purported reason for accessing the police databases and he provided this second folder to Lieutenant Clough to mislead him. By ignoring the reasonable inferences drawn from this evidence and, instead, accepting the explanations given by Appellee, the Majority is making improper credibility determinations and, in essence, rendering a finding of innocence.
When viewed in a light most favorable to the Commonwealth, the evidence and all reasonable inferences drawn therefrom support a prima facie case that Appellee altered the homicide file by creating a second folder with Ms. Williams' photograph and personal information to mislead and thwart an official investigation. Accordingly, the trial court erred in dismissing the charge of tampering with or fabricating physical evidence.
Tampering With Public Records or Information
A person commits the offense of tampering with public records or information when he:
(1) knowingly makes a false entry in, or false alteration of, any record, document or thing belonging to, or received or kept by, the government for information or record, or is required by law to be kept by others for information of the government;
(2) makes, presents or uses any record, document or thing knowing it to be false, and with intent that it be taken as a genuine part of information or records referred to in paragraph (1) of this subsection; or
(3) intentionally and unlawfully destroys, conceals, removes or otherwise impairs the verity or availability of any such record, document or thing.18 Pa.C.S.A. § 4911(a). When the offense is charged as a felony, as in this case, the Commonwealth must establish that the defendant acted with an intent to "defraud or injure." 18 Pa.C.S.A. § 4911(b). "Fraud" generally means "anything calculated to deceive, whether by single act or combination, or by suppression of truth, or suggestion of what is false, whether it be by direct falsehood or by innuendo, by speech or silence, word of mouth, or look or gesture." Moser v. DeSetta, 589 A.2d 679, 682 (Pa. 1991); see also Commonwealth v. Kitchen, 162 A.3d 1140, 1145 (Pa. Super. 2017).
I believe that the evidence adduced at the preliminary hearings, when viewed in a light most favorable to the Commonwealth, establishes a prima facie case for tampering with public records or information.
First, I agree with the learned Majority that the homicide file relied upon by Appellee to establish the legitimacy of his inquiries regarding Ms. Williams is a "record, document or thing belonging to, or received or kept by, the government for information or record." See Majority Opinion at 14; see also Commonwealth v. Barger, 375 A.2d 756, 763-764 (Pa. Super. 1977) ("It is a written report of an investigation of a motor vehicle accident which, at the very minimum, is kept by the State Police for informational purposes."). I part company, however, with my learned colleagues' finding that "the Commonwealth failed to present a prima facie case that [Appellee] made a false entry or alteration to the file." Majority Opinion at 15.
The Majority concludes that "[t]he Commonwealth's assertion that [Appellee] 'falsified' the second file is mere supposition and speculation." Id. Again, I believe that the Majority is applying the wrong evidentiary standard in reviewing whether a prima facie case was established. Circumstantial evidence of a crime being committed is sufficient and conclusions must be reached after reviewing the evidence and all reasonable inferences drawn therefrom in a light most favorable to the Commonwealth. Here, the elements of tampering with public records, with the intent to defraud, were established circumstantially.
Viewed in a light most favorable to the Commonwealth, the evidence demonstrates the following. Ms. Williams was confronted by Edwin in a parking lot on October 14, 2017, at which time she rebuffed his efforts to go out with him. As Ms. Williams was leaving the parking lot, Edwin pulled up behind her and looked in the direction of the rear of her vehicle, i.e. the location of her license plate. On that day, text messages were exchanged between Edwin and Appellee. Three days later, on October 17, 2017, Appellee accessed multiple police databases to obtain personal information regarding Ms. Williams, including her home address. Importantly, there were five text messages between Edwin and Appellee just minutes before Appellee accessed the NCIC, PCIC and JNET systems. Shortly after these databases were checked and information regarding Ms. Williams was obtained, Edwin appeared at Ms. Williams' door. When Edwin and Appellee were interviewed by Lieutenant Clough, they both lied about their communications with each other and, on the day of Edwin's interview, Appellee stopped using the cell phone that he had used previously to communicate with Edwin.
Again, Appellee does not deny that he and Edwin frequently sent text messages to each other. See Appellee's Substituted Brief at 18.
During his interview with Lieutenant Clough, Appellee tried to explain his purpose of accessing the police databases. He claimed to have been investigating a homicide when he just happened to have witnessed a target of that homicide enter a vehicle. Appellee contended that he accessed the license tag information for that vehicle to learn more about the target. When the information came back as belonging to Ms. Williams, he did additional searches to gather more information about her. Even though the suggested link between Ms. Williams and the murder suspect was both tenuous and uncorroborated, Appellee continued to access other databases to obtain more of Ms. Williams' personal information; however, he was never able to connect Ms. Williams to the homicide suspect.
Immediately after learning about this homicide investigation, Lieutenant Clough obtained the file folder identified by Appellee as the file related to the homicide investigation and there was no information in the file regarding Ms. Williams. One day later, Appellee produced a second folder which he claimed was part of the homicide investigation file and, lo and behold, this second folder contained a Facebook photograph of Ms. Williams. Unlike all of the other items in both folders, the one photograph of Ms. Williams was publicly accessible, had handwritten notes on it, and was not time-stamped.
When viewing this evidence and all reasonable inferences in a light most favorable to the Commonwealth, I believe that it is more likely than not that Appellee used official computer systems to help Edwin locate Ms. Williams then tried to cover it up by manipulating a government record to make it appear as if Ms. Williams were involved in a murder investigation. Appellee acted intentionally to create a second folder as part of the M17-185 homicide investigation file to deceive Lieutenant Clough and mislead him to believe that his purpose for accessing these systems was legitimate. I acknowledge that Appellee gave an innocent explanation for his actions; however, it is not proper at this stage of the proceedings to rely on Appellee's self-serving statements and completely disregard the evidence that reasonably leads to the conclusion that Appellee tampered with public records in violation of 18 Pa.C.S.A. § 4911(a). Accordingly, the trial court erred in dismissing this charge.
Obstructing Administration of Law or Other Governmental Functions
A person commits the offense of obstruction of administration of law or other governmental functions "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." 18 Pa.C.S.A. § 5101. This crime requires more than "mere lying" or giving false information to a police officer. See Commonwealth v. Shelly, 703 A.2d 499, 503 (Pa. Super. 1997). The conduct causing obstruction or interference must be an independently illegal act. See id.
As the Majority notes, Shelly's holding that providing false identification to law enforcement is not a crime has been superseded by 18 Pa.C.S.A. § 4914, however "that does not undermine its central holding that the 'unlawful act' element of Section 5101 can only be satisfied by allegations setting forth a violation of codified law." Majority Opinion at 17.
The Majority concludes that the Commonwealth failed to meet its burden of establishing a prima facie case on the obstruction charge as the Commonwealth did not establish a prima facie case for the other crimes charged. I set forth in detail why the record compels a finding that the Commonwealth met its burden of establishing a prima facie case that Appellee violated Sections 4904(a) (unsworn falsification), 4910 (tampering with or fabricating physical evidence) and 4911 (tampering with public records) of the Crimes Code. Since there is no question that Lieutenant Clough was engaged in the administration of a governmental function while investigating Appellee, all of the elements of Section 5101 were met. Therefore, the trial court erred in dismissing the charge of obstruction.
For the foregoing reasons, I would reverse the trial court's orders dismissing the charges of unsworn falsification, tampering with or fabricating physical evidence, tampering with public records, and obstructing administration of law or other governmental function, and remand so that all four charges against Appellee may proceed.
President Judge Emeritus Bender, Judge Stabile and Judge Dubow join this Dissenting Opinion.
Judgment Entered.