Com. v. Crawford, D. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DION CRAWFORD :
:
Appellant : No. 335 WDA 2021
Appeal from the Judgment of Sentence Entered February 4, 2021
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0012507-2019
BEFORE: LAZARUS, J., MURRAY, J., and MUSMANNO, J.
MEMORANDUM BY LAZARUS, J.: FILED: NOVEMBER 19, 2021
Dion Crawford appeals from the judgment of sentence, imposed in the
Court of Common Pleas of Allegheny County, after the court convicted him,
following a nonjury trial, of obstructing the administration of law,1 tampering
with physical evidence,2 and possession of drug paraphernalia.3 Upon careful
review, we vacate Crawford’s judgment of sentence as to his convictions for
obstructing the administration of law and tampering with physical evidence,
discharge him with regard to those convictions, and remand the case to the
trial court for resentencing on the remaining count of possession of drug
paraphernalia.
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1 18 Pa.C.S.A. § 5101.
2 18 Pa.C.S.A. § 4910.
3 35 P.S. § 780-113(a)(32).
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The trial court summarized the facts and procedural history of this case
as follows:
On October 23, 2019, Penn Hills Police responded to a laundromat
located on Robinson Boulevard for a report of a suspicious male.
The 911 caller reported that a black male, wearing a black leather
jacket, blue jeans, and a blue ballcap had been observed
damaging the machines inside the laundromat. When the
responding officer arrived, he observed a black male matching the
description provided by the 911 caller standing in front of the
business. The officer directed the male, later identified as
Crawford, to place his hands on the police vehicle, at which point
Crawford surreptitiously reached into his right front pocket and
retrieved a small metal cylindrical object, which he then abruptly
deposited onto the ground. The officer observed Crawford’s
actions and recognized the item he [had] deposited onto the
ground as a crack pipe. When the officer asked Crawford if he
was in possession of any other contraband or weapons, Crawford
fled the scene and led the officer on a foot pursuit before
ultimately being apprehended. Crawford continued to be
noncompliant and refused to place his hands behind his back. Two
backup officers eventually arrived and assisted the initial officer in
taking Crawford into custody.
Following a nonjury trial on October 29, 2020, Crawford was found
guilty of [the above offenses]. On February 4, 2021, Crawford
was sentenced to [concurrent] period[s] of two (2) years’
probation in relation to his convictions for obstruction and
tampering with evidence[.] No further penalty was imposed in
relation to Crawford’s conviction for possession of drug
paraphernalia. Crawford subsequently filed a notice of appeal to
the Superior Court on March 5, 2021, and thereafter filed his
concise statement of [errors] complained of on appeal pursuant
to Pa.R.A.P. 1925(b)[.]
Trial Court Opinion, 7/14/21, at 2-3.
On appeal, Crawford challenges the sufficiency of the evidence
supporting his convictions for tampering with evidence and obstructing the
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administration of law.4 Our standard of review of a sufficiency claim is well-
settled:
We must determine whether the evidence admitted at trial, and
all reasonable inferences drawn therefrom, when viewed in a light
most favorable to the Commonwealth as verdict winner, support
the conviction beyond a reasonable doubt. Where there is
sufficient evidence to enable the trier of fact to find every element
of the crime has been established beyond a reasonable doubt, the
sufficiency of the evidence claim must fail.
The evidence established at trial need not preclude every
possibility of innocence and the fact-finder is free to believe all,
part, or none of the evidence presented. It is not within the
province of this Court to re-weigh the evidence and substitute our
judgment for that of the fact-finder. The Commonwealth’s burden
may be met by wholly circumstantial evidence and any doubt
about the defendant’s guilt is to be resolved by the fact[-]finder
unless the evidence is so weak and inconclusive that, as a matter
of law, no probability of fact can be drawn from the combined
circumstances.
Commonwealth v. N.M.C., 172 A.3d 1146, 1149 (Pa. Super. 2017).
Crawford first challenges the sufficiency of the evidence supporting his
conviction for tampering with physical evidence. Here, Crawford argues that
the trial court’s conclusion that he
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4 In its Rule 1925(a) opinion, the trial court concluded that Crawford had
waived his challenges to the sufficiency of the evidence because his Rule
1925(b) statement “offers no material facts in support of his contention” and
“fails to cite any precedential authority in support of his sufficiency
challenges.” Trial Court Opinion, 7/14/21, at 4. We disagree. Rule 1925
specifically states that “[t]he judge shall not require the citation to authorities
or the record[.]” Pa.R.A.P. 1925(b)(4)(ii). Moreover, we find that Crawford’s
statement “identif[ies] each error that [he] intend[ed] to assert with sufficient
detail to identify the issue to be raised[.]” Id. Accordingly, we will review
Crawford’s claims.
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“surreptitiously deposited the [crack pipe] onto the ground upon
being approached by police” is definitively refuted by the dashcam
footage entered into evidence during trial. The footage
demonstrates that [] Crawford emptied his pockets only after
Officer [Christopher] Broker had approached and detained him,
and that he did so casually and in full view of Officer Broker.
Moreover, Officer Broker’s testimony contains no suggestion that
there was anything “surreptitious[]” about the manner in which []
Crawford “deposited” the crack pipe. To the contrary, Officer
Broker testified that he “watched [Crawford] pull the crack pipe
out of his pocket and then [] watched it hit the ground” and
answered in the affirmative when asked if [] Crawford had
dropped the crack pipe “at [his] feet.” There was also no evidence
that the crack pipe was in any way damaged; to the contrary,
Officer Broker testified that he did not recall whether the object
shattered.
Brief of Appellant, at 11 (citations to record omitted).
In support of his argument, Crawford relies on our Supreme Court’s
decision in Commonwealth v. Delgado, 679 A.2d 223 (Pa. 1996). There,
police were conducting a controlled buy with a confidential informant (“CI”).
After the CI made contact with Delgado—the target—the CI gave the police
the pre-arranged hand signal to intervene. Police approached Delgado, who
then fled down an alley. As he was doing so, one of the pursuing officers
observed Delgado throw an object on top of a small building. The object was
retrieved and subsequently determined to be a plastic bag containing 17.1
grams of cocaine. Delgado was convicted of possession of cocaine, possession
of cocaine with intent to deliver, and tampering with evidence.
On allowance of appeal, the Supreme Court reversed Delgado’s
tampering conviction, holding that:
Delgado’s act of discarding contraband in plain view of the police
does not rise to a level of conduct that constitutes the destruction
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or concealment of evidence as contemplated by the statute. The
act of throwing the bag of cocaine while being chased by the police
was nothing more than an abandonment of the evidence. We
reach this conclusion mindful of the principles of construction for
the Crimes Code:
The provisions of [the Crimes Code] shall be construed
according to the fair import of their terms but when the
language is susceptible of differing constructions it shall be
interpreted to further the general purposes stated in this
title and the special purposes of the particular provision
involved.
18 Pa.C.S.[A.] § 105.
We note that in general a conviction for simple possession of
cocaine is a misdemeanor of the third degree punishable by a
maximum term of imprisonment of one year. 35 P.S. §§ 780–
113(16), (37)(b); 18 Pa.C.S.[A.] § 106(b)(9). Tampering with
evidence is a misdemeanor of the second degree punishable by a
maximum sentence of two years’ imprisonment. 18 Pa.C.S.[A.] §
4910(1); 18 Pa.C.S.[A.] § 106(b)(7). Under these circumstances,
we do not believe that the General Assembly intended the simple
act of abandoning evidence in plain view of the police to constitute
the commission of an additional crime of a greater degree.
Id. at 225.
As relevant here, a person commits the offense of tampering with
evidence where, “believing that an official proceeding or investigation is
pending or about to be instituted, he . . . alters, destroys, conceals or removes
any record, document or thing with intent to impair its verity or availability in
such proceeding or investigation[.]” 18 Pa.C.S.A. § 4910.
To establish the offense of tampering with evidence, the
Commonwealth must prove three interrelated elements: (1) the
defendant knew that an official proceeding or investigation was
pending (or about to be instituted); (2) the defendant altered,
destroyed, concealed, or removed an item; and (3) the defendant
did so with the intent to impair the verity or availability of the item
to the proceeding or investigation.
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Commonwealth v. Toomer, 159 A.3d 956, 961 (Pa. Super. 2017).
Here, upon careful review of Officer Broker’s testimony, as well as the
dashcam video, we are constrained to agree with Crawford that this case is
analogous to Delgado and, therefore, his conviction for tampering cannot
stand. Officer Broker testified as follows at trial:
Q. And once you made contact with the defendant, what
happened?
A. Based on the way that the call came in, I instructed Mr.
Crawford to place his hands on the patrol vehicle.
Q. And was he compliant?
A. He was at first.
Q. When you say he was at first, what do you mean by that?
A. I instructed Mr. Crawford to place both of his hands on the
hood of my police vehicle in front of my dashcam.
Q. And once you did that, what did you do next?
A. Mr. Crawford then reached down into his pocket and pulled out
an object and threw it on to the ground. I asked Mr. Crawford
what that was. He responded, [“]A crack pipe, sir.[”]
...
Q. And was it immediately apparent to you what the defendant
had dropped?
A. It was.
Q. And did the defendant identify this object as a crack pipe?
A. He did say it was a crack pipe.
N.T. Nonjury Trial, 10/29/20, at 10-11.
The dashcam footage of the above-described interaction shows Officer
Broker standing directly behind Crawford and slightly to Crawford’s right.
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Crawford removes an item (subsequently determined to be a crack pipe) from
his left jacket pocket and passes it from his left hand to his right hand. As
Officer Broker holds the sleeve of Crawford’s right jacket arm, Crawford drops
the item on the ground using that same arm. Officer Broker can be seen
watching as the item falls to the ground.5
Here, as in Delgado, Crawford’s act of “discarding contraband in plain
view of the police does not rise to a level of conduct that constitutes the
destruction or concealment of evidence as contemplated by the statute.”6 Id.(emphasis added). Moreover, possession of drug paraphernalia—here, a crack
pipe—is an ungraded misdemeanor, punishable by not more than one year’s
incarceration. See 35 P.S. 780-113(i); 18 Pa.C.S.A. § 106(b)(9), (8).
Tampering with evidence is a misdemeanor of the second degree, punishable
by a maximum of two years’ incarceration. See 18 Pa.C.S.A. 4910(1); id. at
§ 106(b)(7). As the Supreme Court concluded in Delgado, “we do not believe
that the General Assembly intended the simple act of abandoning evidence in
plain view of the police to constitute the commission of an additional crime of
a greater degree.” Delgado, 679 A.2d at 225. Accordingly, even viewing the
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5 The verbal exchange between Officer Broker and Crawford is inaudible.
6 The Commonwealth’s reliance on Commonwealth v. Jones, 904 A.2d 24(Pa. Super. 2006), is misplaced. There, Jones actually destroyed the
evidence—believed to be a crack pipe—with which he was charged with
tampering by stepping on it as he walked towards a patrol car prior to his
arrest.
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evidence in the light most favorable to the Commonwealth as verdict-winner,
we agree with Crawford that his conviction for tampering cannot be sustained.
Crawford next challenges the sufficiency of the evidence supporting his
conviction of obstructing the administration of law. A person is guilty of that
offense where 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 (emphasis added).
In order to establish that Crawford obstructed the administration of law
under section 5101, the Commonwealth must establish that: (1) he had the
intent to obstruct the administration of law; and (2) he used force or violence,
breached an official duty, or committed an unlawful act. Commonwealth v.
Goodman, 342, 676 A.2d 234, 235 (Pa. 1996). The obstruction statute
specifically excludes from its ambit “flight [or] refusal to submit to arrest.” 18
Pa.C.S.A. § 5101. The explanatory note to Model Penal Code section 242.1,
which the legislature adopted, verbatim, in section 5101, explains this
exception as follows:
Specifically excluded from [s]ection 242.1 are the acts of “flight
by a person charged with crime” and “refusal to submit to arrest.”
The effect of these exclusions is to relegate such conduct
to the [s]ection 242.2 offense of resisting arrest. This
provision covers a person who, for the purpose of preventing a
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lawful arrest, “creates a substantial risk of bodily injury” or
“employs means justifying or requiring substantial force to
overcome the resistance.” This language exempts from
liability nonviolent refusal to submit to arrest and such
minor acts of resistance as running from a policeman or
trying to shake free of his grasp. The policy judgment
underlying this curtailment of coverage is that authorizing criminal
punishment for every trivial act of resistance would invite abusive
prosecution. Of course, [s]ection 242.2 does not limit the
policeman’s authority to pursue a fleeing suspect or to use force
if necessary to effect an arrest.
Model Penal Code § 242.1, Explanatory Note (emphasis added).
The trial court found the evidence to be sufficient to sustain a conviction
under section 5101 where Crawford’s “actions, viewed collectively, were
sufficient to establish that, knowing he was the subject of a police
investigation, [he] intentionally obstructed the administration of law . . . by
attempting to discard the crack pipe before the police officer discovered it on
his person.” Trial Court Opinion, 7/14/21, at 6. We disagree.
Here, Crawford did not use force or violence, breach an official duty, or
commit an unlawful act. Goodman, supra. Rather, as we concluded above,
he merely attempted to abandon evidence in plain view of Officer Broker.
When Officer Broker asked Crawford what the object was, he immediately
admitted that it was a crack pipe. Crawford’s subsequent act of shaking free
from Officer Broker’s grasp and fleeing is specifically excluded from
consideration under the statute. See 18 Pa.C.S.A. § 5101; see also Model
Penal Code § 242.1, Explanatory Note.
The Commonwealth argues that
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[w]hile [section 5101] does indicate that it does not apply to
“flight by a person charged with crime [or the] refusal to submit
to arrest,” the statute’s plain language makes clear that it only
does not apply in those circumstances in which the flight occurs
“without affirmative interference with governmental functions.”
Here, Officer Broker testified that[,] after he had to forcibly take
hold of one of Crawford’s hands in an attempt to get him to comply
with his request to put his hands on the vehicle’s hood, Crawford
broke away from him and ran off. The Commonwealth submits
that this action by Crawford would certainly qualify as an
affirmative interference with the investigation that Officer Broker
was trying to undertake, and, as a result, the exception for flight
. . . is actually inapplicable to [Crawford].
Brief of Appellee, at 10. We disagree.
The logic of the Commonwealth’s argument would have us define
“affirmative interference with governmental functions” to include any act of
noncompliance or flight, thus effectively negating the exception contained
within the statute. If mere flight and refusal to submit to arrest, alone,
constituted an “affirmative interference with governmental functions,” the
language exempting flight and similar acts would be entirely superfluous,
contrary to the basic tenets of statutory construction, and render the offense
of resisting arrest, see 18 Pa.C.S.A. § 5104, meaningless. See 1 Pa.C.S.A. §
1921(a) (requiring courts to aim to give effect to all of a statute’s provisions).
We decline to usurp the function of the legislature, which is “presumed not to
intend any statutory language to exist as mere surplusage.” Commonwealth
v. Ostrosky, 909 A.2d 1224, 1232 (Pa. 2006).
In the alternative, the Commonwealth further argues that, “even putting
aside Crawford’s flight, his actions with the crack pipe are alone sufficient to
sustain his conviction,” as “even unsuccessful attempts to obstruct the
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administration of the law satisfy the terms of the statute.” Brief of Appellee,
at 11. We disagree. The statute requires that a defendant obstruct the
administration of law “by force, violence, physical interference or obstacle,
breach of official duty, or any other unlawful act[.]” 18 Pa.C.S.A. § 5101. The
act of dropping a crack pipe, in full view of a police officer, and then candidly
admitting to having done so upon questioning, plainly does not satisfy the
language of the statute.
In light of the foregoing, we are constrained to vacate Crawford’s
judgments of sentence, and discharge him, as to his convictions for tampering
with evidence and obstructing the administration of law. Because the trial
court imposed no further penalty on Crawford’s conviction for possession of
drug paraphernalia, we are obliged to remand for resentencing. See
Commonwealth v. Brown, 26 A.3d 485, 510 (Pa. Super. 2011) (“[W]here
this Court vacates a conviction in a multiple count appeal, and vacating the
conviction upsets the trial court’s overall sentencing scheme, this Court must
remand for re-sentencing because sentencing lies within the sole discretion of
the trial court.”).
Judgments of sentence vacated and Appellant discharged as to
convictions for tampering with evidence and obstructing the administration of
law. Case remanded for resentencing on possession of drug paraphernalia.
Jurisdiction relinquished.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/19/2021
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