Com. v. Johnson, S. , 100 A.3d 207 ( 2014 )

J-S45010-14
2014 Pa. Super. 175
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
SINCERITY JOHNSON,
Appellant No. 474 EDA 2013
Appeal from the Judgment of Sentence September 18, 2012
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0004422-2012
BEFORE: BOWES, WECHT, and FITZGERALD,* JJ.
OPINION BY BOWES, J.: FILED AUGUST 20, 2014
Sincerity Johnson appeals from her September 18, 2012 judgment of
concurrent sentences of one year of probation, which were imposed after
she was convicted of hindering apprehension or prosecution and obstructing
administration of law. She challenges the sufficiency of the evidence
supporting her convictions. We reverse in part and affirm in part.
1
On
September 15, 2011, at approximately 12:00 noon, twenty FBI agents and
United States Marshals went to an apartment located in a building at 633
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*
Former Justice specially assigned to the Superior Court.
1
Appellant appealed to the Philadelphia Court of Common Pleas following
her conviction at a bench trial in the Philadelphia Municipal Court. Our
summary of the facts is gleaned from the transcript of the trial de novo.
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West Rittenhouse Street, Philadelphia, to execute an arrest warrant for
Rodney Thompson. Appellant shared the apartment with her mother. The
law enforcement officers knocked, announced that they were police officers,
and stated that they had a warrant. Initially, there was no response. After
knocking a second time, Appellant inquired who they were. Upon being
informed again that they were police officers with a warrant, Appellant told
them to wait while she dressed. After five minutes, the officers heard
someone running within the apartment, and they attempted to force open
the door, but stopped when Appellant did so. When questioned, Appellant
denied that there was anyone else in the apartment; after being shown a
photograph of Thompson, she denied knowing him.
The law enforcement officers noticed that a window was open and that
the subject of the warrant was running on the second floor roof of the
apartment. Thompson was apprehended behind the apartment building.
Appellant was taken into custody and charged with hindering apprehension,
a third-degree felony, and obstructing administration of law, a misdemeanor.
The felony hindering apprehension charge subsequently was reduced
to a misdemeanor, and the case was transferred to Municipal Court for
disposition. Appellant was found guilty by the court and sentenced to six
months supervised probation. Appellant appealed to the court of common
pleas for a de novo trial. The Commonwealth filed a criminal information
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crime or violation of the terms of probation, parole, intermediate
§ 5105(a)(1). Criminal Information at 1.2
Appellant waived her right to a jury trial and proceeded non-jury. She
unlocked the door. N.T., 9/18/12, at 28. She maintained that the officers
did not tell her that they had an arrest warrant or identify the subject of the
document. Appellant denied that she was attempting to delay police so that
Thompson could escape, and portrayed him as an uninvited guest. She
ultimately conceded, however, that she and Thompson had dated
intermittently but denied that she was pregnant with his child at the time.
The court convicted Appellant of both offenses and sentenced her to twelve
months reporting probation on the obstruction charge and a concurrent term
of twelve months reporting probation on the hindering apprehension charge.
On September 27, 2012, Appellant filed a post-sentence motion for
judgment of acquittal and/or a new trial. She challenged, inter alia, the
legal sufficiency of her convictions. The motion was denied by operation of
law on January 28, 2013, and Appellant timely filed the within appeal.
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2
had been charged or was liable to be charged against the person aided
Id.
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statement of errors complained of on appeal.
The trial court issued its Rule 1925(a) opinion in which it described
Trial Court Opinion, 11/26/13,
at 12-
calculated to hinder the apprehension of the fugitive who was concealed in
Appe
false statements to police, but because, under the totality of the
entry of law enforcement into her apartment, thereby providing time for the
person for whom the arrest warrant was issued to escape from the
Id. at 2. For purposes of the obstruction charge, the locked
Id. at 16.
Appellant presents two issues for our review:
1. Was not the evidence insufficient to sustain the conviction of
hindering apprehension or prosecution in that the
Commonwealth failed to present evidence relating to the
alleged warrant, and therefore it did not prove an element of
the offense because it failed to demonstrate that the person
they were seeking was wanted for a crime or violation of
probation or parole, as required by statute 18 Pa.C.S. §
5105?
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2. Was not the evidence insufficient to sustain the conviction of
momentary need to get dressed before opening the door for
police and then providing false answers in response to
questions by law enforcement officers was not force, violence,
or physical interference or obstacle, as required by statute 18
Pa.C.S. § 5101?
In reviewing a challenge to the sufficiency of the evidence, we apply
the following standard.
There is sufficient evidence to sustain a conviction when the
evidence admitted at trial, and all reasonable inferences drawn
therefrom, viewed in the light most favorable to the
Commonwealth as verdict-winner, are sufficient to enable the
fact-finder to conclude that the Commonwealth established all of
the elements of the offense beyond a reasonable doubt.
Commonwealth v. Markman, 591 Pa. 249, 916 A.2d 586, 597
(Pa. 2007). The Commonwealth may sustain its burden "by
means of wholly circumstantial evidence." Id. at 598. Further,
we note that the entire trial record is evaluated and all evidence
received against the defendant is considered, being cognizant
that the trier of fact is free to believe all, part, or none of the
evidence. Id.
Commonwealth v. Morales, 2014 Pa. LEXIS 1064 (Pa. 2014).
Appellant claims that her conviction for hindering apprehension or
prosecution cannot stand because the Commonwealth did not present any
renders her conviction infirm pursuant to 18 Pa.C.S. § 5105(a)(1). She
posits that it is just as likely that the warrant was one issued to a material
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witness for a federal grand jury, which would not satisfy the requirements of
§ 5105.3
The Commonwealth counters that evidence of the underlying crime
prompting official action is not required to sustain the conviction, and that
Appellant fails to cite any authority articulating such a requirement.
threatened to kill her
is not required to disprove potential defense theories in its case-in-chief, i.e.,
an affirmative defense negating a specific element of the crime had been
Id. (citing Commonwealth v. Weis, 611 A.2d 1218, 1225
(Pa.Super. 1992)).
The law is well settled that penal statutes must be strictly construed in
favor of the accused. Commonwealth v. Cunningham, 375 A.2d 66
(Pa.Super. 1977). The offense described in § 5105, hindering apprehension
or prosecution provides:
(a) Offense defined. --A person commits an offense if, with
intent to hinder the apprehension, prosecution, conviction
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3
Simon v. City of New York, 727 F.3d 167, 172
(2d Cir. 2013).
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or punishment of another for crime or violation of the
terms of probation, parole, intermediate punishment or
Accelerated Rehabilitative Disposition, he:
(1) harbors or conceals the other;
(2) provides or aids in providing a weapon,
transportation, disguise or other means of avoiding
apprehension or effecting escape;
(3) conceals or destroys evidence of the crime, or
tampers with a witness, informant, document or
other source of information, regardless of its
admissibility in evidence;
(4) warns the other of impending discovery or
apprehension, except that this paragraph does not
apply to a warning given in connection with an effort
to bring another into compliance with law; or
(5) provides false information to a law enforcement
officer.
(b) Grading. --The offense is a felony of the third degree if the
conduct which the actor knows has been charged or is liable to
be charged against the person aided would constitute a felony of
the first or second degree. Otherwise it is a misdemeanor of the
second degree.
18 Pa.C.S. § 51054 (emphasis supplied).
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4
The comments to Model Penal Code § 242.3, which served as the
prototype for 18 Pa.C.S. § 5105, explain that the drafters intended to
Commonwealth v. Lore, 487 A.2d 841, 854
(Pa.Super. 1984). See also Official Comment to 18 Pa.C.S. § 5105. Thus,
they shifted the focus of culpability to the person aiding the other, and to his
or her state of mind. Lore, supra at 854. Whether the offense is graded as
a felony or misdemeanor de
crime. In order to be charged with the felony, the aider need only know that
(Footnote Continued Next Page)
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While there is case law interpreting § 5105, the specific argument
advanced by Appellant herein has seldom been advanced. A similar position
was articulated by the defendant in Commonwealth v. Patterson, 390
A.2d 784 (Pa.Super. 1978). Therein, defendant was convicted of hindering
apprehension or prosecution based on his volunteering of false information
to po
eavesdrop on interviews.5 This Court agreed with the defendant that, even
if the evidence was sufficient to show that he volunteered false information,
there was insufficient evidence that
prosecution, conviction or punishment of another for crime,
eavesdropping was not criminal in nature. Id. at 787 (emphasis original).
Patterson suggests that evidence that the other person committed a
crime or was wanted in connected with a crime is an element of the offense
that must be proved beyond a reasonable doubt. We find additional support
- HINDERING
_______________________
(Footnote Continued)
See Model Penal Code § 242.3
comment 6 (1980).
5
The predecessor to the current statute, paragraph (5) prohibited
volunteering false information to law enforcement. We held in
Commonwealth v. Gettemy, 591 A.2d 320, 323 (Pa.Super. 1991), that
giving false and misleading answers to police inquiries was not proscribed by
that language. The provision was intended to reach those who took the
initiative in misleading law enforcement.
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APPREHENSION OR PROSECUTION MISDEMEANOR. The suggested jury
instruction provides as follows:
1. The defendant has been charged with the misdemeanor
offense of hindering [apprehension] [prosecution] [other
offense]. To find the defendant guilty of this offense, you must
find that each of the following two elements has been proven
beyond a reasonable doubt:
First, that the defendant [harbored or concealed [item]]
[provided or aided in providing [a weapon] [transportation]
[disguise] [means of avoiding apprehension or effecting escape]
[other provision]] [concealed or destroyed evidence of the crime]
[tampered with a [witness] [informant] [document] [source of
information] [item]] [warned [name of offender] of impending
discovery or apprehension] [volunteered false information to a
law enforcement officer] [action];
Second, that the defendant did so with intent [or
conscious purpose] to hinder the [apprehension]
[prosecution] [conviction] [punishment] of [name of
offender] for the crime.
Pa. SSJI (Crim.) § 15.5105B. (emphasis supplied).
We note further that where a person is charged with the felony offense
of hindering apprehension, there is a third element that must be proven.
The Commonwealth must establish that the actor knew that the conduct
charged against the aided person or which was liable to be charged against
the aided person, would constitute a felony of the first or second degree.
See Pa.SSJI (Crim.) § 15.5105A.6 Thus, the nature of the offense charged
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6
The Pa. Suggested Standard Jury Instruction for the felony hindering
apprehension or prosecution charge recites that the offense contains three
elements, each of which has to be proven beyond a reasonable doubt:
(Footnote Continued Next Page)
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_______________________
(Footnote Continued)
First, that the defendant [harbored or concealed [item]]
[provided or aided in providing [a weapon] [transportation]
[disguise] [means of avoiding apprehension or effecting escape]
[other provision]] [concealed or destroyed evidence of the
crime] [tampered with a [witness] [informant] [document]
[source of information] [other item]] [warned [name of
offender] of impending discovery or apprehension] [provided
false information to a law enforcement officer] [action];
Second, that the defendant did so with intent to hinder the
[apprehension] [prosecution] [conviction] [punishment] of
[name of offender] for the crime; [or]. for violating the terms of
probation, parole, intermediate punishment, or accelerated
rehabilitative disposition; and [Where applicable:]
Third, that the defendant knew [name of offender] [had been
charged] [or] [was liable to be charged] with conduct that would
constitute a felony of the first or second degree. It is not
necessary that the defendant knew the conduct would constitute
a felony. It is sufficient if the defendant knew that [name of
offender] [had been charged] [or] [was liable to be charged]
with certain conduct as long as such conduct, regardless of
whether the defendant knew it or not, would actually amount to
a felony of the first or second degree. I instruct you that the
following conduct would amount to a felony of the [first]
[second] degree.
[2. As I told you, you cannot find the defendant guilty unless you
find that [he] [she] had the intent to hinder the [apprehension]
[prosecution] [conviction] [punishment] of [name of offender].
for the crime; [or] for violating the terms of probation, parole,
intermediate punishment, or accelerated rehabilitative
disposition.
It is not necessary that an intent to hinder was [his] [her] sole
purpose. [He] [She] may have had other purposes or motives.
However, to be guilty, [he] [she] must have acted with a
conscious purpose to hinder the authorities.]
[3. You will note that there is no requirement that [name of
offender] had actually committed any crime or that the
(Footnote Continued Next Page)
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or liable to be charged against the aided person is determinative of the
grading of the offense and the proof required. Hence, the legislature
demonstrated an intent to differentiate the offenses based upon the
underlying crime.
remaining offenses against public administration are collected in Article 242
under the rubric of obstructing governmental operations. The specific crimes
defined in Article 242 are not interdependent, but each involves conduct by
which the actor attempts some interference with the administration of
Explanatory Note.
_______________________
(Footnote Continued)
defendant believed that [name of offender] had committed any
crime in order to find the defendant guilty. The essence of the
offense with which the defendant is charged is interference with
the processes of justice. A person who aids another in an effort
to hinder the [police] [authorities] can interfere with the
processes of justice regardless of whether he or she believes the
other person is guilty or whether the other person is actually
guilty of any crime.]
4. If you are satisfied that the three elements of the felony
offense of hindering [apprehension] [prosecution] [action] have
been proven beyond a reasonable doubt, you should find the
defendant guilty. Otherwise, you must find the defendant not
guilty of this crime.
Pa.SSJI (Crim.) § 15.5105A.
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The New Hampshire hindering apprehension or prosecution statute is
also drawn from section 242.3 of the Model Penal Code (MPC). State v.
Brown, 930 A.2d 410, 413-
explained how the offense
-law category of accessory after the fact but
breaks decisively with the traditional concept that the
accessory's liability derives from that of his principal. Thus,
under the Model Code provision [242.3], one who harbors a
murderer is not made a party to the original homicide but is
convicted, as he should be, for an independent offense of
obstruction of justice." Model Penal Code, Introductory Note for
Article 242, at 199 (1980). "[This] approach dispenses with
many of the common-law elements[,] [including] knowledge of
the identity of the perpetrator, knowledge of the underlying
felony, and . . . even the requirement that a felony actually have
been committed . . . ." Commonwealth v. Perez, 437 Mass.
186, 770 N.E.2d 428, 433 (Mass. 2002) (parentheses omitted)
citing Model Penal Code & Commentaries § 242.3, comment 3,
at 229, 230. The approach "focuses instead upon whether the
defendant purposely hindered law enforcement." Perez, 770
N.E.2d at 433.
Id. at 413- i.e., that the
State needed to prove beyond a reasonable doubt that the defendant
harbored Mark Soto in his residence while members of the Nashua Police
Department were searching for Mr. Soto in connection with a robbery, [and]
that the defendant acted with a purpose to hinder the apprehension of Mark
Soto for commission of a crime
Other states that have adopted the MPC version of the hindering
offense. In State v. Mootispaw, 492 N.E.2d 169, 171 (Ohio App. 1985),
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the defendant was charged with hindering prosecution for writing an
anonymous false letter to police in a deliberate attempt to convince the
authorities to terminate the prosecution of her husband. At the conclusion
eging there was
no proof of the commission of a crime by her husband, the person whose
prosecution she was charged with hindering. The State offered evidence
i.e., that a bottle of
wine had been stolen and that husband was the thief. The court
Id. at 171.
However, a conviction was not required, as that would emasculate the intent
of the statute. Evidence that the other person in that case was charged with
a crime and that the defendant hindered his apprehension, prosecution or
conviction was sufficient.
In King v. State, 76 S.W.3d 659, 662 (Tex. App. 2002), the hindering
apprehension statute subjected one to criminal liability for conduct intended
an offense.
(emphasis in original). The State introduced the parole violation warrant for
the other person, which recited therein that he had been convicted of a
felony offense for which he was sentenced to the Texas Department of
Criminal Justice. The defendant argued that this warrant was insufficient to
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was not defined as an offense.7
warrant for a parole violation is merely a revocation of the parolee's
administrative release. In other words, when a parolee is arrested for a
parole violation, he is apprehended for the same offense for which he had
Id. That court concluded that
although the specific offense was an element of the crime charged, and it
was not specified in the warrant, the evidence was sufficient to show that
and the jury could reasonably find that the essential elements of hindering
apprehension were established.
Instantly, Detective McCusker testified that he was assigned to the FBI
Fugitive Task Force, and that he and approximately twenty-four other law
ounced
Id. at 9. Initially, there was
no response. They knocked again, and a female voice inquired who they
Id.
Id. Detective
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7
In contrast, the Pennsylvania hindering apprehension statute was
amended in 1996 to expressly provide that it is a violation to hinder
apprehension of another who is a parole violator.
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Id. They started to force open
the door, again identified themselves as police officers with a warrant, and
at that point, Appellant opened the door. The detective asked her if
anybody else was in the apartment and she said no. Id. When shown a
him. The detective told her they had a federal warrant for the man.
Detective McCusker and the other officers proceeded into the apartment.
Through an open window, the detective observed Rodney Thompson running
on the second floor roof of the apartment and he notified other officers who
apprehended him.
The Commonwealth offered no evidence as to why Thompson was
wanted or whether it was in connection with a crime, or violation of the
terms of probation, parole, intermediate punishment or Accelerated
Rehabilitative Disposition. It did not place the warrant into evidence and no
although the Commonwealth offered evidence from which one might infer
that Appellant intended to hinder the apprehension of Thompson, it did not
offer proof that Th
violation of the terms of probation, parole, intermediate punishment or
that the Commonwealth offered evidence that police officers apprised
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Appellant that they had a federal warrant, even an arrest warrant, was not
enough to satisfy this element. Nor do we find persuasive the
constituted circumstantial evidence that he was an outstanding felon. In
short, the Commonwealth failed to prove an element of the offense: that
Thompson was being sought for commission of a crime or any of the
Appellant contends that her conviction for obstructing the
administration of law or other governmental function, in violation of 18
Pa.C.S. § 5101, is also infirm. She points to the fact that she never
physically blocked the officers from doing their duty or even verbally refused
to admit them. She maintains that her original hesitancy in responding can
be attributed to suspicion that it was not really the police at her door. Any
further delay was due to her desire to change into more modest attire before
answering the door. Finally, any false information provided to police
administration of law by force, violence or physical interference or obstacle
at 14.
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
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in opening the door constituted physical interference or an obstacle to
execution of the arrest warrant.
Evidence that one has physically impeded a law enforcement officer
from administering the law has been held sufficient to sustain a conviction
under § 5101. See Commonwealth v. Conception, 657 A.2d 1298
(Pa.Super. 1995) (appellant blocked door of her apartment to prevent the
police from entering to apprehend fugitive who was hiding in the shower
stall); Commonwealth v. Reed, 851 A.2d 958, 963-64 (Pa.Super. 2004)
(defendant attempted to obstruct the pathway of a uniformed police officer
in the common area of an apartment house after the officer had exclaimed
to the defendant: "Just let me get by and do my job."); Commonwealth v.
Love, 896 A.2d 1276, 1284-1285 (Pa.Super. 2006) (defendant, in an
attempt to interfere with the law enforcement officer who was escorting his
wife from the courtr
attempted to push him).
The interference need not involve physical contact with the
government official as he performs his duties. Commonwealth v.
Scarpone, 634 A.2d 1109, 1113 (Pa. 1993). See also Commonwealth v.
Mastrangelo, 414 A.2d 54 (Pa. 1980), (upholding a § 5101 conviction
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receiving a parking ticket, which then deterred the officer from subsequently
performing the job).
In Commonwealth v. Trolene, 397 A.2d 1200 (Pa.Super. 1979), we
chambers of a trial judge and making statements to the judge that were
intended to influence his decision in a pending criminal matter involving a
the
Model Penal Code section 242.1, we relied on the comment to that section
r
Id. at 1202.
Most recently, in Commonwealth v. Snyder, 60 A.3d 165 (Pa.Super.
2013), we again examined the physical interference requirement of the
statute. Snyder went to the home of another and informed that person that
the police intended to execute a search warrant on his residence. Snyder
argued that this conduct could not be classified as physical interference or
violence, physically interfere with or obstruct the execution of the search
Id. at
176.
In Snyder, this Court preliminarily noted that the statute did not
und Trolene, supra, particularly apt
and relied upon it in holding that evidence that the defendant actively
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warrants was sufficient to support the conviction for obstructing the
admini Id.
Conduct intended to obstruct police from ensuring that public streets
were open for safe vehicle and pedestrian traffic established a prima facie
case of obstruction of administration of justice pursuant to 18 Pa.C.S.
§ 5101 in Commonwealth v. Ripley, 833 A.2d 155 (Pa.Super. 2003). In
that case, protesters physically linked themselves together with lock-boxes
covered in tar and chicken wire. This Court concluded that since the sole
purpose was to impede police efforts to disperse them, the Commonwealth
stated a prima facie case for conspiracy to obstruct administration of justice.
The trial court herein concluded that Appellant intentionally delayed in
opening the locked door to an announced police presence in order to permit
Thompson to escape apprehension. This, according to the fact-finder,
constituted physical interference or an obstacle to execution of the warrant.
We agree, and find the evidence sufficient to sustain the conviction.
Judgment of sentence reversed in part and affirmed in part.8
Jurisdiction relinquished.
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8
Since the sentence imposed on the hindering apprehension charge runs
concurrently to an identical sentence imposed on the obstruction charge, our
disposition does not affect the overall sentencing scheme and no remand is
necessary for a new sentencing. Commonwealth v. Rivera, 2014 PA
Super 140 (Pa.Super. 2014).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/20/2014
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