Commonwealth v. Holston

• Decision Date: 31 May 2019
• Docket Number: No. 223 EDA 2016,223 EDA 2016
• Citation: 211 A.3d 1264
• Parties: COMMONWEALTH of Pennsylvania, Appellant v. Richard HOLSTON
• Court: Pennsylvania Superior Court

211 A.3d 1264

COMMONWEALTH of Pennsylvania, Appellant

v.Richard HOLSTON

No. 223 EDA 2016

Superior Court of Pennsylvania.

Argued July 10, 2018

Filed May 31, 2019

Kelly M. Sekula, Assistant District Attorney, Norristown, for Commonwealth, appellant.

Andrew L. Miller, Bala Cynwyd, for appellee.

BEFORE: GANTMAN, P.J., BENDER, P.J.E., PANELLA, J., SHOGAN, J., LAZARUS, J., STABILE, J., DUBOW, J., NICHOLS, J., and McLAUGHLIN, J.

OPINION BY SHOGAN, J.:

The Commonwealth appeals from the order dismissing all charges filed against Appellee, Richard Holston, the proprietor of a business known as Summerdale Mills, which is a drapery and upholstery sales and manufacturing business that performed work for the Risoldi family. For the reasons that follow, we affirm.

We summarize the underlying history of this case as follows. The Risoldi family experienced multiple fires in their residences, resulting in the filing of numerous claims to insurance companies. Specifically, there were three fires, one in June of 2009, another in August of 2010, and the third in October of 2013. Insurance claims were made for damages suffered in each of the fires, including damage to window treatments provided by Summerdale Mills. Following the third fire, the insurer, AIG, refused to pay the claim for damage to the window treatments unless the Risoldis produced documentation that the window treatments had been replaced after the second fire and submitted the cost of that replacement. The Risoldi family alleged that receipts were lost in the fire and that Summerdale Mills did not have copies of the receipts.

Ultimately, a grand jury was convened to investigate whether the Risoldi family and their associates were involved in submitting fraudulent insurance claims.¹ Appellee was subpoenaed to testify before the grand jury and to produce records of all business between Summerdale Mills and members of the Risoldi family including checks, invoices, and estimates for replacement of fabrics due to fires at the Risoldis' residences.²

On September 16, 2014, Appellee testified before the grand jury. On October 8, 2014, a search warrant was executed at Summerdale Mills. At that time, numerous documents were recovered pertaining to work performed by Summerdale Mills for the Risoldi family.

Also in October of 2014, after the execution of the search warrant, Mark Goldman, a private investigator for the Risoldi family, delivered a binder of documents to AIG purporting to contain records from Summerdale Mills related to the window treatments. Some of the records misspelled the name of the company and reflected amounts paid to Summerdale Mills without description of the work or service provided.

On December 19, 2014, the Thirty-Fifth Statewide Investigating Grand Jury³ issued a presentment recommending that charges be filed against Appellee, Claire Risoldi, Carl Risoldi, Carla Risoldi, Sheila Risoldi, Tom French, and Mark Goldman in connection with an alleged multi-million-dollar insurance-fraud scheme. Appellee was charged with one count each of corrupt organizations, insurance fraud, criminal conspiracy, obstruction of the administration of law, and perjury.⁴

On February 4, 2015, the Commonwealth filed a petition seeking to file bills of information without a preliminary hearing, and on March 3, 2015, Judge Gavin denied the Commonwealth's petition. A preliminary hearing ultimately was held before Magisterial District Judge C. Robert Roth on August 19, 2015. At the conclusion of the preliminary hearing, the charges of insurance fraud, criminal conspiracy, obstruction of the administration of law, and perjury were held for court. The charge of corrupt organizations was dismissed.

On October 2, 2015, Appellee filed a petition for writ of habeas corpus . On October 15, 2015, a hearing on the petition was held before Judge Gavin, and on December 21, 2015, Judge Gavin granted habeas relief and dismissed all charges against Appellee. The Commonwealth filed this timely appeal. Both the Commonwealth and the trial court have complied with Pa.R.A.P. 1925. On November 20, 2017, a panel of this Court affirmed the order of the trial court. The Commonwealth then filed an application for reargument en banc , which we granted. This matter is now ripe for our disposition.

Before we address the merits of the Commonwealth's appeal, we must consider whether we have jurisdiction. We note that this matter involves an appeal from a pretrial order. Generally, when criminal charges are dismissed prior to trial, the Commonwealth can simply refile the charges and, therefore, an appeal from such an order is interlocutory. Commonwealth v. Price , 454 Pa.Super. 88, 684 A.2d 640, 641 (1996) (citing Commonwealth v. Waller , 453 Pa.Super. 36, 682 A.2d 1292 (1996) ). However, under Pennsylvania Rule of Appellate Procedure 311(d), in criminal cases the Commonwealth has a right to appeal an interlocutory order if the Commonwealth certifies that the order will terminate or substantially handicap the prosecution. Commonwealth v. Flamer , 53 A.3d 82, 86 n.2 (Pa. Super. 2012). Specifically, Rule 311(d) provides as follows:

In a criminal case, under the circumstances provided by law, the Commonwealth may take an appeal as of right from an order that does not end the entire case where the Commonwealth certifies in the notice of appeal that the order will terminate or substantially handicap the prosecution.

Pa.R.A.P. 311(d). The rule does not explicitly limit the Commonwealth's right of interlocutory appeal to any particular class of pretrial orders. Rather, it indicates that the Commonwealth may take an appeal as of right "under the circumstances provided by law." Id .

Here, the record reflects that the Commonwealth has included in its notice of appeal a statement that the order on appeal dismissed all charges and terminated the prosecution. Notice of Appeal, 1/7/16. Therefore, pursuant to Pa.R.A.P. 311(d), this Court has jurisdiction to hear this appeal from the trial court's interlocutory order. See Commonwealth v. Jackson , 10 A.3d 341, 344 n.2 (Pa. Super. 2010) (noting the Superior Court may not inquire into the grounds for the Commonwealth's good faith certification) (citing Commonwealth v. Moser , 999 A.2d 602, 605 n.2 (Pa. Super. 2010) ). We thus turn to the claims raised in this matter.

The Commonwealth presents the following issue for our review:

I. WHETHER THE LOWER COURT'S DISMISSAL OF CHARGES WAS A MANIFEST ABUSE OF DISCRETION WHERE THE COMMONWEALTH ESTABLISHED A PRIMA FACIE CASE FOR ALL CHARGES AND THE COURT'S RESOLUTION WAS CONTRARY TO THE STANDARDS FOR ANALYIZING [sic] SUFFICIENCY OF EVIDENCE TO SUPPORT A PRIMA FACIE CASE?

Commonwealth's Brief at 4.⁵ The Commonwealth contends that the trial court's order dismissing all charges was in error because the Commonwealth allegedly presented sufficient evidence to establish a prima facie case for each of the offenses dismissed.

The evidentiary sufficiency, or lack thereof, of the Commonwealth's prima facie case for a charged crime is a question of law; this Court's review is plenary. Commonwealth v. Karetny , 583 Pa. 514, 880 A.2d 505, 513 (2005) (citing Commonwealth v. Huggins , 575 Pa. 395, 836 A.2d 862 (2003) ). Indeed, the trial court is afforded no discretion in ascertaining whether, as a matter of law and in light of the facts presented to it, the Commonwealth has carried its pretrial, prima facie burden to establish the elements of a charged crime. Id .

In Huggins , our Supreme Court explained:

At the pre-trial stage of a criminal prosecution, it is not necessary for the Commonwealth to prove the defendant's guilt beyond a reasonable doubt, but rather, its burden is merely to put forth a prima facie case of the defendant's guilt. A prima facie case exists when the Commonwealth produces evidence of each of the material elements of the crime charged and establishes sufficient probable cause to warrant the belief that the accused committed the offense. The evidence need only be such that, if presented at trial and accepted as true, the judge would be warranted in permitting the case to go to the jury. Moreover, "[i]nferences reasonably drawn from the evidence of record which would support a verdict of guilty are to be given effect, and the evidence must be read in the light most favorable to the Commonwealth's case."

Id . at 866 (citations omitted).

However, we have also noted that "suspicion and conjecture are not evidence and are unacceptable as such." Commonwealth v. Packard , 767 A.2d 1068, 1071 (Pa. Super. 2001). "[W]here the Commonwealth's case relies solely upon a tenuous inference to establish a material element of the charge, it has failed to meet its burden of showing that the crime charged was committed." Commonwealth v. Wojdak , 502 Pa. 359, 466 A.2d 991, 997 (1983) (emphasis in original).

PERJURY

The Commonwealth first argues that the trial court erred in determining that the Commonwealth failed to present sufficient evidence to support a prima facie finding that Appellee committed the crime of perjury. Commonwealth's Brief at 18-33. Specifically, the Commonwealth asserts that it "charged [Appellee] with perjury under subsection (a) because he made false statements under oath during his grand jury testimony which were material to the [Risoldi family's] insurance claim related to window treatments and the grand jury's investigation of that claim." Id . at 19-20. The Commonwealth further contends:

The basis of the perjury charge was [Appellee's] testimony that he could not provide documentation related to the Risoldi window treatments because Summerdale Mills had gone "paperless" in 2006 and his computer hard drive containing the electronic documents as well as the back-up system had failed. Specifically, [Appellee] testified before the grand jury on September 16, 2014, that he "looked through any of the boxes that had files that I could find to try to comply with the subpoena.["] In this purportedly exhaustive search, [Appellee] produced only 68

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