Commonwealth v. Crawford

COMMONWEALTH OF PENNSYLVANIA v. DION CRAWFORD Appellant

No. 335 WDA 2021

No. J-S32007-21

Superior Court of Pennsylvania

November 19, 2021

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

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

LAZARUS, J

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.

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 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

"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 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.

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.["]

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...