J-S53027-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellant

v.

STEPHANIE PEZZETTI-FUNK,

Appellee No. 3369 EDA 2016

Appeal from the Order Entered October 5, 2016

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): MC-51-CR-0021627-2016

BEFORE: BENDER, P.J.E., OLSON, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY OLSON, J.: FILED SEPTEMBER 01, 2017

The Commonwealth of Pennsylvania appeals from the order entered on 

October 5, 2016, denying the Commonwealth’s motion to refile charges 

against Appellee, Stephanie Pezzetti-Funk. Upon careful consideration, we 

reverse.

The factual background and procedural history of this case are as 

follows. On June 27, 2016, Appellee and her sister were scheduled for court 

on an underlying simple assault matter. Gina Fuscellaro (“Fuscellaro”) was 

scheduled to testify against Appellee and her sister. Fuscellaro was in the 

hallway outside of the courtroom when Appellee approached her. Appellee 

showed Fuscellaro a clenched fist and told her she “better drop the charges.” 

N.T., 8/15/16, at 9. Fuscellaro left the courthouse and reported the incident 

at a police station.
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Appellee was charged via criminal complaint with intimidation of a 

witness,1conspiracy,2and making terroristic threats.3 At the conclusion of a 

preliminary hearing on August 15, 2016, all charges against Appellee were 

dismissed as the municipal court found that the Commonwealth failed to 

establish a prima facie case with respect to all three charges. The 

Commonwealth sought permission from the trial court to refile the charges. 

On October 5, 2016, the trial court denied the Commonwealth’s motion to 

refile the charges. This timely appeal followed.4

The Commonwealth presents one issue for our review:

Did the [trial] court err in denying the refiling of the charges 

against [Appellee] on the basis of insufficient evidence for a 

prima facie case, where the Commonwealth established that 

[Appellee] threatened the victim in an effort to prevent the 

victim from testifying against her? 

Commonwealth’s Brief at 4.

In its sole issue, the Commonwealth argues that it presented sufficient 

evidence to establish a prima facie case of witness intimidation. “At the 

____________________________________________

1

 18 Pa.C.S.A. § 4952(a).

2

 18 Pa.C.S.A. § 903(c). 

3

 18 Pa.C.S.A. § 2706(a)(1).

4

 The trial court did not order the Commonwealth to file a concise statement 

of errors complained of on appeal (“concise statement”). See Pa.R.A.P. 

1925(b). Nonetheless, the Commonwealth filed a concise statement on 

October 25, 2016. On December 23, 2016, the trial court issued its opinion 

pursuant to Pennsylvania Rule of Appellate Procedure 1925(a).
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preliminary hearing stage of a criminal prosecution, the Commonwealth need 

not prove the defendant’s guilt beyond a reasonable doubt, but rather, must 

merely put forth sufficient evidence to establish a prima facie case of guilt.” 

Commonwealth v. Karetny, 880 A.2d 505, 529 (Pa. 2005). “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.” 

Commonwealth v. Huggins, 836 A.2d 862, 866 (Pa. 2003) (citation 

omitted). “[T]he evidentiary sufficiency, or lack thereof, of the 

Commonwealth's prima facie case for a charged crime is a question of law as 

to which an appellate court’s review is plenary.” Karetny, 880 A.2d at 513 

(citation omitted). 

An individual commits witness intimidation 

if, with the intent to or with the knowledge that [her] conduct 

will obstruct, impede, impair, prevent[,] or interfere with the 

administration of criminal justice, [s]he intimidates or attempts 

to intimidate any witness or victim to[ . . . w]ithhold any 

testimony, information, document[,] or thing relating to the 

commission of a crime from any law enforcement officer, 

prosecuting official[,] or judge.

18 Pa.C.S.A. § 4952(a)(3). “[A]ctual intimidation of a witness is not an 

essential element of the crime.” Commonwealth v. Collington, 615 A.2d 

769, 770 (Pa. Super. 1992), appeal denied, 625 A.2d 1191 (Pa. 1993). 

Instead, “[t]he crime is committed if one, with the necessary mens rea, 

‘attempts’ to intimidate a witness or victim.” Id. “The trier of the facts, 
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therefore, could find [Appellee] attempted to intimidate [her] accuser and 

that [she] did so intending or, at least, having knowledge that [her] conduct 

was likely to, impede, impair, or interfere with the administration of criminal 

justice.” Id. 

In this case, Fuscellaro testified at the preliminary hearing that 

Appellee and her sister attempted to run Fuscellaro over with a car. N.T., 

8/15/2016, at 8. Fuscellaro was planning on testifying against Appellee on 

that matter. On the day they were scheduled for court, Appellee and her 

sister approached Fuscellaro in the hallway outside of the courtroom. 

Appellee raised a clenched fist to Fuscellaro’s face and threatened “you 

better drop the charges.” Id. at 9. Fuscellaro testified that she felt scared 

and intimidated. Id. at 10. This was sufficient evidence to provide probable 

cause that Appellee intimidated Fuscellaro to withhold testimony against 

Appellee. Cf. Huggins, 836 A.2d at 866 (Commonwealth need only provide 

sufficient evidence to show that there is probable cause that a defendant 

committed an offense in order to meet its burden at a preliminary hearing.). 

Moreover, even if Fuscellaro were not intimidated, the reasonable inference 

from her testimony and the surrounding circumstances was that Appellee 

intended to intimidate Fuscellaro. 

The municipal court and the trial court mistakenly made credibility 

determinations when determining if the Commonwealth established a prima 

facie case of witness intimidation. It is well-settled that such credibility 
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determinations cannot be made when deciding if the Commonwealth 

established a prima facie case. See Commonwealth v. Mitchell, 152 A.3d 

355, 359 n.1 (Pa. Super. 2016), appeal denied, 2017 WL 2362575 (Pa. May 

31, 2017) (collecting cases). 

In its Rule 1925(a) opinion, the trial court mistakenly stated that only 

“threats of violence, shooting, kidnapping, inflicting serious bodily injury, 

and killing the victim or witness,” violate section 4952. Trial Court Opinion, 

12/23/2016, at 6. The threat of extreme violence is not necessary to prove 

witness intimidation. “[I]ntimidation may be accomplished with no words at 

all, for a mere look or posture can bully, threaten, coerce, frighten, or 

intimidate beyond question.” Commonwealth v. Doughty, 126 A.3d 951, 

957 (Pa. 2015). Even an offer of a pecuniary benefit may constitute witness 

intimidation. See id. As our Supreme Court emphasized, it is for the factfinder to weigh the totality of the circumstances. See id. In other words, it 

is not a task for the municipal court at a preliminary hearing. In this case, 

the Commonwealth provided sufficient evidence to establish a prima facie

case that Appellee intimidated (or at a minimum attempted to intimidate) 

Fuscellaro by threatening physical violence. Accordingly, the Commonwealth 

established a prima facie case that Appellee violated section 4952(a)(3) and 
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the trial court erred by denying the Commonwealth’s motion to refile that 

charge.5

Order reversed. Case remanded. Jurisdiction relinquished. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/1/2017

 

____________________________________________

5

 Although the docket states Appellee was charged with violating 18 

Pa.C.S.A. § 4952(a)(1), the criminal complaint charged Appellee generally 

under section 4952(a). See Criminal Complaint, 7/26/2016, at 1. 

Therefore, the foregoing analysis examines whether Appellee violated any 

portion of section 4952, specifically section 4952(a)(3). Cf. 

Commonwealth v. Berry, 2017 WL 2927441, *3 (Pa. Super. July 10, 

2017) (the charging document, not the docket, controls what statute a 

defendant is charged with violating).