J-S54013-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    ERNEST HAMILTON PYLE                       :
                                               :
                       Appellant               :   No. 1761 WDA 2017

              Appeal from the Judgment of Sentence May 2, 2017
               In the Court of Common Pleas of Armstrong County
              Criminal Division at No(s): CP-03-CR-0000784-2016


BEFORE: PANELLA, J., LAZARUS, J., and MURRAY, J.

MEMORANDUM BY PANELLA, J.                           FILED NOVEMBER 26, 2018

       A jury found Ernest Pyle guilty of intimidating a witness based on

charges he threatened Gregory McClafferty in an attempt to dissuade

McClafferty from testifying against Pyle’s son at a preliminary hearing. Pyle

contends the evidence at trial was insufficient to support his conviction. 1 We

affirm.



____________________________________________


1 Pyle’s appellate counsel did not comply with the trial court’s order requiring
a statement of issues to be raised on appeal. After the trial court noted this
failure in its opinion, counsel requested a remand under Pa.R.A.P. 1925(c)(3)
to permit him to file a nunc pro tunc statement. We remanded the case, but
counsel did not file a timely statement. The trial court once again penned an
opinion noting the absence of the statement. Counsel subsequently filed an
untimely statement, and the trial court filed an updated opinion addressing
the issue raised.
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       Pyle’s challenge to the sufficiency of the evidence raises a pure question

of law. See Commonwealth v. Jacoby, 170 A.3d 1065, 1076 (Pa. 2017).

We review the claim de novo, and review the entire record before us. See id.

       We examine whether the evidence admitted at trial is capable of

supporting a finding on every element of the offense at issue. See

Commonwealth v. Doughty, 126 A.3d 951, 958 (Pa. 2015). In doing so, we

view the evidence in the light most favorable to the verdict winner, drawing

all reasonable inferences from it. See id. The Commonwealth’s burden may

be met solely through circumstantial evidence. See id. The finder of fact is

entitled to believe all, some, or none of the evidence presented. See

Commonwealth v. Diggs, 949 A.2d 873, 877 (Pa. 2008).

       Pyle was charged with intimidating a witness, McClafferty, in an effort

to get McClafferty to not appear at a preliminary hearing for Pyle’s son, Rick.

To support this allegation, the Commonwealth was required to prove that Pyle:

(a) sought to intimidate McClafferty with (b) the knowledge or intent that his

actions would interfere with the administration of criminal justice by (c)

causing McClafferty not to testify at a preliminary hearing. See 18 Pa.C.S.A.

§ 4952(a)(1).




____________________________________________


We decline to find Pyle’s issue waived under these circumstances. See
Commonwealth v. Brown, 145 A.3d 184, 186 (Pa. Super. 2016) (exercising
discretion to review claims waived by untimely 1925(b) statement when trial
court has appropriately addressed the claims in its opinion).

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      Thus, as part of its case, the Commonwealth was required to establish

the existence of an underlying criminal prosecution in which McClafferty would

testify. McClafferty described the underlying crime at this trial:

      It was 2:30 in the morning Father’s Day night. I was in bed
      sleeping. I heard a loud vehicle pull into the driveway. I went to
      look out and I seen [sic] a shadow, somebody entering onto my
      porch.

      As I went to go to the door to turn on the light, the door kicked
      open and smacked me in the eye, in the head, and it was [Pyle’s
      son, Rick] trying to break in the door. He actually did kick the door
      open. Like I said, it smacked me in the forehead. By the time I
      got to the light and everything turned on, I recognized who it was
      … [a]nd he kept trying to kick in the door and my kitchen table is
      pretty close to the back door, so I actually reached over and
      grabbed a kitchen chair and jammed the door shut against the
      wall and I climbed on the top of the chair. I was involved in a bad
      motorcycle accident. My right leg is paralyzed from the knee
      down.

      [Rick] knew me because we worked on a couple jobs together and
      I supposedly told his boss that we did the job with that he was on
      heroin and so he lost his job, and that was the main reason that
      he come [sic] to my house and he wanted to rob me and beat me
      up.

N.T., Jury Trial, 3/9/17, at 29.

      Shortly before he was to testify at Rick’s preliminary hearing, Pyle and

his brother, George, pulled into McClafferty’s driveway. See id., at 30. Pyle

walked up to McClafferty’s door and asked to see what damage his son had

done. See id., at 31. Pyle pushed his way into the house, claiming he wanted

to see the damage from the inside. See id. McClafferty did not challenge Pyle,

but asked him to leave once he had seen the door from the inside. See id.




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      Pyle walked back out to the porch and asked McClafferty if he intended

to appear at the preliminary hearing. See id. McClafferty, fearing that violence

was imminent, answered that he did not have to. See id. Pyle asked if there

was anything he could do to keep McClafferty from testifying. See id. Pyle

offered to replace McClafferty’s door. See id., at 32.

      McClafferty declined the offer, noting he would purchase a new door

with the money he would receive through restitution. See id. Pyle again asked

if there was anything he could do to dissuade McClafferty from testifying. See

id. Still in fear, McClafferty lied and told Pyle the prosecution did not need his

testimony, as the State Police had assumed control of the case. See id.

      This statement enraged Pyle. See id. As he was leaving the porch, Pyle

turned to McClafferty and stated that McClafferty was “going to ruin five years

of [Rick’s] life for a stupid mistake[.]” Id. McClafferty replied that Rick was

only getting what he deserved. See id.

      Pyle continued to walk away from the porch, but turned and said, “if I

were you, Gregory, I would not be at that hearing tomorrow.” Id. At that

point, McClafferty’s friend and landlord, Robert Beers, intervened, and ordered

Pyle and his brother to leave the property. See id., at 33.

      Beers testified he saw Pyle talking to McClafferty on his porch. See id.,

at 39. He knew why Pyle would be talking to McClafferty, and felt he needed

to intervene because he knew McClafferty was scared of the Pyles. See id., at

40-41. After he told Pyle and his brother to leave, he heard Pyle say it would


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be in McClafferty’s best interest not to attend the preliminary hearing. See

id., at 39-40. Beers then immediately informed police of the incident. See id.,

at 41.

         Pyle contends the Commonwealth failed to prove he knowingly or

intentionally intimidated McClafferty. Instead, he argues, he was merely trying

to make things right with McClafferty and possibly offer him a pecuniary

benefit in exchange for not testifying. He correctly observes that pecuniary

inducement,      by   itself,   is   insufficient   to   establish   intimidation.   See

Commonwealth v. Doughty, 126 A.3d 951, 957 (Pa. 2015).

         However, even when a pecuniary benefit is offered, the circumstances

surrounding the offer can establish intimidation. See id. (“It is equally true

that an offer of benefit can be presented in such a Machiavellian manner as to

contain an unarticulated act of intimidation.”) McClafferty’s testimony reveals

circumstances rife with conduct conducive to intimidation. Pyle came to

McClafferty’s home on the day before the hearing. He forced his way inside.

And he informed McClafferty that it would be in McClafferty’s best interest to

not testify. The jury was entitled to infer that Pyle at least knew his words and

actions would have the effect of intimidating McClafferty. Pyle’s only argument

on appeal merits no relief.

         Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/26/2018




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