                              [J-27-2015][M.O. – Eakin, J.]
                      IN THE SUPREME COURT OF PENNSYLVANIA
                                   MIDDLE DISTRICT


COMMONWEALTH OF PENNSYLVANIA,                 :   No. 120 MAP 2014
                                              :
                Appellee                      :   Appeal from the Order of the Superior
                                              :   Court dated 3/26/14 at No. 998 MDA
                                              :   2013 affirming the judgment of sentence
                v.                            :   of the Cumberland County Court of
                                              :   Common Pleas, Criminal Division,
                                              :   entered 5/7/13 at No. CP-21-CR-2182-
                                              :   2012
JASON ANDREW DOUGHTY,                         :
                                              :
                Appellant                     :   ARGUED: April 7, 2015




                               CONCURRING OPINION


MR. CHIEF JUSTICE SAYLOR                                DECIDED: November 18, 2015


       I agree with the majority that the Court in Commonwealth v. Brachbill, 520 Pa.

533, 555 A.2d 82 (1989), incorrectly superimposed one of Section 4952’s enhancement

criteria upon the substantive provisions defining the core elements of the offense,

thereby inappropriately permitting the Commonwealth to establish “intimidation” via the

mere fact of an inducement. See Majority Opinion, slip op. at 10-11. I have difficulty

with the majority opinion, however, to the extent it suggests that the enhanced grading

provision applies only where an act of inducement itself also has the effect of

intimidating.   See id. at 11 (“The legislature did not state that inducements cannot

suffice to constitute intimidation; it said the opposite.”); id. (“Whether an offer of a

pecuniary or other benefit contains sufficient indicia of intimidation is to be determined

by the fact finder[.]”).
      The jurors in the present case were not instructed to determine whether the

inducement which Appellant offered to his wife had an intimidating effect. Instead, the

charge issued by the trial court identified intimidation and inducement as independent

elements of the overarching felony-three offense, as follows:

             The defendant has been charged with intimidation of a
             witness or victim. To find the defendant guilty of this
             offense, you must find that each of the following elements
             has been proven beyond a reasonable doubt:

             First, that the defendant intimidated or attempted to
             intimidate a witness or victim into withholding testimony or
             information relating to the commission of a crime from a law
             enforcement officer, prosecuting official, or judge.

             Second, that the defendant did so with the intent to, or with
             the knowledge that his conduct would, obstruct, impede,
             impair, prevent, or interfere with the administration of
             criminal justice; and

             Third, that the defendant offered any pecuniary or other
             benefit to the witness or victim.


N.T., May 7, 2013, at 184-85 (emphasis added).          To my mind, this approach is

consistent with the governing statute.1

      I also believe some reflection is due concerning the appropriate contexts in which

this Court will act to overrule its own previous opinions. Ordinarily, I would not be

inclined to consider overturning a decision which has no present controlling effect.

Along these lines, I do not see that it is truly necessary at this time to address

Brachbill’s holding, given that the jury at Appellant’s trial received a charge which

1
  Parenthetically, the prosecution apparently proceeded on an all-or-nothing basis
relative to the aggravated crime, as the Commonwealth does not appear to have sought
an instruction which would have afforded the jurors the opportunity to return a verdict on
the core offense (carrying the grade of a second-degree misdemeanor).


                            [J-27-2015][M.O. – Eakin, J.] - 2
tracked the statutory elements of the offense in issue (rather than Brachbill’s

reformulation of it), and since sufficient facts were presented from which intimidation

could be discerned exclusive of the inducement. See Commonwealth v. Doughty, CP-

21-CR-2182-2012, slip op. at 2 n.7 (C.P. Cumberland July 30, 2013) (“[T]he

Defendant’s words and his tone produced a bumper crop that would feed a multitude.

We have shared only a taste of Defendant’s tirade.”). Nevertheless, I find Brachbill to

be so confounding -- in terms of the proper application of foundational principles of

statutory construction in the criminal-law context -- that I support the majority’s decision

to proceed beyond what technically is necessary to the resolution of the present

controversy, in furtherance of the broader administration of justice.




                             [J-27-2015][M.O. – Eakin, J.] - 3
