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                                      2017 PA Super 90


    COMMONWEALTH OF PENNSYLVANIA                :   IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA

                 v.


    KAREEM OMAR VON EVANS

                          Appellant             :   No. 383 EDA 2016

           Appeal from the Judgment of Sentence November 20, 2015
                 In the Court of Common Pleas of Bucks County
              Criminal Division at No(s): CP-09-CR-0007695-2014

BEFORE:      STABILE, DUBOW, JJ., and STEVENS, P.J.E.*

CONCURRING OPINION BY STEVENS, P.J.E.:                       FILED APRIL 06, 2017

        I would find Appellant's conduct must go unpenalized only because the

trial court made      a   specific finding of fact that he did not intend to intimidate

the victim with his offer of pecuniary benefit.          Notwithstanding the court's

identification of both       a   brutal underlying crime endured by the victim and

the unavoidable intimidation she would have experienced from Appellant's

menacing offer had it reached her, the court did not infer from such

evidence that it was Appellant's conscious object to intimidate the victim

through the offer.         Indeed, the court credited Appellant's word that he did

not mean to intimidate the victim, and it, instead, supported its verdict

exclusively on the intimidating effect the offer would have had. But for the




*   Former Justice specially assigned to the Superior Court.
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court's finding of fact in this regard, I would affirm the judgment of

sentence.

          Because Appellant's offer of pecuniary benefit never reached the

victim, the Commonwealth could make               a   case for Section 4952 Intimidation

of   a   Witness only upon proof that Appellant attempted to intimidate her. "A

person commits an attempt when, with intent to commit a specific crime, he

does any act which constitutes        a   substantial step toward the commission of

that crime."       18 Pa.C.S. § 901(a) (emphasis added).                 "A person acts

intentionally with respect to     a   material element of an offense when[,] if the

element involves the nature of his conduct or                a   result thereof, it is his

conscious object to engage in conduct of that nature or to cause such                    a

result."     18 Pa.C.S. § 302(b)(1) (emphasis added).                For example, on a

charge of Attempted Aggravated Assault, evidence must prove that, when                  a

defendant fired his gun, it was his intention or "conscious object" to inflict

serious bodily injury. See Commonwealth v. Hall, 630 A.2d 537, 541 (Pa.

2003).      Here, therefore, the Commonwealth bore the burden of proving it

was Appellant's conscious         object to commit the material element of

intimidation.

          In the non -jury trial, however, the trial court accepted Appellant at his

word that he intended only to "pay off" the victim, not to intimidate her:

"So I've considered the facts of the case, the nature of the case, and the

reasons that one would commit such           a   crime. And you just told me why you

did this and I've accepted what you              just told me." N.T. 11/20/15 at 27.

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Similarly, while the court later expressed in its Pa.R.A.P. 1925(a) opinion

that the victim would have necessarily felt intimidated by Appellant's offer

had she received it, it nevertheless stopped short of inferring from the

nature of the offer and the related consequences that Appellant intended to

intimidate.       In fact, it identified an absence of intent:    "Appellant may not

have considered his conduct as intimidating, but he should not receive               a

benefit for his lack of appreciation for basic human sensitivities and what

would be [his victim's] natural reaction to his conduct." Trial Court Opinion,

5/13/16 at    9   (emphasis added).

      Essentially, in the trial court's own words, it based Appellant's

conviction not on requisite proof that it was Appellant's conscious object to

intimidate the victim-indeed, the court specifically found Appellant did not

mean to intimidate-but, instead, on proof that the victim would have felt

intimidated under the circumstances.              Having explicitly found an intent to

intimidate lacking, the court could not appropriately rely solely on this latter

basis-the effect upon the victim-to establish the mens rea element of              an

attempt to intimidate.        It   is   for this reason, alone, that I believe we are

constrained to vacate judgment of sentence.

      Had the finder of fact not credited Appellant's avowals           that he acted
without intent, I would have deemed the totality of circumstances sufficient

to support    a    reasonable inference that Appellant attempted to engage in

intimidating behavior.



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        "[A pecuniary] inducement may or may not intimidate," and whether it
"contains sufficient indicia of intimidation       is   to be determined by the fact

finder and assessed under the totality of circumstances, cognizant that proof

of manifest threats is not required."          Commonwealth v. Doughty, 126
A.3d 951, 957 (Pa. 2015) (noting "a mere look or posture can             .   .   .   intimidate

beyond question.").         It   is   axiomatic, moreover, that we consider the

evidence in this regard in the light most favorable to the Commonwealth as

verdict winner. Id. at 958.

        A    totality of circumstances assessment of the present facts involves
viewing Appellant's attempted offer not in isolation but within an historical

context. The first time Appellant met the victim, he and his cohort subjected

her to   a   horrific multiple rape -at -shotgun -point. So considered, Appellant's

attempt afterward to reach the victim through an intermediary and convey

his desire that she keep quiet in exchange for money carried with it an

inherent element of menace and coercion deriving from the profoundly

violative and merciless nature of their initial meeting.

        Doughty includes within the bounds of           18 Pa.C.S. § 4952 intimidation

those ostensible offers of benefit that implicitly intimidate under the

circumstances.       Id. at 957.      Here, the only history between Appellant and

his victim involved extreme violence and utter disregard for her humanity.

In light of this history, Appellant's attempt to contact her       a   second time may

reasonably be viewed as bearing sufficient indicia of an intimidating message

that this was an offer the victim "should not refuse." Id. For this reason, I

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conclude that the totality of circumstances allowed for the reasonable

inference that it was, indeed, Appellant's conscious object-his intent-to

engage in conduct of an intimidating nature.

        Accordingly, I would find the Commonwealth met its burden of proof

and would affirm on that basis, had not the trial court made the specific

finding of fact that Appellant did not intend to intimidate.




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