J-A26031-18


                                2019 PA Super 16

 COMMONWEALTH OF PENNSYLVANIA             :      IN THE SUPERIOR COURT OF
                                          :           PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 CHARLES F. NEVELS, III                   :
                                          :
                    Appellant             :      No. 1354 WDA 2017

           Appeal from the Judgment of Sentence August 25, 2017
   In the Court of Common Pleas of Allegheny County Criminal Division at
                      No(s): CP-02-CR-0011118-2015


BEFORE: BENDER, P.J.E., SHOGAN, J., and MURRAY, J.

DISSENTING OPINION BY SHOGAN, J.:                   FILED JANUARY 18, 2019

      Although the Majority presents a thoughtful analysis of the facts and law

in this matter, I am compelled to disagree with its determination regarding

Appellant’s challenge to his two convictions of retaliation against a witness,

victim or party. Thus, I respectfully dissent.

      Appellant argues that his convictions for retaliation against a witness,

victim or party cannot be upheld because there is no indication that Appellant

sought retaliation against persons who were witnesses, victims or parties in a

civil matter. Appellant’s Brief at 48-49. Specifically, Appellant contends that

18 Pa.C.S. § 4953 requires that the person harmed by Appellant’s unlawful

act be a witness, victim or a party in a civil matter. Id. at 48. Appellant

further notes that there is no evidence that the underlying judicial matter,

from which Appellant’s conduct stemmed, was civil in nature. Id. Likewise,
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the Commonwealth essentially concedes that fact stating, “It does not appear

that the victims were involved in any civil matter that prompted [A]ppellant’s

criminal behavior toward them. Consequently, this Court may determine that

the evidence was insufficient with regard to these charges.” Commonwealth’s

Brief at 45 (emphasis in original). I agree.

      Review of this issue focuses upon the interpretation of a statute and its

application of proper legal principles. These are questions of law for which

our standard of review is de novo and our scope of review is plenary.

Commonwealth v. Lynn, 114 A.3d 796, 817-818 (Pa. 2015).

      When the parties read a statute in two different ways and the statutory

language is reasonably capable of either construction, the language is

ambiguous. Commonwealth v. Giulian, 141 A.3d 1262, 1268 (Pa. 2016).

The rule of lenity states, “[it] is axiomatic that . . . penal statutes must be

strictly construed, with ambiguities being resolved in favor of the accused.”

Commonwealth v. Rivera, 10 A.3d 1276, 1284 (Pa. Super. 2010).

However, the rule of lenity is applicable only when the penal statute has been

determined to be ambiguous. Commonwealth v. Jarowecki, 985 A.2d 955,

963 (Pa. 2009).

      The statutory language at issue here provides as follows:

      § 4953. Retaliation against witness, victim or party

           (a) Offense defined.-- A person commits an offense if he
      harms another by any unlawful act or engages in a course of
      conduct or repeatedly commits acts which threaten another in


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         retaliation for anything lawfully done in the capacity of witness,
         victim or a party in a civil matter.

18 Pa.C.S. § 4953(a).

         My review of the statute reflects that the current version of Section 4953

was enacted by the General Assembly on December 20, 2000.                The prior

version of the statute provided: “A person commits an offense if he harms

another by unlawful act in retaliation for anything lawfully done in the capacity

of witness or victim.” As the Majority aptly points out, “the current version,

which took effect on December 20, 2000, added the phrase ‘or a party in a

civil matter.’”    Majority Opinion at 18.      The Majority concludes that the

additional language “in a civil matter” should only modify the immediately

preceding word “party” and not the words “witness” and “victim.” In support

of this broad conclusion, the Majority relies upon the fact that two published

cases, Commonwealth v. Ostrosky, 909 A.2d 1224, 1232-1233 (Pa. 2006)

and Commonwealth v. Brewer, 876 A.2d 1029 (Pa. Super. 2005), had

applied the statute in criminal proceedings.         Majority Opinion at 18-19.

However, it is my observation that neither of the two cited cases was

presented with the exact issue set forth by Appellant, nor did either case make

any holding on the matter at issue. Therefore, I cannot conclude that those

cases are controlling precedent for purposes of our analysis of Appellant’s

issue.     Rather, I am constrained to conclude that the current statutory

language, which includes the limiting phrase “in a civil matter,” is capable of

being read in various manners. First, the phrase could require that the person

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against whom retaliation is sought be involved “in a civil matter” as a witness,

victim or party, thereby applying the limiting phrase to all the terms preceding

the phrase. The second reading of the language could require that the person

against whom retaliation is sought be a witness in any proceeding, but only a

victim or party “in a civil matter,” thereby applying the limiting phrase to the

two terms immediately preceding the phrase. The third reading could require

that the person against whom retaliation is sought be a witness or a victim in

any proceeding, but only a party “in a civil matter,” thereby applying the

limiting phrase to the one term immediately preceding the phrase. Hence, I

conclude that the statute is patently ambiguous.

      Therefore, I would apply the rule of lenity to this ambiguous statute and

interpret the language of the statute in the light most favorable to the

accused.   Such a reading would require that the persons against whom

Appellant sought retaliation be involved in a civil matter as a witness, victim

or party. However, as the Commonwealth concedes, the individuals were not

involved in a civil matter.   Consequently, I would vacate the judgment of

sentence as it pertains to Appellant’s convictions of retaliation against a

witness, victim or party and remand the case for resentencing.




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