J-S73022-18


                              2019 PA Super 22

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT
                                                            OF
                                                       PENNSYLVANIA
                          Appellant

                     v.

JOHN CYRAN,

                          Appellee                    No. 578 WDA 2018


                Appeal from the Order Entered April 6, 2018
               In the Court of Common Pleas of Potter County
            Criminal Division at No(s): CP-35-CR-0000160-2017

BEFORE: GANTMAN, P.J., BENDER, P.J.E., and OLSON, J.

OPINION BY BENDER, P.J.E.:                    FILED FEBRUARY 1, 2019

      The Commonwealth appeals from the trial court’s April 6, 2018 order

dismissing 27 counts of possession of a firearm, 18 Pa.C.S. § 6105(a)(1),

charged against Appellee, John Cyran. After careful review, we affirm.

      On July 14, 2017, Appellee was involved in an altercation, during which

he allegedly pointed a firearm at the victim and threatened him. A subsequent

search of Appellee’s home revealed 27 firearms, and the Commonwealth

charged him with 27 counts of possession of a firearm by a person prohibited.

That offense is defined as follows:

      (a) Offense defined.--

         (1) A person who has been convicted of an offense
         enumerated in subsection (b), within or without this
         Commonwealth, regardless of the length of sentence or
         whose conduct meets the criteria in subsection (c) shall not
         possess, use, control, sell, transfer or manufacture or obtain
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         a license to possess, use, control, sell, transfer or
         manufacture a firearm in this Commonwealth.

18 Pa.C.S. § 6105(a)(1) (emphasis added).

      While Appellee has not been convicted in Pennsylvania of an offense

enumerated in section 6105(b), that provision also includes “[a]ny offense

equivalent to any of the above-enumerated offenses under the statutes of any

other state or of the United States.” 18 Pa.C.S. § 6105(b). Here, Appellee

was previously convicted in New York of tampering with a witness, a crime

which is defined as follows:

      A person is guilty of tampering with a witness when, knowing that
      a person is or is about to be called as a witness in an action or
      proceeding, (a) he wrongfully induces or attempts to induce such
      person to absent himself from, or otherwise to avoid or seek to
      avoid appearing or testifying at, such action or proceeding, or (b)
      he knowingly makes any false statement or practices any fraud or
      deceit with intent to affect the testimony of such person.

N.Y.P.L. § 215.10. According to the Commonwealth, this offense is equivalent

to Pennsylvania’s crime of intimidation of a witness, which is an enumerated

offense under section 6105(b), and is defined as follows:

      (a) Offense defined.--A person commits an offense if, with the
      intent to or with the knowledge that his conduct will obstruct,
      impede, impair, prevent or interfere with the administration of
      criminal justice, he intimidates or attempts to intimidate any
      witness or victim to:

         (1) Refrain from informing or reporting to any law
         enforcement officer, prosecuting official or judge concerning
         any information, document or thing relating to the
         commission of a crime.

         (2) Give any false or misleading information or testimony
         relating to the commission of any crime to any law
         enforcement officer, prosecuting official or judge.


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         (3) Withhold any testimony, information, document or thing
         relating to the commission of a crime from any law
         enforcement officer, prosecuting official or judge.

         (4) Give any false or misleading information or testimony or
         refrain from giving any testimony, information, document or
         thing, relating to the commission of a crime, to an attorney
         representing a criminal defendant.

         (5) Elude, evade or ignore any request to appear or legal
         process summoning him to appear to testify or supply
         evidence.

         (6) Absent himself from any proceeding or investigation to
         which he has been legally summoned.

18 Pa.C.S. § 4952(a).

      Based on its determination that N.Y.P.L. § 215.10 set forth an offense

that is equivalent to the offense defined by section 4952, the Commonwealth

charged Appellee with the 27 counts of possession of a firearm by a person

prohibited under section 6105(a)(1). Appellee, however, disagreed that the

crimes are equivalent and, thus, he filed an omnibus pretrial motion seeking

the dismissal of his charges under section 6105(a)(1). Following a hearing on

March 5, 2018, the trial court was persuaded by Appellee’s position; thus, it

issued an order and accompanying opinion on April 6, 2018, granting his

motion and dismissing the 27 counts of possession of a firearm by a person

prohibited.

      The Commonwealth filed a timely notice of appeal, certifying that the

court’s order substantially handicaps or terminates its prosecution of

Appellee’s case.   See Pa.R.A.P. 311(d).   The trial court did not direct the

Commonwealth to file a Pa.R.A.P. 1925(b) statement, and it issued a Rule



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1925(a) statement indicating that it was relying on the rationale set forth in

its April 6, 2018 opinion to support its dismissal of the at-issue charges.

Herein, the Commonwealth presents one claim for our review:

      1. Did the [t]rial [c]ourt commit an error or law or abuse its
         discretion where it concluded that [N.Y.P.L. §] 215.10
         (Tampering with a Witness) was not substantially similar to 18
         Pa.C.S.[] § 4952 (Intimidation of a Witness), thus terminating
         or substantially handicapping the Commonwealth’s case
         against [Appellee] for possession of firearms in violation of 18
         Pa.C.S.[] § 6105(a)(1)?

Commonwealth’s Brief at 2.

      The issue before this Court is whether New York’s tampering with a

witness offense is equivalent to Pennsylvania’s intimidation of a witness crime,

such that Appellee’s New York conviction makes him a person prohibited from

possessing a firearm under section 6105(a)(1).         In Commonwealth v.

Robertson, 722 A.2d 1047 (Pa. 1999), our Supreme Court defined an

‘equivalent offense’ as being one “which is substantially identical in nature and

definition as the out-of-state or federal offense when compared to the

Pennsylvania offense.”    Id. at 1049 (emphasis and citation omitted).       The

Robertson Court further elucidated that, in determining whether offenses are

substantially identical, a court should compare the requisite elements of the

crime, including the actus reus and the mens rea. Id. Additionally, not only

must the elements of the crimes be compared, but we must also compare “the

conduct to be prohibited and the underlying public policy of the two statutes.”

Id.



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      In the present case, the Commonwealth first avers that the at-issue

offenses have equivalent elements. Specifically, the Commonwealth insists

that they share the same mens rea of “knowingly” engaging in the proscribed

conduct. Commonwealth’s Brief at 7. Regarding the actus reus element of

each crime, the Commonwealth argues as follows:

      Section 6105 creates liability if a defendant “intimidates or
      attempts to intimidate any witness or victim to: . . . Withhold any
      testimony . . . [or] absent himself from any proceeding or
      investigation to which he has been legally summoned.” 18 Pa.C.S.
      [§] 4952. Similarly, [N.Y.P.L. §] 215.10 creates liability when a
      defendant “wrongfully induces or attempts to induce [a witness]
      to absent himself from . . . [a] proceeding.” N.Y.P.L. § 215.10.
      While [s]ection 4952 refers to “intimidation” and [N.Y.P.L. §]
      215.10 refers to “inducement,” the requisite action is the same,
      namely[,] coercing a witness who has been called to testify into
      changing their testimony or not appearing.

Id. at 7-8.

      The Commonwealth’s argument is unconvincing. While “[b]oth statutes

seek to protect witnesses who are to be called to testify before a tribunal from

coercion and require action be taken by the offender in order for a violation to

occur[,]” we agree with the trial court that the crimes differ in what type of

action by the offender is required.      Trial Court Opinion, 4/6/18, at 4.

Specifically, in Commonwealth v. Doughty, 126 A.3d 951 (Pa. 2015), our

Supreme Court clarified that, in order to prove intimidation of a witness under

section 4952, the Commonwealth must demonstrate intimidation, not merely

inducement. Id. at 957. The Doughty Court stressed that an inducement —

such as “an offer of a pecuniary or other benefit” — may contain “sufficient



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indicia of intimidation” to constitute an offense under section 4952.      Id.

However, an offer of inducement alone, without proof of intimidation, will not

suffice to establish the offense of intimidation of a witness. Id.

      In contrast, the actus reus of New York’s tampering-with-a-witness

crime under N.Y.P.L. § 215.10 seemingly can be satisfied by mere inducement

alone, as there are differing degrees of the offense of tampering with a

witness, several of which have an actus reus that is more akin to intimidation

than inducement. See N.Y.P.L. §§ 215.11, 215.12, 215.13. Additionally, New

York has offenses of varying degrees that specifically refer to ‘intimidating a

victim or witness.’ See N.Y.P.L. §§ 215.15, 215.16, 215.17. In fact, Appellee

was charged with (and ultimately acquitted of) intimidating a victim or witness

under N.Y.P.L. § 215.15; however, he was only convicted of tampering with a

witness under N.Y.P.L. § 215.10.

      In sum, because N.Y.P.L. § 215.10 refers only to the inducement of a

witness, while section 4952 requires intimidation, the offenses do not share a

substantially similar actus reus. Therefore, they are not equivalent crimes for

purposes of section 6105(b), and the trial court did not err in dismissing

Appellee’s 27 counts under section 6105(a)(1).

      Order affirmed.

      President Judge Gantman joins this opinion.

      Judge Olson concurs in the result.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/1/2019




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