J.   S76020/16
                                 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, J., DUBOW, J., and STEVENS, P.J.E.

OPINION BY DUBOW, J.:                                   FILED APRIL 06, 2017

         Appellant, Kareem Omar Von Evans, appeals from the Judgment of

Sentence entered in the Bucks County Court of Common Pleas following his

conviction of Criminal Solicitation of Witness Intimidation.      After careful

review of the facts of the case and current case law, we conclude that the

Commonwealth's evidence is insufficient to demonstrate that the Appellant

intended to "intimidate" the victim not to testify at the underlying trial.

Rather, the evidence demonstrates that Appellant merely intended to

"induce" the victim not to testify. Therefore, we are constrained to reverse

Appellant's conviction of Criminal Solicitation of Witness Intimidation and

vacate his Judgment of Sentence.


*    Former Justice specially assigned to the Superior Court.
J.   S76020/16

        This    matter   arises     from    Appellant's     telephone      and        in -person

conversations with his girlfriend while incarcerated and awaiting trial in                     a


rape case.' In those conversations, Appellant asked his girlfriend to contact

the victim in the rape case and offer to pay her not to testify. His girlfriend

was never able to contact the victim.

        After    obtaining    the       evidence    of    these      conversations,           the

Commonwealth        charged       Appellant with      one    count     each      of    Criminal

Solicitation to     Intimidate      a   Witness,   Conspiracy to        Commit Criminal

Solicitation, and Witness Intimidation.

         On March 16, 2015, Appellant waived his            right to   a   jury trial    in   the

instant matter and agreed to        a   stipulated waiver trial. The parties stipulated

to certain facts, which they then submitted to the court.

        The trial court summarized the evidence from the stipulated facts that

it found relevant as follows:

           The stipulated facts indicate that Appellant called Kalesha
           Cruz on multiple occasions between August 13, 2014 and
           September 25, 2014 to encourage her to contact the
           complaining witness in his underlying rape case so as to

'                    jury convicted Appellant of Rape by Threat of Forcible
     On March 3, 2015, a
Compulsion, Involuntary Deviate Sexual Intercourse by Threat of Forcible
Compulsion, Robbery by Threat of Serious Bodily Injury, Robbery by Force,
Terroristic Threats, Theft by Unlawful Taking, Criminal Conspiracy to Commit
Robbery by Threat of Serious Bodily Injury, and Criminal Conspiracy to
Commit Theft. The court sentenced Evans to an aggregate sentence of 40 to
80 years' incarceration.      This Court affirmed Appellant's Judgment of
Sentence. See Commonwealth v. Evans, No. 2475 EDA 2015 (Pa. Super.
November 21, 2016) (unpublished memorandum).



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          attempt to give her money in exchange for no longer
          appearing at judicial proceedings in his case. Appellant
          further discussed the possibility of Ms. Cruz contacting the
          victim during face-to-face visits that she made to the
          Bucks County Correctional Facility on various occasions
          during that same time.

Trial Ct. Op., 5/13/16, at 7.

       The trial court also summarized the testimony of the Appellant's

girlfriend at the underlying rape trial in which she testified that the Appellant

asked her to offer money to the rape victim in exchange for the rape victim

not testifying:

          At Appellant's rape trial, Ms. Cruz confirmed the fact that
          Appellant instructed her to attempt to locate the victim so
          as to give her financial compensation in exchange for not
          testifying against Appellant. Ms. Cruz was further able to
          identify the above -referenced conversations between her
          and Appellant during which Appellant discussed his plan.
          Ms. Cruz detailed that she received information from
          Appellant's family concerning the name of the victim, and
          she was sent screenshots of the victim's [B]ackpage
          account. After receiving the images, Ms. Cruz called the
          victim's phone number three (3) times from her cell phone
          and three (3) times from a pay phone, but only heard a
          sound resembling a fax machine in each instance.
          Additionally, Ms. Cruz identified phone conversations with
          Appellant where they would discuss her progress in
          attempting to contact the victim. Ms. Cruz reiterated that
          the reason she attempted to contact the victim was at the
          request of Appellant.
Id.
       The trial court also summarized the testimony of Appellant who

admitted at his rape trial that he talked to his girlfriend about paying the

victim in the rape case not to testify:




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              While testifying at trial, Appellant admitted to making the
              above -referenced phone calls to Ms. Cruz where he
              discussed attempting to contact the victim in his
              underlying rape trial. Similarly, Appellant disclosed that
              his intention was to pay the victim to secure her
              unavailability for trial. Appellant specifically conceded:

                 So my hopes to accomplish during the phone call
                was not to hurt anyone, but hoping if you give this
                person some money, that she wouldn't show up to
                court and put our family through this stress and this
                terrible incident to be accused of        So I hoped
                                                            .   .   .   .


                that if I could give her the money, that all of this
                could go away.

Id. at   8.

         Based on this evidence, the trial court found Appellant guilty of

Criminal Solicitation to Intimidate      a   Witness.2          On November 20, 2015, the

court sentenced Appellant to      a   term of     31/2   to 10 years' incarceration, which

was to run consecutively to the 40 to 80 year sentence imposed after his

conviction on the underlying charges.3

         Appellant timely appealed. Both Appellant and the trial court complied

with Pa.R.A.P. 1925.

2    18 Pa.C.S. § 902(a); 18 Pa.C.S. §       4952(a)(6), respectively.

3On November 30, 2015, Appellant filed a Motion to Modify and Reconsider
Sentence, in which he argued that his 431/2 to 90 year aggregate sentence is
illegal because it "constitutes a life sentence."        Mot. to Modify and
Reconsider Sentence., 11/30/15, at 2 (unpaginated). Appellant also argued
that the court's imposition in this matter of a sentence that runs consecutive
to the sentence in the underlying matter, rather than concurrently with that
sentence, "was unduly harsh considering the nature of the crime and the
length of imprisonment resulting from the consecutive sentences." Id. The
trial court held a hearing on Appellant's Motion on January 4, 2016;
however, Appellant withdrew the motion prior to the court's disposition.


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       Appellant raises one issue on appeal in which he challenges the

sufficiency of the Commonwealth's evidence in support of his conviction for

witness intimidation.    Appellant's Brief at 4.    Relying on the holding in

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

specifically argues that since the Commonwealth's evidence was limited to

an    offer of money not to testify in the underlying                 rape   case, the

Commonwealth failed to prove "intimidation" under the relevant statute.

Appellant's Brief at 12. Appellant concludes that as     a    result, the trial court

based its conclusion that Appellant intimidated or attempted to intimidate

the victim on speculation and not the facts of record.       Id. at   13.

        In reviewing the sufficiency of the evidence, our standard of review is

as follows:

          The standard of review for a challenge to the sufficiency of
          the evidence is to determine whether, when viewed in a
          light most favorable to the verdict winner, the evidence at
          trial and all reasonable inferences therefrom is sufficient
          for the trier of fact to find that each element of the crimes
          charged is established beyond a reasonable doubt. The
          Commonwealth may sustain its burden of proving every
          element beyond a reasonable doubt by means of wholly
          circumstantial evidence.

          The    facts and circumstances established by the
          Commonwealth need not preclude every possibility of
          innocence. Any doubt raised as to the accused's guilt is to
          be resolved by the fact -finder. As an appellate court, we
          do not assess credibility nor do we assign weight to any of
          the testimony of record. Therefore, we will not disturb the
          verdict unless the evidence is so weak and inconclusive
          that as a matter of law no probability of fact may be drawn
          from the combined circumstances.



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Commonwealth v. Vogelsong, 90 A.3d 717, 719                               (Pa.   Super. 2014)

(citations and quotations omitted).

         A defendant is   guilty of Intimidation of Witnesses 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                   .   .   .   [a]bsent

himself from any proceeding or investigation to which he has been legally

summoned." 18 Pa.C.S.         §   4952(a)(6).

        Pursuant to 18 Pa.C.S.            §   902,   a   defendant   is   guilty of Criminal

Solicitation to commit    a   crime if:

            with the intent of promoting or facilitating its commission
            he commands, encourages or requests another person to
            engage in specific conduct which would constitute such
            crime or an attempt to commit such crime or which would
            establish his complicity in its commission or attempted
            commission.

18 Pa.C.S. § 902(a).

       As an initial matter, it is clear        that Appellant's conversations with his

girlfriend demonstrated that he requested "another person to engage in

specific conduct."     See id.      The question before us, however, is whether

those acts constitute "an attempt to commit such crime."                    See id. In other

words, we must determine whether Appellant's request to his girlfriend to

make    a   pecuniary offer to the victim not to testify at the underlying rape

case establishes the crime of Witness Intimidation.




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         In Doughty, supra, our Supreme Court addressed the elements the

Commonwealth must establish to prove witness intimidation when the

defendant makes       a   pecuniary offer to    a   witness not to testify. As               a   general

matter, the Supreme Court held that whether "an offer of                           a   pecuniary or

other benefit contains sufficient indicia of intimidation                 is be    determined by

the fact[ -]finder and assessed under the totality of the circumstances,

cognizant that proof of manifest threats            is   not required."    Id.
         Applying this general principle to         a    case in which the defendant made

a    pecuniary offer to his wife not to testify at his aggravated assault trial, the

Supreme Court first           analyzed    the       explicit    language      of       the       Witness

Intimidation statute. The Supreme Court observed that the original version

of the Witness Intimidation statute used the term "induce." Doughty, 126

A.3d at 954. The legislature later amended the Witness Intimidation statute,

replacing the term "induce" with "intimidates."                Id. at 953-54.
         The   Doughty Court, thus, concluded that the fact -finder cannot infer
"intimidation" from the mere offer of           a   pecuniary benefit not to testify.                Id.
at 957. Rather, there must be other evidence from which the fact -finder can

infer intimidation, such as       a   prior relationship between the defendant and

victim or the manner in which the defendant made the pecuniary offer not to

testify:

            Where [Commonwealth v.]Brackbill[, 555 A.2d 82 (Pa.
            1989)] goes awry is in suggesting a pecuniary benefit, in
            and of itself, comprises intimidation. Such an inducement
            may or may not intimidate, but the legislature replaced the


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           element of inducement with the element of intimidation.
           The legislature did not state that inducements cannot
           suffice to constitute intimidation; it said the opposite.

Id.
        Applying this principle to the facts of Doughty,4 the Supreme Court

held that the     jury properly inferred the defendant's intent to "intimidate"
from other contact that the defendant had with the victim. Id. at 958.           In

particular, the defendant had      a   history of threatening his wife with severe

bodily injury and expressed strong invective when he made the pecuniary

offer to his wife not to testify. Id. Thus, these additional contacts between

the defendant and his wife were sufficient to infer an "intent to intimidate"

from the pecuniary offer.    Id.
        By way of   further example,   in   Commonwealth v. Lynch, 72 A.3d 706
(Pa Super.      2013), this Court sitting en banc, affirmed      a   6 to 12   year

Judgment of Sentence following the defendant's conviction of Intimidation of

a    Witness.    In Lynch, the trial court concluded that the Commonwealth

presented sufficient evidence of the defendant's intent to intimidate his

girlfriend, who was also the mother of his children, to refrain from testifying

against him at his trial for assaulting her.          Id. at 711-12.    The court

specifically inferred the defendant's manifest intent to intimidate from the

totality of the surrounding circumstances, emphasizing the close relationship

4 The Commonwealth charged Doughty with, and obtained convictions of,
Simple Assault, Harassment, and Intimidation of a Witness. Doughty, 126
A.2d at 952.


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the defendant had with his victim, the number of times the defendant asked

her not to testify, and the nature of the underlying crime.                Id. at 709.
        In the instant case, it is clear, as an initial matter, that Appellant's

conversation with his girlfriend to offer           a   pecuniary benefit to the victim not

to testify demonstrated Appellant's intent to "induce" the victim not to

testify.        The next question is whether there are other facts from which the

fact -finder could infer that Appellant intended to "intimidate" the victim so

that she would not testify.

       The trial court inferred Appellant's "intent to intimidate" from the

nature of the underlying crime and its speculation about the victim's

response to        a   pecuniary offer not to testify:

           It is [ ] beyond argument that [Appellant's] conduct would have
           intimidated his victim, despite his claims that such intimidation
           was not his intent. Appellant sought to contact his victim, who
           he was found by a jury of raping multiple times at shotgun -
           point. Any contact facilitated by the victim's rapist urging
           her  not to appear for judicial proceedings would
           undeniably intimidate her, or any reasonable person for
           that matter. 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
           her natural reaction to his conduct. As such, the stipulated
           evidence is sufficient to support Appellant's conviction [ ].

Trial Ct. Op. at 9 (emphasis added).

           Although we are horrified by the brutality of Appellant's actions in the

underlying crime, we do not agree that the contact during the underlying

crime alone            is   sufficient to establish that Appellant had the "intent to

intimidate." Unlike the facts          in   Doughty,    in this case   there was no evidence

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of   a   history of violent interactions between the Appellant and the victim and

no invective conversation making the pecuniary                    offer to the victim. Rather,

the Commonwealth's                   only evidence was        a   conversation between the

Appellant and        a   third party to make         a   pecuniary offer.     We conclude that

this, without more,        is    evidence merely of an intention to "induce," and not to

"intimidate"    a    witness from not testifying.

          The trial court focused on the impact that the potential offer of                   a


pecuniary benefit could have on the victim.                       The court cannot, however,

establish Appellant's intent from its speculation about the victim's response

to such an offer, had it been made.                 Rather, the correct legal analysis is on

the intent of Appellant, which the fact -finder must be able to reasonably

infer from the Appellant's actions and not from speculation about the victim's

reaction if contacted.

          Accordingly, we conclude that, while the factfinder may consider the

nature of the underlying crime in evaluating the totality of the circumstances

to determine whether the defendant intended to "induce" or to "intimidate"                    a


witness from not testifying at the trial for the underlying crime, the nature of

the underlying conviction, and speculation about the victim's response to an

offer, without more,            is   insufficient to establish that   a   defendant intended to

"intimidate"     a    witness and sustain           a    conviction of Witness Intimidation.

Thus, evaluating the totality of the circumstances, there is no legal basis to




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support the trial court's conclusion that Appellant committed the offense of

Witness Intimidation under the facts of this case.

        For the foregoing reasons we are constrained to reverse Appellant's

conviction of the offense of Criminal Solicitation of Witness Intimidation.

       Judgment of Sentence vacated.

       Judge Stabile joins this Opinion.

        President Judge Emeritus Stevens files   a   Concurring Opinion.

Judgment Entered.




J seph D. Seletyn,
Prothonotary

Date: 4/6/2017
