J-S75013-16



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                          IN THE SUPERIOR COURT OF
                                                            PENNSYLVANIA


                      v.

DARRELL HUNTER

                           Appellant                        No. 416 EDA 2015


            Appeal from the Judgment of Sentence January 9, 2015
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0003045-2014
                           CP-51-CR-0003048-2014



BEFORE: BOWES, MOULTON AND MUSMANNO JJ.

MEMORANDUM BY BOWES, J.:                               FILED OCTOBER 19, 2016

      Darrell Hunter appeals from the judgment of sentence of eight to

sixteen years incarceration, plus ten years reporting probation, imposed

following    his   conviction   for    intimidation    of   a   witness   or   victim

(“Intimidation”) and terroristic threats at action number 3045-2014, and

burglary, terroristic threats, and simple assault at action number 3048-2014.

We affirm.

      Appellant’s charges stem from an altercation between him and the

mother of his three daughters, Nikkisha Whitfield, on January 13, 2014.

Appellant and Ms. Whitfield had arranged for Appellant to spend time with

his daughters and Ms. Whitfield’s oldest son while she was absent from her
J-S75013-16



home.       When Ms. Whitfield left for the afternoon, Appellant was already

waiting outside her house. He followed Ms. Whitfield to her bus stop, but did

not get on the bus with her. Ms. Whitfield sensed Appellant was angry at

that time.

      When Ms. Whitfield returned home on the bus four or five hours later,

Appellant was waiting for her at the bus stop.      Perceiving that Appellant’s

anger had intensified in the interim, Ms. Whitfield decided to go to a

neighborhood bar, deeming it safer to be in a crowd. Appellant followed Ms.

Whitfield to the bar, and began drinking and making angry threats to other

patrons.     As a result of Appellant’s behavior, Ms. Whitfield decided to exit

the bar through its back door. She returned home using an alleyway running

behind her house.        As Ms. Whitfield entered her backyard, Appellant

emerged from the backdoor of her house and physically assaulted her,

causing injuries to her face, ribs, arms, elbow, and knee. When one of the

children opened the backdoor, Appellant fled.

      Ms. Whitfield entered her house, barricaded the backdoor with a chair,

and directed her daughter to call the police. While the police were standing

on Ms. Whitfield’s front porch, Appellant attempted to enter the house

through the barricaded backdoor.       With his body halfway into the house,

Appellant threatened and attempted to harm Ms. Whitfield and their

children.     He fled when police officers began pursuit.    Following a short

chase, Appellant was apprehended and arrested.

                                      -2-
J-S75013-16



      Later that evening, Ms. Whitfield contacted police to report that

Appellant had called her from a telephone located in the cell where he was

being held, and again threatened her and the children.         She stated that

Appellant was on the other line at that moment, and when an officer

investigated, Appellant was indeed using the telephone in the holding cell.

Over the next four months, while he was awaiting trial on the charges

arising from his assault on Ms. Whitfield, Appellant continued to contact Ms.

Whitfield, both over the phone and via letters. In these communications, he

threatened Ms. Whitfield, entreated her to either drop the charges or refuse

to testify in court, and offered her money in exchange for doing so.

      Following   a   bench     trial,    Appellant   was   convicted   of   the

abovementioned crimes.      He filed a timely appeal and complied with the

court’s order to file a Rule 1925(b) statement of errors complained of on

appeal. The court then authored its Rule 1925(a) opinion, and this matter is

ready for our consideration. Appellant raises a single issue for our review:

“Was not the evidence insufficient for conviction on the charge of witness

intimidation?” Appellant’s brief at 3.

      In reviewing claims challenging the sufficiency of the evidence, our

standard of review is well-settled:

      [W]e examine whether the evidence admitted at trial, and all
      reasonable inferences drawn therefrom, viewed in the light most
      favorable to the Commonwealth as verdict winner, support the
      jury’s finding of all the elements of the offense beyond a



                                         -3-
J-S75013-16



     reasonable doubt. The Commonwealth may sustain its burden
     by means of wholly circumstantial evidence.

Commonwealth v. Doughty, 126 A.3d 951, 958 (Pa. 2015).

     Appellant contends there was insufficient evidence to convict him of

intimidation as defined by 18 Pa.C.S. § 4952. In pertinent part, 18 Pa.C.S.

§ 4952 states:

     (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.

           (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.




                                   -4-
J-S75013-16



            (6) Absent [herself] from any proceeding or
               investigation to which [she] has been legally
               summoned.


      (b)   Grading.—

            (1) The offense is a felony of the degree indicated in
               paragraphs (2) through (4) if:

                                ***

                  (ii) The actor offers any pecuniary or other benefit
                  to the witness or victim, or with the requisite
                  intent or knowledge, to any other person.

18 Pa.C.S. § 4952(a) and (b)(1)(ii).

      Appellant asserts that proof of actual or attempted intimidation is a

necessary element to convict a person of intimidation, and other forms of

inducement are not sufficient to sustain such a conviction. Furthermore, he

argues that the evidence offered at trial failed to substantiate that he acted

with intent to intimidate Ms. Whitfield.     He maintains that any threats he

made to Ms. Whitfield were generalized threats, and not intended to deter

her from testifying. Similarly, later communications shared between the two

did not contain any threats or attempted threats aimed at preventing Ms.

Whitfield from appearing in court. Thus, Appellant concludes, the trial court

erred in finding otherwise, and his conviction for intimidation should be

vacated.

      Our Supreme Court examined the requirements for convicting an

individual for intimidation in Doughty, supra. Doughty was charged with


                                       -5-
J-S75013-16



intimidation following a domestic dispute wherein he physically assaulted his

wife. Following his arrest, he attempted to call his wife multiple times, but

she did not answer the telephone since talking to him upset her. Doughty

then employed his father to set up a three-way conversation. During that

conversation, Doughty insisted that his wife not testify against him and

instructed her to claim she made a mistake. He also informed her that if she

did testify he would “go to jail for two years, starve, and lose everything,”

invoked the sanctity of their marriage, and promised to pay any fines she

incurred if she was charged with making false statements. Doughty, supra

at 952.   As a result of this communication, the Commonwealth charged

Doughty with intimidation, of which he was ultimately convicted.

      On appeal, Doughty challenged the sufficiency of the evidence for his

intimidation conviction, asserting the Commonwealth failed to prove the

element of intimidation since his wife testified that she was not intimidated

by the phone call, and there was no other evidence of intimidation. Relying

on Commonwealth v. Brachbill, 555 A.2d 82 (Pa. 1989), this Court

rejected Doughty’s sufficiency claim, holding that “an individual violates [§]

4952(a) even where ‘the Commonwealth’s evidence only established

inducements and did not prove any threats or attempts or coercion.’” Id.

at 953 (quoting Brachbill, supra at 85) (emphasis in original).           Our

Supreme Court granted allocatur in Doughty to clarify the holding in

Brachbill.

                                    -6-
J-S75013-16



      The High Court found that Brachbill did not negate the need to prove

intimidation in favor of mere inducements.        Id. at 957.     However, it

reasoned that intimidation could be “accomplished with no words at all,” or

that “an offer or benefit [could] be presented in such a Machiavellian manner

as to contain an unarticulated act of intimidation.” Id. The Supreme Court

established that “[w]hether an offer of a pecuniary or other benefit contains

sufficient indicia of intimidation is to be determined by the fact finder and

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

manifest threats is not required.” Id. Hence, the Supreme Court overruled

Brachbill, “insofar as [it] is read to mean pecuniary inducement alone will

suffice without proof of intimidation[.]” Id.

      Instantly, Appellant concedes he “angrily called [Ms. Whitfield] and

made threatening remarks” shortly after his arrest. Appellant’s brief at 8.

Furthermore, he admits that he asked her to refrain from attending court in

later conversations.   Id.   Ms. Whitfield testified that Appellant sent her

threatening and hostile letters.   N.T. Trial, 10/29/14, at 27.   Within these

communications, Appellant asked Ms. Whitfield to “clear this up . . . for our

children.” Commonwealth’s Exhibit 10c.      He insisted that Ms. Whitfield drop

the charges and inform the District Attorney’s office that she had “made a

mistake.” Id. Appellant advised Ms. Whitfield that he would be coming into

some money due to a lawsuit, and promised her that if she dropped the

charges he would “make sure your [sic] good.” Id.

                                     -7-
J-S75013-16



      In recorded prison conversations, Appellant echoed these same

implorations, promising Ms. Whitfield that if she dropped the charges then

“as soon as I get out I can give you the money so you can get, get another

.   . . house or apartment[.]”        Commonwealth’s Exhibit 11a, 2/15/14.

Furthermore, he asked Ms. Whitfield to “go down there and drop these

charges . . . for my kids.” Id.

      The Pennsylvania Supreme Court clarified in Doughty, supra, that the

polestar of a conviction for intimidation is not necessarily actual or

attempted threats to a witness or victim. Rather, the courts view the totality

of the circumstances to determine whether a threat, attempted threat, or

inducement contains “sufficient indicia of intimidation.” Doughty, supra at

957. Here, Appellant perpetrated a brutal and unprovoked assault upon Ms.

Whitfield. Viewing Appellant’s numerous, subsequent interactions with Ms.

Whitfield in the light most favorable to the Commonwealth as the verdict

winner, we find sufficient evidence that his threats, pleas, and pecuniary

inducements were performed with the intent to, or knowledge that, his

conduct would obstruct, impede, impair, prevent or interfere with the

administration of criminal justice: i.e., that Appellant actions were intended

to convince Ms. Whitfield to withhold testimony or to fail to appear at

Appellant’s trial. Hence, Appellant is not entitled to relief.

      Judgment of sentence affirmed.




                                      -8-
J-S75013-16




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/19/2016




                          -9-
