J-S26042-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    ERIC FRAZIER                               :
                                               :
                       Appellant               :   No. 2055 EDA 2017

             Appeal from the Judgment of Sentence May 22, 2017
     In the Court of Common Pleas of Delaware County Criminal Division at
                       No(s): CP-23-CR-0001371-2016


BEFORE:      BENDER, P.J.E., BOWES, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.:                            FILED JUNE 12, 2018

       Appellant Eric Frazier appeals from the judgment of sentence entered

by the Court of Common Pleas of Delaware County after a jury convicted

Appellant of three counts of Intimidation of a Witness/Victim. 1       Appellant

raises a challenge to the sufficiency of the evidence supporting his convictions.

After careful review, we affirm.

       The trial court summarized the factual background of this case as

follows:

       In June 2015, [A.H. (“the victim”)] reported to the Upper Darby
       Police Department that she had been sexually assaulted by
       Appellant.[FN2] [The victim] and Appellant had known each other
       for approximately fourteen years at the time of the alleged
       assault[s] and had a son together, but their relationship had
____________________________________________


1  18 Pa.C.S.A. §§ 4952(a)(3) (Intimidation of Witness/Victim: Withhold
Testimony); 4952(a)(5) (Intimidation of Witness/Victim: Elude/Evade/Ignore
Request to Appear); 4952(a)(6) (Intimidation of a Witness/Victim: Absence
from Legal Proceedings).
____________________________________
* Former Justice specially assigned to the Superior Court.
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     ended when their son was about one year old. After the alleged
     assault, [the victim] immediately sought a Protection from Abuse
     order against Appellant. The order indicated that Appellant was
     to have no contact with [the victim], either directly or indirectly.

           [FN2: For purposes of the instant case, the parties
           stipulated that Appellant had been charged with Rape,
           18 Pa.C.S.A. § 3121, but that trial was pending at the
           time of the instant trial. The jury was instructed that
           Appellant had been charged with three separate
           sexual assaults of the victim, but was directed not to
           consider the underlying case.]

     The Protection from Abuse order was served upon Appellant by
     Detective Leo Hanshaw of the Upper Darby Police Department in
     June of 2015. Detective Hanshaw testified that, under Protection
     from Abuse orders, the named party is to have no contact
     whatsoever with the victim. It is standard practice for the serving
     officer to review the order and explain to the named party at the
     time of service the terms of the order being presented. The
     purpose, as explained by Detective H[a]nshaw, is to ensure that
     the named party is aware he or she was served and so he or she
     understands what is expected under the order.

     On September 29, 2015, [the victim] appeared at the District
     Court in Secane, Pennsylvania, to testify in a preliminary hearing
     regarding the sexual assault charges. Subsequently, in January
     of 2016, [the victim] received mail from Appellant. The envelope’s
     return address was under the name “Yakiy Jones,” which [the
     victim] identified as an alias used by Appellant. The envelope
     contained a hand-written letter from Appellant and a certificate of
     completion of an anger-management course, awarded in
     Appellant’s name.

     When [the victim] received the letter and read it, she became
     afraid because of the previous assault[s]. She contacted the
     police to inform them of the letter; she then went to the police
     station. The Commonwealth also elicited testimony from [the
     victim] that she had become so frightened by the letter and the
     contact in breach of the Protection from Abuse order that she
     moved.

     The letter was admitted into evidence, published to the jury, and
     then read aloud by [the victim]. The letter contained, in part,

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      remarks that Appellant was a changed man, that by testifying
      against him, [the victim] would cause him to miss ten to twenty
      years with his children, and that she did not have to testify. The
      letter also offered excuses for Appellant’s actions, including stress
      and “hard times,” and suggested ways in which [the victim] could
      make the sexual assault case disappear. Specifically, Appellant
      begged her to drop the charges, then explained to her that no one
      can force her to talk if she did not want to, and that there would
      be nothing the courts could do if she refused to testify.

Trial Court Opinion (T.C.O.), 8/1/17, at 1-3 (internal citations omitted).

      After the conclusion of the trial, the jury convicted Appellant of all three

counts of Intimidation of a Witness/Victim.       The trial court subsequently

sentenced Appellant to an aggregate term of five to ten years’ imprisonment

to be followed by four years’ probation.     Appellant filed a timely notice of

appeal and complied with the trial court’s direction to file a concise statement

of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).

      Appellant raises one issue for our review on appeal:

      Did the Commonwealth fail to prove beyond a reasonable doubt
      that [Appellant] committed three Offenses of Witness Intimidation
      by acting with the intent or knowledge to intimidate any witness
      or victim?

Appellant’s Brief, at 5.

      Our standard of review for reviewing challenges to the sufficiency of the

evidence is as follows:

         A claim challenging the sufficiency of the evidence is a
         question of law. Evidence will be deemed sufficient to
         support the verdict when it establishes each material
         element of the crime charged and the commission thereof
         by the accused, beyond a reasonable doubt. Where the
         evidence offered to support the verdict is in contradiction to
         the physical facts, in contravention to human experience
         and the laws of nature, then the evidence is insufficient as

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        a matter of law. When reviewing a sufficiency claim[,] the
        court is required to view the evidence in the light most
        favorable to the verdict winner giving the prosecution the
        benefit of all reasonable inferences to be drawn from the
        evidence.

     Commonwealth v. Widmer, 560 Pa. 308, 744 A.2d 745, 751
     (2000) (internal citations omitted).

     Furthermore, the trier of fact, in this case the trial court, is free to
     believe, all, part, or none of the evidence presented when making
     credibility determinations. Commonwealth v. Beasley, 138
     A.3d 39, 45 (Pa.Super. 2016). In deciding a sufficiency of the
     evidence claim, this court may not reweigh the evidence and
     substitute our judgment for that of the fact-finder.
     Commonwealth v. Williams, 153 A.3d 372, 375 (Pa.Super.
     2016).

Commonwealth v. McClellan, 178 A.3d 874, 878 (Pa.Super. 2018).

     Appellant challenges the sufficiency of the evidence supporting his three

convictions for Intimidation of a Witness/Victim under Section 4952 of the

Crimes Code, which provides in relevant part:

     (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:
                                       ***
     (3) Withhold any testimony, information, document or thing
     relating to the commission of a crime from any law enforcement
     officer, prosecuting official or judge.
                                       ***
     (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.A. § 4952(a).



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      Appellant limits his sufficiency challenge to argue that he did not intend

to intimidate or attempt to intimidate the victim by sending her a letter asking

her to withhold testimony on the charges that he had previously sexually

assaulted her on three occasions. Appellant argues that he never made any

threats of harm towards the victim but merely asked her not to continue to

cooperate with the prosecution of the sex assault charges.

      In a similar case, Commonwealth v. Doughty, 633 Pa. 539, 126 A.3d

951 (2015), the appellant similarly argued that he could not be convicted

under Section 4952, alleging that the Commonwealth had not proven the

element of intimidation. Specifically, the appellant was previously charged

with simple assault and harassment for acting violently towards his wife.

Thereafter, the appellant contacted his wife from prison and insisted that his

wife refuse to testify and recant her allegations as a conviction would cause

him to “go to jail for two years, starve, and lose everything.” Id. at 541, 126

A.3d 952. The appellant also offered to pay his wife’s fines if she was charged

with making false statements.

      In upholding the appellant’s convictions, the Supreme Court emphasized

in Doughty that an individual may purposefully intimidate another person

without manifesting bullying or fearsome words as “intimidation may be

accomplished with no words at all, for a mere look or posture can bully,

threaten, coerce, frighten, or intimidate beyond question.” Doughty, 633 Pa.

at 549–50, 126 A.3d at 957. The Supreme Court refused to “interpret the

cold record of appellant's words as demonstrating mere pleading and begging,

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[as] our standard of review requires us to view the evidence in the light most

favorable to the Commonwealth.” Id. at 551, 126 A.3d at 958. Given the

appellant’s prior history of threatening his wife and the prior contact between

the parties, the Supreme Court found there was sufficient evidence to support

the jury’s inference that the appellant attempted to intimidate his spouse.

      Similarly, we are not persuaded by Appellant’s argument that he did not

intimidate the victim simply because he did not expressly threaten to harm

her if she testified against him. In Commonwealth v. Lynch, 72 A.3d 706

(Pa.Super. 2013) (en banc), this Court made the following observation about

intimidation in the context of an abusive relationship:

      there may be instances where a plea for compassion and
      forgiveness by a physically abusive companion, partner, or other
      relation may appear pitiful and even prove unsuccessful in the
      end, but was, given the dynamics of the relationship at hand,
      reasonably calculated by the actor to deliver the kind of veiled
      threat that has bent the witness to his will in the past.

Id. at 710. In Lynch, the appellant brutally beat the mother of his children

and then subsequently contacted her from prison and asked her not to testify.

We recognize that the Lynch court did not ultimately determine whether the

appellant’s plea for compassion towards his abused partner alone qualified as

intimidation as it concluded there was additional proof of intimidation through

his communication of a clear offer of a pecuniary benefit. Nevertheless, we

find the aforementioned rationale to be applicable in this case.

      In this case, Appellant was previously charged with multiple counts of

sexual assault of the victim, who is the mother of Appellant’s son. Despite


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the fact that Appellant was prohibited by a PFA order and the conditions of his

bail for the sexual assault charges from having any contact with the victim,

Appellant sent a letter to the victim, asking her not to testify against him.

Appellant stressed to the victim that he was facing ten to twenty years’

imprisonment if convicted, asked the victim if she wanted him to miss that

much time away from his children and his ailing mother, and suggested that

she was the cause of his possible incarceration.

      Appellant asserted that this term of imprisonment “won’t change

anything, but it would hurt my kids because I need to be there for them!”

Exhibit C-6, at 1. Appellant acknowledged that the victim was in a vulnerable

and fearful state, but assured her that she “should not have to fear” him. Id.

However, the victim testified that the letter made her so fearful that she

moved from her residence after receiving it.

      Given the prior contact between the parties which included the victim’s

filing of sexual assault charges and a PFA against Appellant, we find that there

was sufficient evidence for the jury to conclude that Appellant’s behavior was

reasonably calculated to intimidate the victim into refusing to testify against

Appellant. While Appellant suggests that this Court construe his letter as a

mere apology, we must review the evidence in the light most favorable to the

Commonwealth as the verdict winner. See Doughty, supra. Accordingly,

we conclude there was sufficient evidence to support the jury’s verdict

convicting Appellant of three counts of Intimidation of a Witness/Victim.

      Judgment of sentence affirmed.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/12/18




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