J-A08027-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

GURPREET GAKHAL

                            Appellant                  No. 1070 EDA 2015


             Appeal from the Judgment of Sentence April 13, 2015
               In the Court of Common Pleas of Delaware County
              Criminal Division at No(s): CP-23-CR-0003105-2014


BEFORE: BOWES, OLSON and STRASSBURGER,* JJ.

MEMORANDUM BY OLSON, J.:                                 FILED JULY 08, 2016

        Appellant, Gurpreet Gakhal, appeals from the judgment of sentence

entered on April 13, 2015. We affirm.

        The factual and procedural history in this case is as follows.       On

September 12, 2012, Naeem Zarin (Zarin) reported to the Upper Darby

Township Police Department that Appellant pointed a gun at him and

threatened to shoot him.         As a result of this incident, the Commonwealth

charged Appellant with simple assault, terroristic threats, harassment, and

possession of an instrument of crime.1         Eventually, Appellant entered the

Accelerated Rehabilitative Disposition (ARD) program and was placed on

probation to resolve these charges prior to trial.

____________________________________________


1
    See 18 Pa.C.S.A. §§ 2701(a), 2706(a), 2709(a) and 907(b), respectively.



*Retired Senior Judge assigned to the Superior Court.
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       On February 9, 2014, Zarin saw Appellant at a local gas station and

convenience store. During the encounter, Appellant threatened to kill Zarin

and followed him out of the store.                Appellant also advised Zarin that

Appellant’s friends were watching from across the street and waiting for him.

Zarin got into his car, drove away, and again summoned the police. Base on

this incident, the Commonwealth charged Appellant with terroristic threats,

simple assault, harassment, and retaliation against a victim-witness.2

       At the conclusion of trial on January 15, 2015, a jury found Appellant

guilty of retaliation against a victim-witness and acquitted him of the

remaining charges.3 On April 13, 2015, the trial court sentenced Appellant

to 11½ to 23 months’ incarceration, followed by three years’ probation. This

appeal followed.4

       Appellant raises the following questions for our review:


____________________________________________


2
   18 Pa.C.S.A.        §§ 2706(a)(1),          2701(a)(3),   2709(a),   and   4953(a),
respectively.
3
    Because Appellant was on ARD probation when the February 9, 2014
episode occurred, he was removed from the ARD program and proceeded to
trial on all of the above-referenced offenses, including the charges stemming
from the September 12, 2012 incident.
4
  Appellant filed his notice of appeal to this Court on April 16, 2015. On April
20, 2015, the trial court ordered Appellant to file a concise statement of
errors complained of on appeal (“concise statement”).             See Pa.R.A.P.
1925(b). On May 6, 2015, Appellant filed a timely concise statement. On
June 30, 2015, the trial court issued its Rule 1925(a) opinion. Appellant
included all issues raised on appeal in his concise statement.



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      Whether the trial court erred in failing to give the full charge of
      [r]etaliation [a]gainst a [v]ictim-[w]itness when answering a
      question by the [j]ury but decided to alter and amend said
      charge?

      Did the trial court usurp the [j]ury’s fact finding role by telling
      them that they had already decided facts that would make
      reading/answering their questions and defining the instruction
      already given as moot causing confusion resulting in an
      inconsistent verdict?

      Was there sufficient evidence to sustain a [guilty verdict] on the
      charge of [r]etaliation [a]gainst a [v]ictim-[w]itness?

Appellant’s Brief at 4.

      Appellant’s first two claims allege that the trial court erred or abused

its discretion in responding to the jury’s question addressed to the grading of

the offense of retaliation. Hence, we begin our discussion by detailing the

context within which these claims arose, including the court’s instructions to

the jury, the court’s interactions with the fact finder, and the court’s

resolution of the jury’s inquiry.

      The Crimes Code grades retaliation against a victim-witness as a

second-degree misdemeanor.          See 18 Pa.C.S.A. § 4953(b).   The offense

may be graded as a felony of the third-degree, however, if the jury finds

that the defendant “employ[ed] force, violence or deception or threaten[ed]

to employ force or violence, upon the witness or victim or, with the requisite

intent or knowledge upon any other person.” 18 Pa.C.S.A. § 4952(b)(1)(i)

and (b)(4);     see also 18 Pa.C.S.A. § 4953(b) (“[Retaliation against a

victim-witness] is a felony of the third degree if the retaliation is


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accomplished by any of the means specified in section 4952(b)(1) through

(5)[,] relating to intimidation of witnesses or victims[].      Otherwise the

offense is a misdemeanor of the second degree.”).

      At the close of trial, the court issued the standard instruction for

retaliation against a victim-witness. Relevant to the grading of that offense,

the court’s verbal instruction to the jury stated:

      If you find [Appellant] guilty, you must then go on to consider
      whether the Commonwealth has proven one or more of the
      following facts beyond a reasonable doubt . . . that [Appellant’s]
      retaliation was accomplished by employing force, violence, or
      deception or by threatening to employ force or violence upon
      [Zarin].

N.T., 1/15/15, at 217-218; see also Pennsylvania Suggested Standard Jury

Instructions (Criminal), § 15.4953 (2015). Defense counsel did not object to

the court’s jury instruction.

      In addition to its verbal instructions, the court prepared a written

verdict form to confirm the jury’s findings as to the grading of the retaliation

offense. The verdict form stated, “Did [Appellant] employ force, violence or

deception or threaten to employ violence upon the witness or victim or,

with the requisite intent or knowledge upon any other person?” Trial

Court Opinion, 6/30/15, at 7 (emphasis added). The bolded language was

not included in the instructions read by the trial judge in open court. During

deliberations, the jury submitted a written inquiry to the trial judge asking

for clarification of the phrase “requisite intent or knowledge.” N.T., 1/15/15,

at 241. Concluding that the bolded language (including the phrase “requisite

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knowledge or intent”) lacked relevance to the facts of this case, the trial

court removed the terms from the verdict slip to conform the special

interrogatory to the oral jury charge.     Id. at 237-248.   Defense counsel

objected to the revision of the verdict form. Id. Ultimately, the jury found

Appellant guilty of retaliation and answered the special interrogatory on the

verdict form in the affirmative.

      In his first claim, Appellant asserts that the trial court erred in

removing the bolded language from the verdict form rather than responding

to the jury’s question.   In Appellant’s view, it is preferable to reread an

instruction in its entirety to avoid the omission of basic or fundamental

information. See Appellant’s Brief at 8. This claim merits no relief.

      [I]n reviewing a challenge to the trial court's refusal to give a
      specific jury instruction, it is the function of this [C]ourt to
      determine whether the record supports the trial court's
      decision.” Lockhart v. List, 665 A.2d 1176, 1179 (Pa. 1995).
      In examining the propriety of the instructions a trial court
      presents to a jury, our scope of review is to determine whether
      the trial court committed a clear abuse of discretion or an error
      of law which controlled the outcome of the case. Boutte v.
      Seitchik, 719 A.2d 319, 324–325 (Pa. Super. 1998). A jury
      charge will be deemed erroneous only if the charge as a whole is
      inadequate, not clear or has a tendency to mislead or confuse,
      rather than clarify, a material issue. Potochnick v. Perry, 861
      A.2d 277, 283 (Pa. Super. 2004). A charge is considered
      adequate unless the jury was palpably misled by what the trial
      judge said or there is an omission which is tantamount to
      fundamental error.      Consequently, the trial court has wide
      discretion in fashioning jury instructions. Atwell v. Beckwith
      Machinery Co., 872 A.2d 1216, 1222 (Pa. Super. 2005);
      Angelo v. Diamontoni, 871 A.2d 1276, 1279 (Pa. Super.
      2005). The trial court is not required to give every charge that
      is requested by the parties and its refusal to give a requested
      charge does not require reversal unless the [a]ppellant was

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      prejudiced by that refusal. Commonwealth v. Newman, 555
      A.2d 151, 158–159 (Pa. super. 1989).

Commonwealth v. Thomas, 904 A.2d 964, 970 (Pa. Super. 2006) (parallel

citations omitted). To avoid jury confusion, “a trial court should not instruct

a jury on legal principles which bear no relationship to the evidence

presented at trial.” Commonwealth v. Arrington, 86 A.3d 831, 850 (Pa.

2014).

      In this case, the trial court deleted the phrase “or, with the requisite

intent or knowledge upon any other person” from the verdict form because it

concluded that this language lacked relevance to the evidence adduced at

trial and posed a risk of confusing the jury. We concur in this assessment.

As the trial court noted, Zarin met the definitions of both “victim” and

“witness” for purposes of the retaliation statute because he reported

offenses committed against him by Appellant and because he possessed

information relating to those crimes. See Trial Court Opinion, 6/30/15, at

10, citing 18 Pa.C.S.A. § 4951 (defining the terms “victim” and “witness” for

purposes of retaliation statute). No one in this case suggests that Appellant

targeted any other individual with the threat of violent retaliation.    As the

trial court reasoned, since Zarin met the definition of “victim” or “witness” or

both, he could not have been “any other person” under any sensible reading

of the retaliation statute. Trial Court Opinion, 6/30/15, at 10-11. Because

the language deleted from the verdict form had no relationship to the

evidence presented at trial, and would serve only to confuse or mislead the

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jury, we perceive no error or abuse of discretion in the trial court’s alteration

of the verdict form.

      Appellant’s second claim alleges that the trial court usurped the jury’s

role as fact finder by deleting the language that referred to "any other

person.” Appellant claims that the trial court’s explanation to the jury that

this language was irrelevant impliedly conveyed the court’s belief that Zarin

was a witness or a victim. This claim too merits no relief.

      The court’s removal of irrelevant language from the verdict form did

not usurp the jury’s role as fact finder.      Read as a whole, and despite

removal of the irrelevant verbiage, the verdict form directed the jury to find

Appellant guilty of retaliation only if it determined that he committed any

act or engaged in a course of conduct that threatened another for anything

done in the capacity of a victim or a witness. See id. at 7, citing Verdict Slip

at Count 1 for case number CP-23-CR-3105-2014.                Furthermore, for

purposes of applying the grading enhancement, the verdict form asked the

jury to decide whether Appellant employed force, violence or deception, or

threats to employ violence, against a victim or a witness to accomplish his

retaliatory purpose. Thus, in order to find Appellant guilty of retaliation and

in order to find circumstances that supported the grading enhancement, the

jury still needed to decide whether Zarin met the criteria of a “victim” or a

“witness” based upon the facts introduced at trial.     Accordingly, the jury’s




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core deliberative function survived the trial court’s simple alteration of the

verdict form. No relief is due on Appellant’s second claim.

        Appellant’s final claim asserts that the evidence was insufficient to

support his conviction for retaliation. To support this contention, Appellant

points out that the jury found him not guilty on all other charges in this

case.    Appellant next asserts that the trial court’s alteration of the verdict

slip confused the jury as to the elements of retaliation, which thereby lead to

his conviction on this offense.

        We apply the following standard in reviewing the sufficiency of the

evidence.

        In reviewing the sufficiency of the evidence, we consider
        whether the evidence presented at trial, and all reasonable
        inferences drawn therefrom, viewed in a light most favorable to
        the Commonwealth as the verdict winner, support the jury's
        verdict beyond a reasonable doubt. The Commonwealth can
        meet its burden by wholly circumstantial evidence and any doubt
        about the defendant's guilt is to be resolved by the fact finder
        unless the evidence is so weak and inconclusive that, as a
        matter of law, no probability of fact can be drawn from the
        combined circumstances. As an appellate court, we must review
        the entire record and all evidence actually received. The trier of
        fact while passing upon the credibility of witnesses and the
        weight of the evidence produced is free to believe all, part or
        none of the evidence. Because evidentiary sufficiency is a
        question of law, our standard of review is de novo and our scope
        of review is plenary.

Commonwealth v. Benito, 133 A.3d 333, 335 (Pa. Super. 2016).

        To sustain a conviction for retaliation, the Commonwealth needed to

prove that Appellant “harm[ed] another by any unlawful act or engage[d] in

a course of conduct or repeatedly commit[ed] acts which threaten[ed]

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another in retaliation for anything lawfully done in the capacity of [a]

witness, victim or a party in a civil matter.”       18 Pa.C.S.A. § 4953(a).

Moreover, since the jury found that Appellant committed retaliation as a

felony of the third-degree, the Commonwealth also needed to prove that

Appellant “employ[ed] force, violence or deception or threaten[ed] to

employ force or violence, upon the witness or victim[.]”         18 Pa.C.S.A.

§ 4952(b)(1)(i) and (b)(4);     see also 18 Pa.C.S.A. § 4953(b) (describing

grading for offense of retaliation).

      After careful review of the parties’ submissions, the certified record,

the trial court’s opinion, and the applicable case law, we agree with the trial

court that Appellant’s sufficiency challenge merits no relief.     In its Rule

1925(a) opinion, the court determined that the evidence was sufficient to

prove each element of retaliation beyond a reasonable doubt.         See Trial

Court Opinion, 6/30/15, at 16-18.       To this conclusion, we add only that

Appellant’s threat to shoot Zarin, as established by the victim’s testimony,

was sufficient to prove that Appellant committed retaliation as a felony of

the third-degree.    We also concur in the trial court’s determination that

Appellant’s acquittals on other charges are not grounds for relief. See id. at

13-14.   As amended by our addition above, we adopt the trial court’s

reasoning in the cited text for rejecting Appellant’s third claim on appeal.

Because we have adopted the trial court’s opinion in part, we direct the




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parties to include a copy of the court’s decision with all future filings relating

to our disposition of this appeal.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/8/2016




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