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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.
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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
