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IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT
SAYLOR, C.J., EAKIN, BAER, TODD, STEVENS, JJ.
COMMONWEALTH OF PENNSYLVANIA, : No. 120 MAP 2014
:
Appellee : Appeal from the Order of the Superior
: Court dated March 26, 2014 at No. 998
: MDA 2013 Affirming the Judgment of
v. : Sentence of the Cumberland County Court
: of Common Pleas, Criminal Division,
: entered May 7, 2013 at No.
JASON ANDREW DOUGHTY, : CP-21-CR-2182-2012.
:
Appellant : ARGUED: April 7, 2015
OPINION
MR. JUSTICE EAKIN DECIDED: November 18, 2015
Appellant appeals the decision of the Superior Court affirming his conviction under
18 Pa.C.S. § 4952 for intimidation of a witness, requesting we overrule or clarify
Commonwealth v. Brachbill, 555 A.2d 82 (Pa. 1989).
On June 30, 2012, while arguing with his wife, appellant struck her, knocked her to
the ground, and attempted to force her back into their home; she escaped and drove to
the police station. Police charged appellant with harassment and simple assault. While
in prison awaiting his preliminary hearing, appellant tried to call his wife multiple times;
she did not answer because the calls upset her. On July 14, 2012, appellant called his
father, who called appellant’s wife on a separate phone and relayed appellant’s
statements to her, establishing a three-way call on the two phones. Appellant insisted
his wife tell the magistrate she would not testify, that she made a mistake, and that she
caused her own injuries. If she failed to do so, appellant stated he would go to jail for two
years, starve, and lose everything. He also told her that she must comply for the sake of
their marriage, which he repeatedly described as “priceless.” Prison Recording,
Commonwealth’s Exhibit 4, at 13:39-14:45. Appellant stated that if his wife was charged
with making false statements, he would pay her fines. Two days later, she told police
she no longer wished to press charges. See N.T. Hearing, 3/19/13, at 170-71.
In light of the phone call, the Commonwealth charged appellant with intimidation of
a witness under 18 Pa.C.S. § 4952. A jury convicted appellant of simple assault and
intimidation of a witness, and the trial court convicted him of harassment. He was
sentenced to an aggregate term of 33 to 66 months imprisonment.
Appellant challenged the sufficiency of the evidence for the intimidation conviction.
In particular, he argued the Commonwealth failed to prove the element of intimidation, as
his wife testified she was not intimidated during the three-way conservation, see N.T.
Hearing, 3/19/13, at 138, and there was no evidence he attempted to intimidate her. The
trial court disagreed, concluding sufficient evidence existed to prove the attempt to
intimidate. The court noted appellant “berated his wife, directly and indirectly, to not
testify” and stated “there [was] simply no other way to parse [appellant’s] words or his
invective.” Trial Court Opinion, 7/30/13, at 4-5.
Before the Superior Court, appellant conceded he tendered a pecuniary benefit by
offering to pay potential fines, but he asserted such a fact related only to grading under 18
Pa.C.S. § 4952(b), and did not comprise intimidation under subsection (a). The court
rejected this sufficiency claim, interpreting it as a functional request to overrule Brachbill.
Commonwealth v. Doughty, No. 998 MDA 2013, unpublished memorandum at 6 (Pa.
Super. filed March 26, 2014) (“[O]ur Supreme Court has held that an individual violates [§]
4952(a) even where ‘the Commonwealth’s evidence only established inducements and
did not prove any threats or attempts of coercion.’” (emphasis in original) (quoting
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Brachbill, at 85)). Recognizing it was bound by Brachbill, the Superior Court affirmed the
intimidation conviction. Id., at 7. We granted allocatur to determine whether Brachbill
“should be partially overturned[] or clarified so that it isn’t in conflict with the plain
language reading of 18 Pa.C.S.[] § 4952 and in conflict with the well[-]recognized rule of
statutory construction that penal statutes must be strictly construed.” Commonwealth v.
Doughty, 101 A.3d 1150 (Pa. 2014) (per curiam) (alterations in original).
In relevant part, 18 Pa.C.S. § 4952 provides:
(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 M relating to the commission of a
crime from any law enforcement officer, prosecuting official or
judge.
* * *
(b) Grading.—
(1) The offense is a felony of the degree indicated in
paragraphs (2) through (4) if:
(i) The actor employs force, violence or
deception, or threatens to employ force or
violence, upon the witness or victim or, with the
requisite intent or knowledge upon any other
person.
(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.
(iii) The actor’s conduct is in furtherance of a
conspiracy to intimate a witness or victim.
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(iv) The actor accepts, agrees or solicits another
to accept any pecuniary or other benefit to
intimidate a witness or victim.
* * *
(4) The offense is a felony of the third degree in any other
case in which the actor sought to influence or intimidate a
witness or victim as specified in this subsection.
(5) Otherwise the offense is a misdemeanor of the second
degree.
18 Pa.C.S. § 4952(a)(3), (b)(1)(i)-(iv), (b)(4)-(5).
Appellant avers courts, pursuant to Brachbill, are convicting where only the mens
rea and a grading provision are present, without requiring proof of intimidation. See
Appellant’s Brief, at 11 (“‘The Pennsylvania Supreme Court clarified that any offer of
benefit M violates the statute even if unaccompanied by M intimidation[.]’” (omissions in
original) (quoting Commonwealth v. Lynch, 72 A.3d 706, 710 (Pa. Super. 2013) (en
banc))). Thus, appellant claims intimidation has been read out of subsection (a), which
leads to the “absurd” result that “‘[a]ny offer’ will do” to support a conviction. Id. (quoting
Lynch, at 710). Appellant argues, under Brachbill, courts are treating § 4952(b)(1)(ii) as
a “super element” which constitutes proof of intimidation under § 4952(a). Id., at 10. As
18 Pa.C.S. § 4952(a) requires intimidation or an attempt to intimidate, appellant posits
such an interpretation conflicts with the plain language of the statute and the rule of lenity,
which provides penal statutes are to be strictly construed. See 1 Pa.C.S. § 1928(b)(1).
Appellant submits that Brachbill, despite referencing the rule of lenity and that statutory
terms are to be given their ordinary meanings, ignored both notions, as evidenced by the
statement “‘it is nevertheless clear that the legislature intended to proscribe M any offers
of benefit with the’” applicable mens rea. Appellant’s Brief, at 9-10 (omission and
emphasis in original) (quoting Brachbill, at 86). He further notes the legislature meant to
give a narrow meaning to intimidation since 18 Pa.C.S. § 4952’s predecessor, id., § 4907
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(repealed),1 used the broader term “induce,” id. Accordingly, appellant posits Brachbill’s
holding that mere inducements may satisfy intimidation under subsection (a) “tortur[es]
the English language[.]” Appellant’s Brief, at 10.
The Commonwealth asserts it is unnecessary to overrule Brachbill because rather
than abolishing the need to prove intimidation, Brachbill simply “describes the intent for
and manner in which one can be intimidated[.]” Commonwealth’s Brief, at 10 (emphasis
omitted). The Commonwealth posits the pecuniary benefit provision does not replace
the need to prove intimidation but instead stands for the proposition § 4952(a) is not
limited to overtly threatening acts, and that Lynch reaffirmed this notion. Observing
appellant selectively quoted Lynch, the Commonwealth submits Lynch merely clarified
the type of intimidation “need not be of the bodily harm type.” Id., at 9. As to appellant’s
claim that “any offer will do[,]” Appellant’s Brief, at 11, the Commonwealth highlights
Lynch specifically rejected such an assertion, Commonwealth’s Brief, at 9 (“‘[A]n offer of
1 The repealed statute provided in relevant part:
(a) Offense defined.—A person commits an offense if, believing that an
official proceeding or investigation is pending or about to be instituted, he
attempts to induce or otherwise cause a witness or informant to:
(1) testify or inform falsely;
(2) withhold any testimony, information, document or thing
except on advice of counsel;
(3) elude legal process summoning him to testify or provide
evidence; or
(4) absent himself from any proceeding or investigation to
which he has been legally summoned.
Act of December 6, 1972, No. 334, § 4907, 1972 Pa. Laws 1557 (repealed) (emphasis
added).
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benefits may be so vague, incredible, or frivolous on its face that it necessarily fails to
constitute the criminal act proscribed[.]’” (quoting Lynch, at 710)).
The Commonwealth argues it proved intimidation here since the totality of the
circumstances, in particular appellant’s history of abusive conduct, reveal appellant’s wife
was “being intimidated with the loss of her existing livelihood.” Id., at 11 (emphasis
omitted). It suggests appellant’s pecuniary offer “served only as a vehicle for [appellant]
to remind [his wife] of the underlying violence that w[ould] be visited upon her if she d[id]
not comply with his demands.” Id. The Commonwealth further notes appellant
previously told his wife he would kill her and used a racial epithet when she attempted to
leave the house and call the police. The Commonwealth avers that, viewed through this
prism, appellant’s statements during the three-way conversation take on a threatening
character that constitutes “textbook intimidation.” Id., at 13.
Amicus curiae, the Pennsylvania District Attorneys Association, argues this Court
is barred from revisiting Brachbill since Brachbill was decided upon legislative-intent
grounds and thus Brachbill’s interpretation became part of the act. See Commonwealth
v. Shaffer, 734 A.2d 840, 844 (Pa. 1999) (“[O]ur interpretation [of a statute’s legislative
intent] bec[o]me[s] a part of the legislation from the date of enactment.”). Amicus
suggests further statutory construction is prohibited because an alleged error as to
legislative intent may “‘only be remedied prospectively’” by the legislature via
amendment. Amicus Brief, at 6 (quoting Shaffer, at 844). Amicus contends
reinterpreting a statute would raise separation-of-powers concerns. Id., at 14 (citing
Kendrick v. Dist. Attorney of Phila., 916 A.2d 529, 540 (Pa. 2007)). Moreover, as
Brachbill was decided 25 years ago without subsequent legislative modification, amicus
posits Brachbill’s interpretation is presumed correct and further statutory interpretation is
prohibited.
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While the doctrine of stare decisis is important, it does not demand unseeing
allegiance to things past. See Tincher v. Omega Flex, Inc., 104 A.3d 328, 352 (Pa.
2014) (citations omitted); O.W. Holmes, The Path of the Law, 10 Harv. L. Rev. 457, 469
(1897) (“It is revolting to have no better reason for a rule of law than that so it was laid
down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid
down have vanished long since, and the rule simply persists from blind imitation of the
past.”). In cases resolved upon statutory interpretation, stare decisis does implicate
greater sanctity because the legislature can prospectively amend the statute if it
disagrees with a court’s interpretation. See Shambach v. Bickhart, 845 A.2d 793, 807
(Pa. 2004) (Saylor, J., concurring) (“[S]tare decisis has ‘special force’ in matters of
statutory M construction[] because M the legislat[ure] is free to correct any errant
interpretation of its intentions[.]”).
Although this Court has been mindful of the distinct status afforded precedent
based upon statutory interpretation, see Kendrick, at 540; Shambach, at 807, we are
never per se barred from reconsidering such cases. Amicus cites Kendrick and Shaffer
to suggest only the legislature can clarify the result of a decision interpreting a decision,
but this argument would prevent an appellate court from ever reconsidering such
precedent. That is, taken to its logical conclusion, amicus’s argument would effectively
abolish stare decisis in favor of a bright-line rule prohibiting reconsideration of statutory
precedent. In contrast, stare decisis inherently accounts for the separation-of-powers
concern by erecting a high standard needed to overrule statutory precedent. See
Shambach, at 807. With this in mind, we move to Brachbill and its progeny.
In Brachbill, two prison guards abused an inmate, who told prison officials, also
indicating they attempted to deter him from reporting their misconduct. After the
inmate’s release, the guards again tried to dissuade him from speaking with authorities,
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requesting he call them every day and offering to pay for the phone calls. One of the
guards told the inmate not to speak with police, gave him money, and offered to take his
family to dinner. The guards were convicted of intimidation under 18 Pa.C.S. § 4952.
On appeal to this Court, they argued the evidence was insufficient because no evidence
was presented that they threatened the inmate, asserting the courts below erroneously
viewed the terms “intimidate” and “induce” as interchangeable. Since the prior version of
the intimidation statute used the term “induce[,]” 18 Pa.C.S. § 4907 (repealed), the guards
averred the legislature did not intend to use “induce” and “intimidate” interchangeably in §
4952.
This Court affirmed the convictions, concluding this argument “totally ignore[d]”
subsection (b). Brachbill, at 85. The Court opined “although [§] 4952(a) uses the word
‘intimidates’ and not the former[,] broader term ‘induce,’ it is nevertheless clear that the
legislature intended to proscribe M any offers of benefit with the intent to ‘obstruct,
impede, impair, prevent or interfere with the administration of criminal justice[.]’” Id., at
85-86. As to the rule of lenity, the Court noted “a rule of construction may never be
permitted to give a restrictive meaning to [terms] where the clear language of the text M
indicates otherwise.” Id., at 86. In the Court’s view, accepting the guards’ argument
would have required it to disregard the plain text of 18 Pa.C.S. § 4952(b)(2).2 Brachbill,
at 86.
In Lynch, the appellant brutally beat his girlfriend, the mother of his children.
While in prison, the appellant called and wrote the victim, asking her to drop the charges
or refuse to testify. Although the victim was not intimidated by the contact, the trial court
2 Section 4952(b) was amended in 2001, resulting in a renumbering of the grading
provisions, but not their text. Under the present statute, Brachbill’s reference to
paragraph (b)(2) actually refers to subparagraph (b)(1)(ii). Compare 18 Pa.C.S. §
4952(b)(1)(ii), with Act of December 4, 1980, No. 187, § 4952(b)(2), 1980 Pa. Laws 1098.
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“‘inferred from the surrounding circumstances[,]’” the appellant intended to intimidate her.
Lynch, at 709 (quoting Trial Court Opinion, 6/8/11, at 2-3). On appeal, the appellant
argued the evidence was insufficient because his communications were not threatening.
Writing for the Superior Court en banc, then-President Judge Stevens noted that, given
the nature of domestic abuse, a “plea for compassion” by an abusive partner may,
“without more, qualify as ‘intimidation.’” Id., at 710. Notwithstanding this suggestion,
the majority concluded such an examination was unnecessary since the appellant’s letter
“communicate[d] a clear offer of pecuniary and other benefit[.]” Id. In particular, the
court determined the appellant “offer[ed] M improved household stability and financial
support [in the form of a tax refund] for her and their children[.]” Id., at 711. In the
court’s view, the letter “specifically targeted a parent’s basic drive to meet childcare
needs.” Id. Remarking Brachbill “clarified that any offer of benefit with such intent
violates the statute even if unaccompanied by threats or overt intimidation[,]” the Lynch
majority held the appellant’s conduct fell within § 4952. Id., at 710-11.
In dissent, Judge Bender, joined by Judges Donohue and Wecht, stated the
evidence demonstrated only begging and pleading — “the antithesis of intimidation.” Id.,
at 712 (Bender, J., dissenting). The dissent underscored that neither the trial court nor
the Commonwealth cited the pecuniary benefit provision, id., at 712-13, and criticized the
majority for implying “any offer of benefit” would suffice, noting an offer must be pecuniary
in nature, given the statute’s text and the rule of lenity, id., at 714. Hence, despite the
fact that previous cases had “already stretched the text of the [witness intimidation]
statute to the outermost limits of reason[,]” the dissent opined “[t]he bar ha[d now] been
set so low M a prosecutor need only trip over it to satisfy the [m]ajority.” Id., at 715.
As noted supra, Brachbill was decided on statutory-interpretation grounds, and a
strong presumption weighs against overruling it. See Shambach, at 807. Yet, as
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mentioned by the dissent in Lynch, Brachbill placed its perception of legislative purpose
above the language of the criminal statute. In § 4952, the elements of the crime are
complete within subsection (a); subsection (b) deals with penalty, not elements of the
crime itself. However, while findings relevant to penalty do not replace elements of the
crime, the former may reflect that a broader interpretation of the latter is appropriate.
Thus, it is true the Court in Brachbill gave short shrift to the fact the legislature replaced
the broader term “induce” with the narrower term “intimidate,” and based its holding
primarily on purpose gleaned from grading provisions. It is also true the Court rejected
the argument that overt intimidation was necessary, as inducement enumerated in (b)
was recognized by the legislature as a potential component of intimidation under
subsection (a). See Brachbill, at 85-86.
Clearly, intimidation may be accomplished with no words at all, for a mere look or
posture can bully, threaten, coerce, frighten, or intimidate beyond question. See, e.g.,
Clint Eastwood. It is equally true that an offer of benefit can be presented in such a
Machiavellian manner as to contain an unarticulated act of intimidation. See, e.g., The
Godfather (Paramount Pictures 1972) (“I’m gonna make him an offer he can’t refuse.”).
Indeed, one need not go to the movies to understand that people may purposely
intimidate in any number of ways, without manifesting bullying or fearsome words, and if
they do so with the requisite mens rea, the crime is made out.
Given the interpretations in the Superior Court’s precedent, we find it appropriate
to clarify Brachbill’s parameters. To be clear, Brachbill did not vitiate the need to prove
intimidation. Rather, it disagreed with the appellants’ argument that the statute requires
“threats or attempts of coercion.” Brachbill, at 85. Where Brachbill 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 element of
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inducement with the element of intimidation. The legislature did not state that
inducements cannot suffice to constitute intimidation; it said the opposite.
Brachbill did not abolish the Commonwealth’s need to prove intimidation.
Whether 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. Insofar as Brachbill is read to
mean pecuniary inducement alone will suffice without proof of intimidation, it is
disapproved. While understandable, to the extent the Superior Court relied on Brachbill
to find intimidation is not needed to satisfy a conviction under 18 Pa.C.S. § 4952, see
Doughty, at 6-7, we hold the court erred.
Despite clarifying Brachbill, we see no need to remand to the Superior Court to
review the sufficiency of the evidence; as the jury was properly instructed and found
intimidation, additional fact finding is unnecessary. See Commonwealth v. Edmiston, 65
A.3d 339, 357 (Pa. 2013) (declining to remand where further fact finding was
unnecessary). 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 reasonable doubt. The Commonwealth
may sustain its burden by means of wholly circumstantial evidence.
Commonwealth v. Mattison, 82 A.3d 386, 392 (Pa. 2013) (internal citation omitted).
Here, the transcript reveals the jury was properly instructed that intimidation was a
necessary element of 18 Pa.C.S. § 4952, proof of which was required for conviction.
N.T. Hearing, 3/19/13, at 185. Moreover, alluding to the prison recording, the trial court
pointed out that appellant “berated his wife, directly and indirectly, to not testify[.]” Trial
Court Opinion, 7/30/13, at 4. Although, as noted by the dissent in Lynch, one may
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choose to interpret the cold record of appellant’s words as demonstrating mere pleading
and begging, our standard of review requires us to view the evidence in the light most
favorable to the Commonwealth. Mattison, at 392. Given appellant’s history of
threatening behavior toward his wife, see N.T. Hearing, 3/18/13, at 58 (“[H]e said if I ever
tried to leave him he’d kidnap me and chain me into a basement, or M kill [me].”), and
“invective” during the prison recording, Trial Court Opinion, 7/30/13, at 4, we agree there
was sufficient evidence for the jury to find appellant attempted to intimidate his spouse.
Accordingly, we affirm appellant’s conviction under 18 Pa.C.S. § 4952.
Order affirmed; jurisdiction relinquished.
Mr. Justice Baer, Madame Justice Todd and Mr. Justice Stevens join the opinion.
Mr. Chief Justice Saylor files a concurring opinion.
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