J-S73022-18
2019 PA Super 22
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT
OF
PENNSYLVANIA
Appellant
v.
JOHN CYRAN,
Appellee No. 578 WDA 2018
Appeal from the Order Entered April 6, 2018
In the Court of Common Pleas of Potter County
Criminal Division at No(s): CP-35-CR-0000160-2017
BEFORE: GANTMAN, P.J., BENDER, P.J.E., and OLSON, J.
OPINION BY BENDER, P.J.E.: FILED FEBRUARY 1, 2019
The Commonwealth appeals from the trial court’s April 6, 2018 order
dismissing 27 counts of possession of a firearm, 18 Pa.C.S. § 6105(a)(1),
charged against Appellee, John Cyran. After careful review, we affirm.
On July 14, 2017, Appellee was involved in an altercation, during which
he allegedly pointed a firearm at the victim and threatened him. A subsequent
search of Appellee’s home revealed 27 firearms, and the Commonwealth
charged him with 27 counts of possession of a firearm by a person prohibited.
That offense is defined as follows:
(a) Offense defined.--
(1) A person who has been convicted of an offense
enumerated in subsection (b), within or without this
Commonwealth, regardless of the length of sentence or
whose conduct meets the criteria in subsection (c) shall not
possess, use, control, sell, transfer or manufacture or obtain
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a license to possess, use, control, sell, transfer or
manufacture a firearm in this Commonwealth.
18 Pa.C.S. § 6105(a)(1) (emphasis added).
While Appellee has not been convicted in Pennsylvania of an offense
enumerated in section 6105(b), that provision also includes “[a]ny offense
equivalent to any of the above-enumerated offenses under the statutes of any
other state or of the United States.” 18 Pa.C.S. § 6105(b). Here, Appellee
was previously convicted in New York of tampering with a witness, a crime
which is defined as follows:
A person is guilty of tampering with a witness when, knowing that
a person is or is about to be called as a witness in an action or
proceeding, (a) he wrongfully induces or attempts to induce such
person to absent himself from, or otherwise to avoid or seek to
avoid appearing or testifying at, such action or proceeding, or (b)
he knowingly makes any false statement or practices any fraud or
deceit with intent to affect the testimony of such person.
N.Y.P.L. § 215.10. According to the Commonwealth, this offense is equivalent
to Pennsylvania’s crime of intimidation of a witness, which is an enumerated
offense under section 6105(b), and is defined as follows:
(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.
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(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.
(6) Absent himself from any proceeding or investigation to
which he has been legally summoned.
18 Pa.C.S. § 4952(a).
Based on its determination that N.Y.P.L. § 215.10 set forth an offense
that is equivalent to the offense defined by section 4952, the Commonwealth
charged Appellee with the 27 counts of possession of a firearm by a person
prohibited under section 6105(a)(1). Appellee, however, disagreed that the
crimes are equivalent and, thus, he filed an omnibus pretrial motion seeking
the dismissal of his charges under section 6105(a)(1). Following a hearing on
March 5, 2018, the trial court was persuaded by Appellee’s position; thus, it
issued an order and accompanying opinion on April 6, 2018, granting his
motion and dismissing the 27 counts of possession of a firearm by a person
prohibited.
The Commonwealth filed a timely notice of appeal, certifying that the
court’s order substantially handicaps or terminates its prosecution of
Appellee’s case. See Pa.R.A.P. 311(d). The trial court did not direct the
Commonwealth to file a Pa.R.A.P. 1925(b) statement, and it issued a Rule
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1925(a) statement indicating that it was relying on the rationale set forth in
its April 6, 2018 opinion to support its dismissal of the at-issue charges.
Herein, the Commonwealth presents one claim for our review:
1. Did the [t]rial [c]ourt commit an error or law or abuse its
discretion where it concluded that [N.Y.P.L. §] 215.10
(Tampering with a Witness) was not substantially similar to 18
Pa.C.S.[] § 4952 (Intimidation of a Witness), thus terminating
or substantially handicapping the Commonwealth’s case
against [Appellee] for possession of firearms in violation of 18
Pa.C.S.[] § 6105(a)(1)?
Commonwealth’s Brief at 2.
The issue before this Court is whether New York’s tampering with a
witness offense is equivalent to Pennsylvania’s intimidation of a witness crime,
such that Appellee’s New York conviction makes him a person prohibited from
possessing a firearm under section 6105(a)(1). In Commonwealth v.
Robertson, 722 A.2d 1047 (Pa. 1999), our Supreme Court defined an
‘equivalent offense’ as being one “which is substantially identical in nature and
definition as the out-of-state or federal offense when compared to the
Pennsylvania offense.” Id. at 1049 (emphasis and citation omitted). The
Robertson Court further elucidated that, in determining whether offenses are
substantially identical, a court should compare the requisite elements of the
crime, including the actus reus and the mens rea. Id. Additionally, not only
must the elements of the crimes be compared, but we must also compare “the
conduct to be prohibited and the underlying public policy of the two statutes.”
Id.
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In the present case, the Commonwealth first avers that the at-issue
offenses have equivalent elements. Specifically, the Commonwealth insists
that they share the same mens rea of “knowingly” engaging in the proscribed
conduct. Commonwealth’s Brief at 7. Regarding the actus reus element of
each crime, the Commonwealth argues as follows:
Section 6105 creates liability if a defendant “intimidates or
attempts to intimidate any witness or victim to: . . . Withhold any
testimony . . . [or] absent himself from any proceeding or
investigation to which he has been legally summoned.” 18 Pa.C.S.
[§] 4952. Similarly, [N.Y.P.L. §] 215.10 creates liability when a
defendant “wrongfully induces or attempts to induce [a witness]
to absent himself from . . . [a] proceeding.” N.Y.P.L. § 215.10.
While [s]ection 4952 refers to “intimidation” and [N.Y.P.L. §]
215.10 refers to “inducement,” the requisite action is the same,
namely[,] coercing a witness who has been called to testify into
changing their testimony or not appearing.
Id. at 7-8.
The Commonwealth’s argument is unconvincing. While “[b]oth statutes
seek to protect witnesses who are to be called to testify before a tribunal from
coercion and require action be taken by the offender in order for a violation to
occur[,]” we agree with the trial court that the crimes differ in what type of
action by the offender is required. Trial Court Opinion, 4/6/18, at 4.
Specifically, in Commonwealth v. Doughty, 126 A.3d 951 (Pa. 2015), our
Supreme Court clarified that, in order to prove intimidation of a witness under
section 4952, the Commonwealth must demonstrate intimidation, not merely
inducement. Id. at 957. The Doughty Court stressed that an inducement —
such as “an offer of a pecuniary or other benefit” — may contain “sufficient
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indicia of intimidation” to constitute an offense under section 4952. Id.
However, an offer of inducement alone, without proof of intimidation, will not
suffice to establish the offense of intimidation of a witness. Id.
In contrast, the actus reus of New York’s tampering-with-a-witness
crime under N.Y.P.L. § 215.10 seemingly can be satisfied by mere inducement
alone, as there are differing degrees of the offense of tampering with a
witness, several of which have an actus reus that is more akin to intimidation
than inducement. See N.Y.P.L. §§ 215.11, 215.12, 215.13. Additionally, New
York has offenses of varying degrees that specifically refer to ‘intimidating a
victim or witness.’ See N.Y.P.L. §§ 215.15, 215.16, 215.17. In fact, Appellee
was charged with (and ultimately acquitted of) intimidating a victim or witness
under N.Y.P.L. § 215.15; however, he was only convicted of tampering with a
witness under N.Y.P.L. § 215.10.
In sum, because N.Y.P.L. § 215.10 refers only to the inducement of a
witness, while section 4952 requires intimidation, the offenses do not share a
substantially similar actus reus. Therefore, they are not equivalent crimes for
purposes of section 6105(b), and the trial court did not err in dismissing
Appellee’s 27 counts under section 6105(a)(1).
Order affirmed.
President Judge Gantman joins this opinion.
Judge Olson concurs in the result.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/1/2019
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