Com. v. Barrow, D.

J-S66015-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF PENNSYLVANIA
Appellee

v.

DAVID BARROW

Appellant No. 3382 EDA 2018

Appeal from the Judgment of Sentence entered August 17, 2017
In the Court of Common Pleas of Philadelphia County
Criminal Division at No: CP-51-CR-0009416-2016

BEFORE: STABILE, NICHOLS, JJ., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY STABILE, J.: FILED FEBRUARY 28, 2020

Appellant, David Barrow, appeals from the judgment of sentence

imposed on August 17, 2017 in the Court of Common Pleas of Philadelphia

County following Appellant’s convictions of intimidation of a witness/victim,

retaliation against a witness or victim, and simple assault stemming from

events that occurred on August 15, 2016.1 Appellant contends the evidence

was insufficient to support his convictions. Alternatively, he argues the

verdicts were against the weight of evidence. Upon review, we affirm.

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1 18 Pa.C.S.A. §§ 4952(a)(1), 4953(a), and 2701(a), respectively. The jury
acquitted Appellant of aggravated assault, firearms not to be carried without
a license, carrying firearms in public in Philadelphia, and possession of an
instrument of crime, all arising from events that occurred the previous day.
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The trial court summarized the factual background with citations to the

trial transcript. Trial Court Opinion, 2/25/19, at 2-4. Briefly, as of August 14,

2016, the Complainant in this case, Hafiz Bailey (“Bailey”), was residing with

his cousin, Keith Henson (“Henson”), at a house on 20th Street in Philadelphia.

On that day, Henson called Bailey to say that Bailey’s .380 Jenkins

semiautomatic gun had been stolen. While they were still on the phone, Bailey

saw Appellant running from Henson’s home and could see a bulge under

Appellant’s shirt.

Bailey ran after Appellant to Appellant’s home where Bailey tapped

Appellant’s pocket and asked Appellant if he had the gun. Appellant pulled

out Bailey’s gun, told him to “[g]et the fuck back,” and fired a shot at Bailey’s

torso. The shot missed Bailey who took off running across the street to a gas

station where he called the police.

During the 911 call, Henson arrived at the gas station. Bailey and

Henson began to argue about Appellant, who was a friend of Henson’s. When

Bailey asked Henson where Appellant’s gun was, Henson placed a .25 caliber

handgun in Bailey’s pocket and told Bailey the gun was Appellant’s.

When the police arrived, Bailey was placed in a police car and was taken

to identify the person who stole his gun and shot at him. When Bailey

informed the police officer that he had a gun in his pocket, the officer removed

the gun and placed Bailey under arrest. While under arrest, Bailey identified

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Appellant as the shooter and both were taken separately to the 35th District

station.

As the trial court explained:

Upon arrival at the 35th District, sometime in the early morning of
August 15, 2016, [Bailey] and [Appellant] were placed in two
separate cells. While in their separate cells, [Appellant] began
belligerently yelling out to [Bailey], telling him that the detective
was coming to get [Bailey] soon, asked [Bailey] not to say
anything about the stolen gun, and told [Bailey] that they needed
to be on the same page. [Appellant] proceeded to ask [Bailey]
why he was snitching on [Appellant], to which [Bailey] responded
“just leave it alone.”

On August 15, 2016 around 8:15 PM, Police Officer Henry Lewis
was assigned five defendants, including [Bailey] and [Appellant],
to escort them to the closed circuit television (“CCTV”) room to
communicate remotely with the arraignment judge. Once each
person was arraigned, they received their subpoena and
proceeded to the back of the room for an opportunity to make a
phone call using one of the pay phones. [Appellant] had been
arraigned prior to [Bailey] and was already speaking on one of the
pay phones when [Bailey] was sent to the back of the room to use
the pay phone.

As [Bailey] was headed toward the pay phones, he saw
[Appellant] who proceeded to ask him what he had said to the
detectives. [Bailey] responded that he had told them the truth.
During this time, Officer Lewis heard unintelligible words coming
from the pay phones, banging against a trash can, and a phone
falling. As soon as Officer Lewis heard the commotion, he ran to
the pay phone area to find out what was happening. Upon arriving
at the pay phone area, Officer Lewis saw [Appellant] flip [Bailey]
onto his back, head first, onto the concrete floor and a trash can.
Then, [Appellant] fell on top of [Bailey] and began to choke him
by placing his arm around [Bailey’s] neck and choking him until
police officers arrived and separated them. [Bailey’s] head injury
required 5 staples, which he received at Einstein Medical Hospital.

Id. at 3-4 (references to Notes of Testimony omitted).

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As noted above, a jury convicted Appellant of intimidation, retaliation,

and simple assault. On August 17, 2017, the trial court imposed a sentence

of eight to twenty years in prison for intimidation with consecutive

probationary periods of four and two years each for retaliation and simple

assault, respectively. Appellant’s motion for reconsideration was denied on

September 14, 2017. Appellant’s appeal rights were reinstated nunc pro tunc

and he filed a notice of appeal on November 25, 2018. Both Appellant and

the trial court complied with Pa.R.A.P. 1925.

Appellant asks us to consider three issues in this appeal:

[1.] Is the evidence sufficient to convict [Appellant] of witness
intimidation and retaliation against a witness?

[2.] Is the evidence sufficient to convict [Appellant] of retaliation
against a witness where that offense only applies when the person
intimidated is a “witness, victim or a party in a civil matter” and
there was never a civil matter contemplated, initiated or pending
with respect to complainant in the case sub judice?

[3.] Is the verdict of guilty with respect to the charges of witness
intimidation and retaliation against a witness against the weight
of the evidence and so contrary to the evidence that it shocks
one’s sense of justice under the circumstances of this case?

Appellant’s Brief at 7.2

Appellant’s first two issues question the sufficiency of evidence to

support his convictions generally and, more specifically, with regard to the

meaning of the phrase, “witness, victim or a party in a civil matter” in 42

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2We note that Appellant does not challenge in any respect his simple assault
conviction.

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Pa.C.S.A. § 4953(a). In Commonwealth v. Rushing, 99 A.3d 416 (Pa.

2014), the Court was similarly faced with a general sufficiency challenge as

well as a question of interpretation of a statutory phrase. Addressing the

applicable standard of review, the Court stated:

In one respect, this appeal raises the pure legal question
regarding the proper interpretation of the statutory phrase “place
of isolation.” As the proper interpretation of a statute is a pure
question of law, our standard of review is de novo and our scope
of review is plenary. Commonwealth v. Daniels, 600 Pa. 1, 963
A.2d 409, 417 (2009). Yet, the appeal also presents the question
of whether there was sufficient evidence to support a conviction
for kidnapping, as that crime is properly interpreted. Thus, with
respect to our sufficiency review, our standard of review is de
novo, however, our scope of review is limited to considering the
evidence of record, and all reasonable inferences arising
therefrom, viewed in the light most favorable to the
Commonwealth as the verdict winner. Commonwealth v.
Diamond, 623 Pa. 475, 83 A.3d 119, 126 (2013);
Commonwealth v. Robinson, 581 Pa. 154, 864 A.2d 460, 478
(2004).

Id. at 420-21. We shall apply the same standards to the sufficiency challenge

to Appellant’s intimidation and retaliation convictions and to the interpretation

of the statutory phrase “witness, victim or a party in a civil matter.”

A person commits an offense of intimidation

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.

18 Pa.C.S.A § 4952(a)(1). A person commits an offense of retaliation

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if he harms another by any unlawful act or engages in a course of
conduct or repeatedly commits acts which threaten another in
retaliation for anything lawfully done in the capacity of witness,
victim or a party in a civil matter.

18 Pa.C.S.A. § 4953(a).

Appellant contends the evidence was insufficient to support either

conviction because he was acquitted on the underlying charge of aggravated

assault with respect to the alleged attempt to shoot Bailey. Because the jury

found him not guilty, he argues, there was no criminal conduct and the

convictions of intimidation and retaliation cannot stand. We cannot agree. As

the trial court observed:

Evidence is sufficient to convict a defendant of witness
intimidation under Pa.C.S.A. 4952(a)(1) if the evidence
demonstrates that the defendant had the necessary mens rea to
“attempt” to intimidate a witness or victim. Commonwealth v.
Collington, 615 A.2d 769, 770 (Pa. Super. [] 1992). Whether a
statement or conversation “contains sufficient indicia of
intimidation is to be determine[d] by the fact finder and assessed
under the totality of the circumstances, cognizant that proof of
manifest threats is not required.” Commonwealth v. Doughty,
126 A.3d 951, 957 (Pa. 2015).

...

Here, [Appellant’s] belligerent shouting at [Bailey] that the
detective was coming for [Bailey] and that they needed to get on
the same page along with [Appellant’s] taunt of “Why are you
snitching?” showed [Appellant’s] intent to antagonize and
intimidate [Bailey]. After arraignment, [Appellant] physically
attacked [Bailey] upon learning that he had told the detective that
[Appellant] had stolen his gun. [Appellant’s] conversation with
[Bailey] and subsequent attack of [Bailey] were sufficient to
permit an inference that [Appellant’s] actions were for the purpose
of intimidating [Bailey] whose testimony was crucial to establish
the charges of aggravated assault and [weapons violations] and
that [Appellant] physically assaulted [Bailey] in retaliation for

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[Bailey] telling the detective about the stolen gun. These facts
are more than sufficient evidence to sustain both the witness
intimidation and retaliation against a witness convictions.

Trial Court Opinion, 2/25/19, at 9-11.

Reviewing the evidence, including all reasonable inferences, in a light

most favorable to the Commonwealth as verdict winner, we agree with the

trial court that the Commonwealth established the elements of intimidation

and retaliation beyond a reasonable doubt. Therefore, Appellant’s first issue

fails.

In his second issue, while Appellant phrases his challenge as a challenge

to the sufficiency of evidence to support his retaliation conviction, he is

actually questioning the interpretation of the phrase in the retaliation statute

that indicates the offense applies to an intimidated person in that person’s

“capacity of witness, victim or party in a civil matter.” 42 Pa.C.S.A. § 4953(a).

In his two-part challenge, Appellant first asserts that Bailey was neither

a witness nor a victim because Appellant was acquitted of aggravated assault

charges stemming from the events of August 14, 2016, i.e., Bailey’s claim

that Appellant fired a shot at his torso. However, as the Commonwealth

counters, “It is well settled that an acquittal of one charge is not a specific

finding of fact with respect to any other charge.” Commonwealth Brief at 8

(citing, inter alia, Commonwealth v. Talbert, 129 A.3d 536, 545 (Pa. Super.

2015) and Commonwealth v. Miller, 35 A.3d 1206 (Pa. 2012)). Further,

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consistency in a verdict is not required. Miller, 35 A.3d at 1213. See also

Commonwealth v. Rose, 960 A.2d 149, 158 (Pa. Super. 2008).

As the trial court noted:

[I]t is the jury’s sole prerogative to decide on which counts to
convict in order to provide a defendant with sufficient punishment.
When an acquittal on one count in an indictment is inconsistent
with a conviction on a second count, the court looks upon the
acquittal as no more than the jury’s assumption of a power which
they had no right to exercise, but to which they were disposed
through lenity. Thus, this Court will not disturb guilty verdicts on
the basis of apparent inconsistencies as long as there is sufficient
evidence to support the verdict.

Trial Court Opinion, 2/25/19, at 6 (quoting Rose, 960 A.2d at 158) (citation

omitted). Moreover,

a defendant need not be convicted of the underlying crime or
crimes to be found guilty of witness intimidation or retaliation
against a witness as evidenced by the language found in the
grading section of the statute where it explicitly states that
witness intimidation or retaliation against a witness is to be graded
based on the most serious offense charged in the case, not based
on the most serious charge continuing to exist at the time of
sentencing, i.e., the most serious charge [of which] the defendant
was ultimately convicted.

Id. at 6 (emphasis in original) (citing 42 Pa.C.S.A. §§ 9452(b) and 9543(b).

The trial court cited Commonwealth v. Felder, 75 A.3d 513 (Pa.

Super. 2013), in which the appellant was charged with aggravated assault and

intimidation as well as conspiracy and simple assault and related charges.

Trial Court Opinion, 2/25/19, at 6. In Felder, the jury convicted Felder of

intimidation, but was deadlocked on aggravated assault. The court imposed

a sentence for intimidation as a felony of the first degree under Section

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4952(b)(2). Felder argued the court should not have imposed a sentence for

a first-degree felony in light of the jury’s inability to reach a verdict on

aggravated assault and the Commonwealth’s decision to nolle pros the charge

prior to sentencing.

This Court rejected Felder’s argument, explaining:

Subsection 4952(b) provides a clear roadmap for the grading of
witness/victim intimidation offenses. If "a felony of the first-
degree . . . was charged in the case," then the offense of
witness/victim intimidation is graded as a first-degree felony.
18 Pa. C.S.A. § 4952(b)(2). If the most serious offense charged
in the case was a second degree felony, then the witness/victim
intimidation offense is graded as a second-degree felony. 18 Pa.
C.S.A. § 4952(b)(3). If no first-degree or second-degree felony
was charged in the case, but the criminal defendant nevertheless
sought to influence or intimidate a witness or victim in any manner
described in subsection 4952(b)(1), then the witness/victim
intimidation offense is graded as a third degree felony. 18 Pa.
C.S.A. § 4952(b)(4). In all other cases, the offense of
witness/victim intimidation is graded as a second-degree
misdemeanor. 18 Pa. C.S.A. § 4952(b)(5).

A first-degree felony was charged in this case, and thus the
trial court properly graded Felder’s conviction for witness/victim
intimidation as a first-degree felony pursuant to subsection
4952(b)(2). Felder’s alternative interpretation of this subsection
would require us to insert additional language into the statute,
namely that the first-degree felony charge "continued to exist in
the case at the time of sentencing." Nothing in section
4952(b)(2) suggests that the legislature intended such a result.
To the contrary, the statute’s focus on the most serious crime
charged makes eminent sense, since the relevant charge is the
most serious one a criminal defendant attempted to escape by
use of intimidation.

Felder, 75 A.3d at 516-17 (emphasis in original).

Applying this Court’s reasoning from Felder, we conclude the evidence

was sufficient to support Appellant’s convictions of intimidation and retaliation

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as a first-degree felony despite his acquittal of aggravated assault charges

stemming from the events of August 14, 2016. This aspect of Appellant’s

sufficiency challenge fails.

In the second part of Appellant’s sufficiency challenge, he contends the

statute does not apply in this case because Bailey was not a witness, victim

or a party in a civil matter. Appellant’s Brief at 28-29. As in Rushing, supra,

because the proper interpretation of a statute is a question of law, our

standard of review is de novo and our scope of review is plenary.

Our Court considered the meaning of a person’s “capacity of witness,

victim or party in a civil matter” in Commonwealth v. Nevels, 203 A.3d 229

(Pa. Super. 2019). There, the Court stated:

We first address Appellant’s argument that Section 4953 is
inapplicable because the record fails to reflect that Mr. and Mrs.
Jones testified in a civil matter. In review of Section 4953 and its
application by Pennsylvania appellate courts, both Appellant and
the Commonwealth are incorrect that Section 4953 only applies
to witnesses or victims in civil matters.

Prior to December 20, 2000, Section 4953 read: “[a] person
commits an offense if he harms another by any unlawful act in
retaliation for anything lawfully done in the capacity of witness or
victim.” 18 Pa.C.S.A. § 4953(a) (prior version). However, the
current version, which took effect on December 20, 2000, added
the phrase “or a party in a civil matter.” 18 Pa.C.S.A. § 4953(a).
Since coming into effect, the statute has been applied, by both
the Pennsylvania Supreme Court and this Court, to victims and
witnesses in criminal proceedings. See, e.g., Commonwealth
v. Ostrosky, 589 Pa. 437, 909 A.2d 1224, 1232-1233 (2006)
(holding that Section 4953 did not apply to victims of a criminal
proceeding only because a single threat did not result in objective
harm to victims); Commonwealth v. Brewer, 876 A.2d 1029
(Pa. Super. 2005) (affirming conviction under Section 4953 of
retaliation against witnesses in a criminal proceeding), appeal

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denied, 585 Pa. 685, 887 A.2d 1239 (2005). We therefore
conclude, mindful of relevant case law and the rules of statutory
interpretation, that retaliation against victims or witnesses in
criminal proceedings may be properly prosecuted under Section
4953.

Id. at 243 (footnote omitted).

As the most recent decision from our Court addressing this issue,

Nevels is binding. We recognize that, on July 31, 2019, our Supreme Court

granted allowance of appeal in Nevels, limited to the following issue:

Whether the evidence was insufficient as a matter of law to the
charges of Retaliation Against Witnesses or Victim (18 Pa.C.S.
§ 4953(a)), where the evidence demonstrated that if Petitioner
had retaliated against anyone, no such person had been party in
a civil matter, but rather had testified or was about to testify in a
criminal matter?

Nevels, 216 A.3d 1042 (Table) (Pa. 2019).3 However, unless and until the

Supreme Court says otherwise, this Court’s decision in Nevels is binding

precedent. As we explained in Commonwealth v. Pepe, 897 A.2d 463 (Pa.

Super. 2006):

It is beyond the power of a Superior Court panel to overrule a
prior decision of the Superior Court, Commonwealth v. Hull,
705 A.2d 911, 912 (Pa. Super. 1998), except in circumstances
where intervening authority by our Supreme Court calls into
question a previous decision of this Court. Commonwealth v.
Prout, 814 A.2d 693, 695 n. 2 (Pa. Super. 2002).

Id. at 465. As was the situation in Pepe, the Supreme Court has done nothing

more in Nevels than grant an appeal for the purpose of determining whether

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3 See 32 WAP 2019.

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a defendant can be guilty of retaliation under Section 4953(a) if the person

allegedly retaliated against has not been a witness in a civil matter. Because

our Supreme Court has not yet ruled upon the question, it is beyond the power

of this panel to overrule Nevel. Appellant’s second sufficiency issue fails.

In his third issue, Appellant claims the verdicts on the intimidation and

retaliation charges were against the weight of the evidence, a challenge he

preserved by raising it in his post-sentence motion. As this Court has

explained:

[A]ppellate review of a weight claim is a review of the [trial
court’s] exercise of discretion, not of the underlying question of
whether the verdict is against the weight of the evidence. Because
the trial judge has had the opportunity to hear and see the
evidence presented, an appellate court will give the gravest
consideration to the findings and reasons advanced by the trial
judge when reviewing a trial court’s determination that the verdict
is against the weight of the evidence. One of the least assailable
reasons for granting or denying a new trial is the lower court’s
conviction that the verdict was or was not against the weight of
the evidence and that a new trial should be granted in the interest
of justice.

Corvin v. Tihansky, 184 A.3d 986, 992 (Pa. Super. 2018) (quoting Phillips

v. Lock, 86 A.3d 906, 919 (Pa. Super. 2014) (internal quotation marks and

citation omitted)).

We stress that if there is any support in the record for the trial
court’s decision to deny the appellant's motion for a new trial
based on weight of the evidence, then we must affirm. An
appellant is not entitled to a new trial where the evidence
presented was conflicting and the fact-finder could have decided
in favor of either party.

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Id. at 992-93 (quoting Winschel v. Jain, 925 A.2d 782, 788 (Pa. Super.

2007) (additional citations omitted)).

Here, the trial court reviewed Appellant’s assertion that the intimidation

and retaliation convictions were against the weight of the evidence because

the jury acquitted Appellant of aggravated assault and firearms violations.

The court also considered Appellant’s contention that the verdict shocks the

conscience and is against the weight of the evidence because the jury rejected

Bailey’s claim that Appellant committed aggravated assault.

The court explained, as we have above, that a defendant need not be

convicted of an underlying crime to be found guilty of intimidation and

retaliation, and that consistency in a verdict is not required. Trial Court

Opinion, 2/25/19, at 5-7. The court noted:

In this case, it was the sole province of the jury, as the fact finder,
to assess [Bailey’s] credibility and determine the weight to be
given his testimony and resolve any conflicts in his testimony.
Here, the jury weighed the evidence presented, evaluated
[Bailey’s] testimony, and evidently found him credible in some
respects, as it was entitled to do.

Id. at 8. The court pointed to its instruction to the jury, explaining that the

jury could disregard all of a witness’s testimony if the jury found a witness

falsified all or some testimony, or that the jury could accept that part of the

testimony it found to be true while rejecting the part not worthy of belief. Id.

(citing Jury Instructions, Notes of Testimony, 5/16/17, at 11). The court

concluded:

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Therefore, the jury could have believed some of [Bailey’s]
testimony, but not all. The jury’s inconsistent verdicts are not so
contrary as to shock one’s sense of justice because the jury may
have found [Appellant] not guilty of aggravated assault [and
weapons charges], but could still have believed [Bailey’s]
testimony that [Appellant] intimidated, or attempted to
intimidate, him from speaking to the police about the stolen gun
and that [Appellant] had physically attacked [Bailey] in retaliation
for speaking to the detective about the crime.

Id.

This Court will not substitute its judgment for the finder of fact,

recognizing the finder of fact “is free to believe all, part, or none of the

evidence and to determine the credibility of the witnesses.” Commonwealth

v. Champney, 832 A.2d 403, 408 (Pa. 2003) (citation omitted). Finding no

abuse of discretion in the trial court’s rejection of Appellant’s weight of the

evidence claim, we will not disturb it.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/28/20

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