Commonwealth v. Lynch

DISSENTING OPINION

BY BENDER, J.

The Majority today expands the scope of Pennsylvania’s witness intimidation statute well beyond any interpretation previously applied to it by the courts of this Commonwealth. Those previous interpretations, having already stretched the text of the statute to the outermost limits of reason, are now but a starting point for further expansion. Furthermore, the Majority only reaches its conclusion by sitting as fact-finder, a role we are not permitted to undertake. Respectfully, yet adamantly, I must dissent.

I begin by noting the not insignificant fact that the Majority reaches today’s decision by ignoring, if not implicitly rejecting, the reasoning offered by the trial court in support of Appellant’s conviction for witness intimidation. The trial court found that:

The record in this case clearly demonstrates that there was sufficient evidence to support the guilty verdict for [18 Pa.C.S. § 4952], In this case, [Appellant] made two phone calls to his victim just days after beating her with a baseball bat and choking her. In those phone calls from prison [Appellant] specifically asked his victim to drop the charges and not testify against him in court. Additionally, [Appellant] sent a letter to his victim again pressing her not to testify against him. Through this letter, [Appellant] made it clear to his victim that she was the key to him being released from prison. After listening to the evidence presented by the Commonwealth regarding the brutal beating of the victim by [Appellant] and the phone calls and letter from prison, the Court inferred from the surrounding circumstances that [Appellant] intended to intimidate his victim so she would not testify against him.

Trial Court Opinion (TCO), at 2-3.

Thus, the trial court determined that Appellant “intended to intimidate his victim so she would not testify against him” based upon the “surrounding circumstances” rather than based upon any direct statement made by Appellant during the two phone calls to the victim or written in the letter. Id. The trial court did not describe what the “surrounding circumstances” were other than by its allusion to the evidence of the underlying crime, which the court expresses as “the brutal beating of the vietim[.]” Id. I would reverse the trial court because, absent such bootstrapping, there were no facts of record supporting a finding of intimidation. The evidence demonstrated Appellant begged, pleaded, and prostrated himself before the victim. These actions are the antithesis of intimidation.

The trial court made no factual finding whatsoever concerning whether Appellant offered a “pecuniary or other benefit” to the victim. Yet, that is precisely the basis on which the Majority rests its decision: “the record includes additional instances in which Appellant communicates a clear offer of pecuniary and other benefits as prohibited by the witness intimidation statute.” Majority Opinion, at 710. The trial court opinion did not cite to the pecuniary benefits provision, 18 Pa.C.S. 4952(b)(l)(ii), nor did it conduct any factual or legal analysis under that portion of the statute. This should come as no surprise considering the fact that neither the criminal complaint filed by the police, nor the criminal *713information prepared by the Commonwealth, referenced the pecuniary benefit provision by name or in substance.

It is certainly true that “[a] ruling or decision of a lower court will be affirmed if it can be supported on any basis despite the lower court’s assignment of a wrong reason.” Commonwealth v. Terry, 513 Pa. 881, 521 A.2d 398, 409 (1987). Yet, in this instance, the Majority does not merely apply a different legal basis to the same facts upon which the trial court found the evidence sufficient to support conviction. Instead, the Majority dons the cloak of fact-finder to parse through the record in pursuit of ‘facts’ that were neither explicitly nor implicitly found by the trial court. However, “the decision whether to draw [an] inference” from the evidence that would fulfill an element of a criminal offense “rests with the fact-finder, not an appellate court. It is the province of the trier of facts to pass upon the credibility of witnesses and the weight to be accorded the evidence produced.” Commonwealth v. Murray, 460 Pa. 605, 334 A.2d 255, 257 (1975). Thus, even assuming that the Majority’s expansive view of section 4952(b)(1)(ii) is correct, this case does not present a factual basis upon which to reach that result. It is only by usurping the trial court’s role as fact-finder that the Majority decision is attainable, and on that basis alone the Majority’s decision today is indefensible.1

The substance of the Majority’s decision today is no less troubling. Succinctly put, the Majority concludes that an offer of “a more stable and rewarding family life ... in exchange for [the Victim’s] refusal to testify” constitutes sufficient evidence of an offer of a pecuniary or other benefit prohibited under section 4952(b)(1)(h). Majority Opinion, at 710. The Majority sustains this conclusion based upon an overly expansive reading of our Supreme Court’s decision in Commonwealth v. Brachbill, 520 Pa. 533, 555 A.2d 82 (1989). The benefits offered in exchange for the victim’s refusal to testify in Brachbill may have been minimal, yet they were unquestionably pecuniary in nature, both because an actual dollar amount was offered, and because the additional offer of clothing and dinner were benefits of tangible monetary value. Here, Appellant’s promise of a better life for the victim and their mutual children is both indirect and remote, and not a benefit capable of monetary valuation.

An offer of a better life for the victim and her children is simply not a pecuniary or similar “other” benefit within the literal meaning of section 4952(b)(1)(h), nor is it obvious that prohibition of such a promise comports with the intent of the statute. The statute reads in pertinent part as follows:

(b) Grading.—
(1) The offense is a felony of the degree indicated in paragraphs
(2) through (4) if:
(ii) The actor offers any pecuniary or other benefit to the witness or victim *714or, with the requisite intent or knowledge, to any other person.

18 Pa.C.S. 4952(b)(l)(ii).

When interpreting the terms of a criminal statute, this Court adheres to the following principles:

[N]o conduct constitutes a crime in this Commonwealth unless it is a crime under Title 18 or another statute. Stated differently, Pennsylvania is a “code jurisdiction”: it recognizes no common law crimes. Necessarily, then, when the judiciary is required to resolve an issue concerning the elements of a criminal offense, its task is fundamentally one of statutory interpretation, and its overriding purpose must be to ascertain and effectuate the legislative intent underlying the statute.
Moreover, penal statutes are to be strictly construed. The need for strict construction does not require that the words of a penal statute be given their narrowest possible meaning or that legislative intent be disregarded, nor does it override the more general principle that the words of the statute must be construed according to their common and approved usage. It does mean, however, that where an ambiguity exists in the language of the penal statute, such language should be interpreted in the light most favorable to the accused. More specifically, where doubt exists concerning the proper scope of a penal statute, it is the accused who should receive the benefit of such doubt.... Significantly, a court may not achieve an acceptable construction of a penal statute by reading into the statute terms that broaden its scope.

Commonwealth v. Reaser, 851 A.2d 144, 148-49 (Pa.Super.2004) (quoting Commonwealth v. Booth, 564 Pa. 228, 766 A.2d 843, 846 (2001)). Furthermore, “strict construction is a means of assuring fairness to persons subject to the law by requiring penal statutes to give clear and unequivocal warning in language that people generally would understand, as to what actions would expose them to liability for penalties and what the penalties would be.” Reaser, 851 A.2d at 149 (quoting Commonwealth v. Cluck, 252 Pa.Super. 228, 381 A.2d 472, 477 (1977)).

The legislature, by use of the phrase, “pecuniary or other benefit” clearly intends to use the word “other” to identify benefits like or similar to pecuniary benefits. Use of the word “other” in this context does not encompass any other form of a benefit. If that were the case, a far more simple construction would have been both sufficient and crystal clear. If the legislature meant any type of benefit, pecuniary or otherwise, the phrases “ ... offers any benefit” or “ ... offers a benefit” would have been far more concise. Even far more awkward constructions would have been less ambiguous than using the phrase “pecuniary or other benefit” to mean any form of a benefit. Thus, the only way to avoid ambiguity in the reading of the phrase as it appears in the text of the statute is to limit the meaning of “other” to those benefits “like or similar to pecuniary benefits.”

The Majority does not acknowledge the less ambiguous, plain meaning of the text, and instead it has implicitly adopted the more ambiguous, awkward, and expansive construction that permits ‘any type of benefit whatsoever no matter how speculative or tenuous’ to be read into the phrase “pecuniary or other benefit.” However, it has long been the explicit policy of the appellate courts of this Commonwealth that “[a]ny ambiguity concerning the ambit of a penal statute must be resolved in favor of lenity.” Commonwealth v. Reaser, 851 A.2d 144, 149 (Pa.Super.2004). The Majority has done a serious disservice to *715this principle today by adopting a meaning that renders the phrase “pecuniary or other benefit” more ambiguous than is necessary or prudent. I have little doubt that a reasonable citizen reading the provisions of 18 Pa.C.S. 4952 would find the statute at least ambiguous with regard to whether the conduct at issue in this case was prohibited. Regardless of the direction the Majority takes today, Appellant should be afforded the benefit of that ambiguity, as the standard set by the Majority was hardly foreseeable in light of the plain text of the statute.

The Majority rejects a straightforward interpretation of section 4952(b)(l)(ii) in favor of the more expansive and ambiguous one, because Appellant’s proposal “targeted a parent’s basic drive to meet core childcare needs[,]” and because it “was not, under the circumstances, so preposterous that it failed to constitute a valid offer.” Majority Opinion, at 711. The Majority concedes, at least, that “an offer of benefits may be so vague, incredible, or frivolous on its face that it necessarily fails to constitute the criminal act proscribed by the statute.” Id. The incongruity of these points, however, is glaring. If these ‘facts’ do not constitute a vague, incredible, or frivolous offer, what does? The bar has been set so low by the facts of this case that a prosecutor need only trip over it to satisfy the Majority. Surely the brutality of Appellant’s underlying crime, the fact that he was incarcerated at the time he conversed with the victim, and his demean- or during those conversations, should lead this Court to recognize how frivolous his offer was, even if it was not vague enough to suit the Majority’s standards.

Promises of better behavior or new beginnings are such an inextricable part of any conversation held between those attempting to salvage failing relationships that one cannot help but think that the Majority’s decision today criminalizes nearly any communication between victims and perpetrators of domestic violence. No such intent can be discerned from the witness intimidation statute. Today, the Majority piles on punishment to the perpetrator of a horrendous act of violence. Tomorrow, the violence may itself be negligible and the intent of the parties to reconcile outside the court system mutual and sincere, yet, the Majority’s unrestrained interpretation of section 4952(b)(l)(ii) criminalizes efforts at atonement should a defendant dare suggest that the criminal justice system is an inappropriate venue to settle an marital dispute or similar affair.

Because the Majority usurped the role of fact-finder, adopted a dramatically expansive, awkward, and ambiguous construction of the phrase “pecuniary and other benefits” as set forth in section 4952(b)(1)(h), and because the Majority ignored the principle of lenity, I respectfully dissent.

. It may be the case that the pecuniary benefits provision is not an ‘element’ of the offense of witness intimidation, but rather exists only as a sentencing factor. Accordingly, the Commonwealth’s failure to specifically charge Appellant pursuant to one of those provisions may not preclude a conviction premised upon an offer of pecuniary benefits. See Commonwealth v. Stokes, 38 A.3d 846, 861 (Pa.Super.2011) ("Sentencing factors ... do not need to be proven beyond a reasonable doubt, nor even included in a criminal information or indictment.”). Nevertheless, it is never within the province of this or any other appellate court to assume the role of fact-finder despite the difference in the underlying standard of proof between elements of crimes and sentencing factors.