dissenting.
I must disagree with the majority’s conclusion that the evidence presented in Appellee’s criminal prosecution rose to a level sufficient as a matter of law to prove the information filed.
From a review of the record, I find, as did the Superior Court, that Appellee dealt with Gibbs with the sole intent of settling the possible civil and criminal effects arising out of an assault on Gibbs. It is important to note that this is not a question of an individual attempting to contact or influence a witness to a prosecution, but rather one of an attorney for one of the parties negotiating with the sole victim of an assault for restitution after the victim had expressed a desire to settle. The mere act of an attorney for a criminal defendant negotiating a complete settlement *311with the sole victim of the defendant’s conduct which subjects said defendant to both civil and criminal liability is not violative of either the letter or the spirit of the witness tampering prohibition. Indeed, this practice is frequently utilized with approval by courts throughout the Commonwealth as a means of expediting the criminal system.
Appellant was convicted of witness tampering under then-in-effect 18 Pa.C.S.A. § 4907. That section provided as follows:
(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 supply evidence; or
(4) absent himself from any proceeding or investigation to which he has been legally summoned.
(b) Grading. — The offense is a felony of the third degree if the actor employs force, deception, threat or offer of pecuniary benefit. Otherwise it is a misdemeanor of the second degree, (emphasis added)
Clearly, from the italicized portions of the statute above, section 4907(a) requires a particular mens rea, namely, that the actor possessed the subjective belief that an official proceeding was pending or about to be instituted and that the actor specifically intended by his conduct to induce or cause a witness or informant to take any of the unlawful actions enumerated in subsections (1) — (4). Moreover, to rise to the felony level, the actor must employ force, deception, threat or the offer of pecuniary benefit in the attempt to achieve said specific intent. In the absence of the rare direct expression of an actor’s subjective intent and state of mind, the mens rea must necessarily be proven by circumstantial evidence and inferences arising from the actor’s words and deeds.
*312As this Court has stated many times, the test for reviewing the sufficiency of the evidence is:
[W]hether accepting as true all the evidence and all reasonable inferences deductible from such evidence, upon which the trier of fact could have based its verdict, the evidence and inferences are sufficient in law to prove guilt beyond a reasonable doubt, (citations omitted). Moreover, in reviewing the evidence, we must consider it in the light most favorable to the verdict winner, (citations omitted).
Commonwealth v. Scudder, 490 Pa. 415, 418, 416 A.2d 1003, 1005 (1980). Further, while wholly circumstantial evidence may sustain a criminal conviction if sufficiently strong to support an inference of guilt beyond a reasonable doubt as to each material element of a crime, id., the conviction may not be based upon mere surmise or conjecture. Commonwealth v. Thomas, 465 Pa. 442, 446, 350 A.2d 847, 849 (1976); Commonwealth v. Derr, 501 Pa. 446, 462 A.2d 208 (1983). As we stated in Commonwealth v. New, 354 Pa. 188, 221, 47 A.2d 450, 468 (1946), “[w]hen two equally reasonable and mutually inconsistent inferences can be drawn from the same set of circumstances, a jury must not be permitted to guess which inference it will adopt, especially when one of the two guesses may result in depriving a defendant of his life or his liberty.” See also Commonwealth v. Wojdak, 502 Pa. 359, 367-70, 466 A.2d 991 (1983) (Opinion announcing the judgment of the Court).
With the foregoing principles in mind, I have reviewed the record and find it inadequate to support appellee’s conviction for tampering with a witness; specifically, I find insufficient evidence to demonstrate beyond a reasonable doubt that appellee possessed the requisite mens rea.
As to the charges stemming from the events of August 21, 1980, the evidence against appellee was primarily the trial testimony of Ezekial Gibbs who testified that $1,600 would be paid him by the Teamsters union in exchange for Gibbs dropping the criminal charges against the union members and for settlement of the civil suit. Gibbs’ testi*313mony was contradicted by appellee and the union’s business agent, and appellee was acquitted on the charges of tampering pertaining to his actions of August 21, 1980.
As to the charges stemming from the events of September 22, 1980, for which appellee was found guilty, the evidence against appellee consisted of the tape recorded conversations between appellee and Gibbs. The transcript of substantial portions of those conversations are set forth in the majority opinion, obviating my need to do so in this opinion. However, I cannot read those conversations or any other record evidence as supporting a criminal intent on appellee’s part — not even by a preponderance of the evidence and certainly not beyond a reasonable doubt.
From the beginning when Gibbs discussed the matter with the Teamsters’ business agent, Gibbs expressed his intention to drop the criminal charges against the union members. The business agent relayed this information to appellee and Gibbs confirmed his stated intention to drop the criminal charges in all of his discussions with appellee. Gibbs admitted at trial that he never informed either appellee or any union official that he had changed his mind and decided to pursue the prosecution of the union members. Accordingly, it is uncontradicted that at all times appellee acted on the belief that Gibbs did not intend or desire to press the criminal charges.
Appellee made several unequivocal statements to Gibbs on September 22nd that the money to be paid him by the union was strictly for settlement of Gibbs’ civil claims against the union and its members, “no matter what happened]” with the criminal charges.1 That is, the money for the settlement of the civil claims would be paid whether or not the union members were criminally prosecuted. See note 2, supra. These unequivocal statements were buttressed by the language of the final release executed by Gibbs which states: “This Release does not apply to any criminal proceedings nor does it place me under any obli*314gation whatsoever to refrain from the prosecution of any criminal actions____” Appellee also stated several times to Gibbs that the decision whether to prosecute was to be made of his own free will. He further told Gibbs that his clients needed Gibbs’ cooperation in the withdrawal of the criminal charges and explained what that cooperation might entail.
Maintaining the posture that he intended to drop the criminal charges, Gibbs began to lie to appellee. Gibbs admitted at trial that he lied to appellee in telling appellee that the District Attorney’s office intended to subpoena him (Gibbs) and had threatened to prosecute him if he did not proceed on the criminal charges. Responding to these lies “as an attorney”, appellee discussed with Gibbs the possibilities of what might happen to him (Gibbs) in a prosecution for perjury2 and explained the mechanics of the subpoena process. Appellee advised Gibbs, however, to discuss these matters with independent counsel, and referred Gibbs to another attorney.
Finally, it should be noted that Gibbs did, in fact, receive the agreed-to settlement sum and that the union members were, in fact, prosecuted on the criminal charges stemming from the picket-line incident.
Even if appellee’s taped conversations were susceptible of the inference that appellee counselled Gibbs on how to change his testimony and how to avoid a subpoena, as the majority infers, there is nothing in those conversations or elsewhere on the record from which one could infer that appellee was attempting to induce Gibbs to alter his testimony or “duck” service. To the contrary, the record *315demonstrates that Gibbs induced appellee, through misrepresentations, to offer advice on the possibility of perjury and the possibility of ignoring a subpoena. Even though appellee’s advice may have been ill-advised, there is no support for the inference that it was rendered with the requisite mens rea or criminal intent. It was Gibbs who made manifest his intention to drop the criminal charges against appellee’s clients; it was Gibbs who deceptively elicited appellee’s advice on Gibbs’ possible prosecution for perjury; it was Gibbs who deceptively elicited appellee’s advice regarding the subpoena; Gibbs was, consequently, the “inducer,” not the “inducee.” Even if the contrary inference (that appellee attempted to induce Gibbs to alter his testimony or elude legal process) were equally supported by the record (which it is not), a jury must not be permitted to guess or to speculate as to its choice of equally compelling inferences, one lawful and one unlawful, where the quantum of proof required is proof beyond a reasonable doubt. See, e.g., Commonwealth v. New, supra and Commonwealth v. Scudder, supra. Accordingly, I would hold that the Commonwealth has failed to meet its burden of establishing a material element of the crime of tampering with a witness as it has produced insufficient evidence to demonstrate that appellee attempted to induce or otherwise cause Gibbs to testify falsely, to withhold testimony, to elude legal process or to absent himself from proceedings.
Moreover, even if the requisite criminal intent were present (which it is not), the offense in this case could not be graded higher than a misdemeanor of the second degree, for there is no proof that the actor employed force, deception, threat or offer of pecuniary benefit. 18 Pa.C.S.A. § 4907(b). The only suggestion of an offer of pecuniary benefit is the $1600 (and a possibility of coming up with a bit more) for the settlement of Gibbs’ civil claims. However, the unequivocal tape recorded conversations and the language of the final release prove that appellee made it quite clear that Gibbs would receive that amount for settle*316ment regardless of whether he withdrew the criminal charges, even though the union and appellee expected and desired Gibbs’ cooperation on those charges. Payment was actually made despite the prosecution to trial of those charges. The record does not support, therefore, a finding that the appellee’s conduct was accompanied by an offer of pecuniary benefits in exchange for Gibbs’ performing all or some of the actions enumerated in 18 Pa.C.S.A. § 4907(a)(l-4).
Because the judiciary must take care to ensure that law enforcement officers do not cross the line between active investigation and zealous advocacy of the public’s interests, on the one hand, and active participation in the manufacture of crimes, on the other, my careful review of the entire record compells me to note my dismay at the questionable tactics employed in the instant case. As set out before, the record clearly indicates that it was Gibbs’ sole intention and desire to drop the criminal charges against the four defendants. He communicated this desire to Joe Yeoman of the Teamsters Union. It was only after Gibbs had contacted the District Attorney’s Office and agreed to be wired with a tape recorder that the testimony indicates Gibbs’ “change of heart.” The transcripts of those covert recordings viewed in the light of the earlier happenings reveal the attempt by Gibbs through various fabrications to lead the Appellee into making statements that would incriminate him in a scheme to influence Gibbs’ decision to prosecute. Gibbs several times admits that statements he made to Syre were complete fabrications. I must therefore emphasize to all prosecutors that the function of the prosecutor’s office is not to merely seek convictions, but rather to seek justice.
For the foregoing reasons, I would affirm the Superior Court’s order reversing Appellee’s conviction and discharge him.
LARSEN, J., joins in this dissenting opinion.. See, e.g. Brief for Appellant, Appendix D at 2, 8, 13; Appendix E at 10.
. From both the taped conversations and appellee’s trial testimony, it appears that appellee believed that, when Gibbs suggested the District Attorney’s office threatened him (Gibbs) with prosecution, such "prosecution" would be for perjury; that is, for giving prior sworn statements to the police investigators which contradicted his present posture of wishing to drop the case. Accordingly, appellee offered some suggestions as to what Gibbs might say at trial, if a trial was held, that would not place him in jeopardy of perjury charges.