Commonwealth v. Ostrosky

CONCURRING AND DISSENTING STATEMENT BY

POPOVICH, J.:

¶ 1 I disagree with the majority’s decision to reverse Appellant’s judgment of sentence pertaining to the conviction under the retaliation statute. Accordingly, I respectfully dissent to this holding. I agree with the majority’s dismissal of Appellant’s ineffective assistance of counsel claim without prejudice to raise on collateral review.

¶ 2 The majority held that the legislature did not intend to punish the single incident of threatening verbal conduct under the retaliation statute. Maj. Op., at 430-31. I disagree.

¶ 3 The crime of retaliation against a witness, victim, or party is defined as:

§ 4953. Retaliation against witness, victim or party
(a) Offense defined. — A person commits an offense 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 *432witness, victim or a party in a civil matter.

¶ 4 I agree with the majority that the portion of § 4953(a) applicable in the present case can be stated as: A person commits an offense if he harms another by any unlawful act in retaliation for anything lawfully done in the capacity as witness or a victim. Clearly, Appellant committed unlawful acts, his convictions for terroristic threats, disorderly conduct, and harassment support this contention, and Appellant committed these acts in retaliation for Mr. Foster’s status as victim in Appellant’s prior crime of vandalism of their vehicle, as evidenced by Appellant telling Mr. Foster that it was his fault that Appellant went to jail for vandalism. The final question that we must answer is whether Appellant’s unlawful acts caused “harm.” I believe that Appellant’s acts of threatening to assault Mr. Foster physically and to assault Mrs. Foster physically and to sodomize her constituted “harm” as envisioned by the Legislature. When Appellant first threatened Mr. Foster, he thought the situation was “funny.” However, as Mrs. Foster approached the two men, Appellant then told Mr. Foster, “You ain’t going to find this funny when I am slapping your wife around and ass fucking her.” N.T. Trial, 6/16/03, at 19. At this point, Mr. Foster started looking for help and asked for someone to call the police. See id., at 20. Mrs. Foster was told what Appellant had said about her and said she then felt intimidated. See id., at 36. I believe that Appellant’s actions, and the Fosters’ respective responses thereto, demonstrate “harm.”

¶ 5 The majority found that the legislature did not envision a single threat would constitute a conviction for retaliation because the legislature amended the statute to prohibit repeated threatening conduct against witness, victim, or opposing party in civil litigation, and, therefore, a single threat would not be punishable. I disagree from the majority’s rationale.

¶ 6 Specifically, I believe that a single threat may be punishable if the Commonwealth can establish “harm,” as was in this instance. To rule out a single threat from retaliation defies logic. For example, if, on one occasion, a person threatens a witness because the witness testified against him and this threat causes psychological harm requiring medical treatment to the witness, I believe that the elements of retaliation have been met. As I read the statute, the legislature’s amendments added actions that did not involve “harm” to the retaliation statute, namely, course of conduct and repeated threats. A single threat may still lead to a conviction if the Commonwealth can prove harm.

¶ 7 I agree with the majority that Appellant’s claim of ineffective assistance of counsel is precluded pursuant to Commonwealth v. Grant, 572 Pa. 48, 813 A.2d 726 (2002). The strict application of the rule in Grant has been relaxed in instances where the short duration of a defendant’s sentence would effectively preclude collateral review. See Commonwealth v. Salisbury, 823 A.2d 914 (Pa.Super.2003). In this case, Appellant will have sufficient time (sentence will expire July 28, 2006, following twenty-three month maximum sentence and one-year probation) within which to pursue any claims of relief under the PCRA. Cf. Commonwealth v. Blessitt, 852 A.2d 1215 (Pa.Super.2004) (16- to 32-month sentence and defendant out-on-bond was sufficient time); contrast Commonwealth v. Ross, 856 A.2d 93 (Pa.Super.2004) (sentence expires in October 2004 and Superior Court disposition filed in July 2004 was not sufficient time).

¶ 8 For the foregoing reasons, I would affirm the judgment of sentence on the retaliation conviction and agree that Ap*433pellant’s ineffective assistance of counsel claim must await collateral review.