J-S75013-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
DARRELL HUNTER
Appellant No. 416 EDA 2015
Appeal from the Judgment of Sentence January 9, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0003045-2014
CP-51-CR-0003048-2014
BEFORE: BOWES, MOULTON AND MUSMANNO JJ.
MEMORANDUM BY BOWES, J.: FILED OCTOBER 19, 2016
Darrell Hunter appeals from the judgment of sentence of eight to
sixteen years incarceration, plus ten years reporting probation, imposed
following his conviction for intimidation of a witness or victim
(“Intimidation”) and terroristic threats at action number 3045-2014, and
burglary, terroristic threats, and simple assault at action number 3048-2014.
We affirm.
Appellant’s charges stem from an altercation between him and the
mother of his three daughters, Nikkisha Whitfield, on January 13, 2014.
Appellant and Ms. Whitfield had arranged for Appellant to spend time with
his daughters and Ms. Whitfield’s oldest son while she was absent from her
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home. When Ms. Whitfield left for the afternoon, Appellant was already
waiting outside her house. He followed Ms. Whitfield to her bus stop, but did
not get on the bus with her. Ms. Whitfield sensed Appellant was angry at
that time.
When Ms. Whitfield returned home on the bus four or five hours later,
Appellant was waiting for her at the bus stop. Perceiving that Appellant’s
anger had intensified in the interim, Ms. Whitfield decided to go to a
neighborhood bar, deeming it safer to be in a crowd. Appellant followed Ms.
Whitfield to the bar, and began drinking and making angry threats to other
patrons. As a result of Appellant’s behavior, Ms. Whitfield decided to exit
the bar through its back door. She returned home using an alleyway running
behind her house. As Ms. Whitfield entered her backyard, Appellant
emerged from the backdoor of her house and physically assaulted her,
causing injuries to her face, ribs, arms, elbow, and knee. When one of the
children opened the backdoor, Appellant fled.
Ms. Whitfield entered her house, barricaded the backdoor with a chair,
and directed her daughter to call the police. While the police were standing
on Ms. Whitfield’s front porch, Appellant attempted to enter the house
through the barricaded backdoor. With his body halfway into the house,
Appellant threatened and attempted to harm Ms. Whitfield and their
children. He fled when police officers began pursuit. Following a short
chase, Appellant was apprehended and arrested.
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Later that evening, Ms. Whitfield contacted police to report that
Appellant had called her from a telephone located in the cell where he was
being held, and again threatened her and the children. She stated that
Appellant was on the other line at that moment, and when an officer
investigated, Appellant was indeed using the telephone in the holding cell.
Over the next four months, while he was awaiting trial on the charges
arising from his assault on Ms. Whitfield, Appellant continued to contact Ms.
Whitfield, both over the phone and via letters. In these communications, he
threatened Ms. Whitfield, entreated her to either drop the charges or refuse
to testify in court, and offered her money in exchange for doing so.
Following a bench trial, Appellant was convicted of the
abovementioned crimes. He filed a timely appeal and complied with the
court’s order to file a Rule 1925(b) statement of errors complained of on
appeal. The court then authored its Rule 1925(a) opinion, and this matter is
ready for our consideration. Appellant raises a single issue for our review:
“Was not the evidence insufficient for conviction on the charge of witness
intimidation?” Appellant’s brief at 3.
In reviewing claims challenging the sufficiency of the evidence, our
standard of review is well-settled:
[W]e examine whether the evidence admitted at trial, and all
reasonable inferences drawn therefrom, viewed in the light most
favorable to the Commonwealth as verdict winner, support the
jury’s finding of all the elements of the offense beyond a
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reasonable doubt. The Commonwealth may sustain its burden
by means of wholly circumstantial evidence.
Commonwealth v. Doughty, 126 A.3d 951, 958 (Pa. 2015).
Appellant contends there was insufficient evidence to convict him of
intimidation as defined by 18 Pa.C.S. § 4952. In pertinent part, 18 Pa.C.S.
§ 4952 states:
(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.
(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.
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(6) Absent [herself] from any proceeding or
investigation to which [she] has been legally
summoned.
(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, or with the requisite
intent or knowledge, to any other person.
18 Pa.C.S. § 4952(a) and (b)(1)(ii).
Appellant asserts that proof of actual or attempted intimidation is a
necessary element to convict a person of intimidation, and other forms of
inducement are not sufficient to sustain such a conviction. Furthermore, he
argues that the evidence offered at trial failed to substantiate that he acted
with intent to intimidate Ms. Whitfield. He maintains that any threats he
made to Ms. Whitfield were generalized threats, and not intended to deter
her from testifying. Similarly, later communications shared between the two
did not contain any threats or attempted threats aimed at preventing Ms.
Whitfield from appearing in court. Thus, Appellant concludes, the trial court
erred in finding otherwise, and his conviction for intimidation should be
vacated.
Our Supreme Court examined the requirements for convicting an
individual for intimidation in Doughty, supra. Doughty was charged with
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intimidation following a domestic dispute wherein he physically assaulted his
wife. Following his arrest, he attempted to call his wife multiple times, but
she did not answer the telephone since talking to him upset her. Doughty
then employed his father to set up a three-way conversation. During that
conversation, Doughty insisted that his wife not testify against him and
instructed her to claim she made a mistake. He also informed her that if she
did testify he would “go to jail for two years, starve, and lose everything,”
invoked the sanctity of their marriage, and promised to pay any fines she
incurred if she was charged with making false statements. Doughty, supra
at 952. As a result of this communication, the Commonwealth charged
Doughty with intimidation, of which he was ultimately convicted.
On appeal, Doughty challenged the sufficiency of the evidence for his
intimidation conviction, asserting the Commonwealth failed to prove the
element of intimidation since his wife testified that she was not intimidated
by the phone call, and there was no other evidence of intimidation. Relying
on Commonwealth v. Brachbill, 555 A.2d 82 (Pa. 1989), this Court
rejected Doughty’s sufficiency claim, holding that “an individual violates [§]
4952(a) even where ‘the Commonwealth’s evidence only established
inducements and did not prove any threats or attempts or coercion.’” Id.
at 953 (quoting Brachbill, supra at 85) (emphasis in original). Our
Supreme Court granted allocatur in Doughty to clarify the holding in
Brachbill.
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The High Court found that Brachbill did not negate the need to prove
intimidation in favor of mere inducements. Id. at 957. However, it
reasoned that intimidation could be “accomplished with no words at all,” or
that “an offer or benefit [could] be presented in such a Machiavellian manner
as to contain an unarticulated act of intimidation.” Id. The Supreme Court
established that “[w]hether an offer of a pecuniary or other benefit contains
sufficient indicia of intimidation is to be determined by the fact finder and
assessed under the totality of the circumstances, cognizant that proof of
manifest threats is not required.” Id. Hence, the Supreme Court overruled
Brachbill, “insofar as [it] is read to mean pecuniary inducement alone will
suffice without proof of intimidation[.]” Id.
Instantly, Appellant concedes he “angrily called [Ms. Whitfield] and
made threatening remarks” shortly after his arrest. Appellant’s brief at 8.
Furthermore, he admits that he asked her to refrain from attending court in
later conversations. Id. Ms. Whitfield testified that Appellant sent her
threatening and hostile letters. N.T. Trial, 10/29/14, at 27. Within these
communications, Appellant asked Ms. Whitfield to “clear this up . . . for our
children.” Commonwealth’s Exhibit 10c. He insisted that Ms. Whitfield drop
the charges and inform the District Attorney’s office that she had “made a
mistake.” Id. Appellant advised Ms. Whitfield that he would be coming into
some money due to a lawsuit, and promised her that if she dropped the
charges he would “make sure your [sic] good.” Id.
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In recorded prison conversations, Appellant echoed these same
implorations, promising Ms. Whitfield that if she dropped the charges then
“as soon as I get out I can give you the money so you can get, get another
. . . house or apartment[.]” Commonwealth’s Exhibit 11a, 2/15/14.
Furthermore, he asked Ms. Whitfield to “go down there and drop these
charges . . . for my kids.” Id.
The Pennsylvania Supreme Court clarified in Doughty, supra, that the
polestar of a conviction for intimidation is not necessarily actual or
attempted threats to a witness or victim. Rather, the courts view the totality
of the circumstances to determine whether a threat, attempted threat, or
inducement contains “sufficient indicia of intimidation.” Doughty, supra at
957. Here, Appellant perpetrated a brutal and unprovoked assault upon Ms.
Whitfield. Viewing Appellant’s numerous, subsequent interactions with Ms.
Whitfield in the light most favorable to the Commonwealth as the verdict
winner, we find sufficient evidence that his threats, pleas, and pecuniary
inducements were performed with the intent to, or knowledge that, his
conduct would obstruct, impede, impair, prevent or interfere with the
administration of criminal justice: i.e., that Appellant actions were intended
to convince Ms. Whitfield to withhold testimony or to fail to appear at
Appellant’s trial. Hence, Appellant is not entitled to relief.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/19/2016
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Com. v. Hunter, D
Combined Opinion