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2017 PA Super 90
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
KAREEM OMAR VON EVANS
Appellant : No. 383 EDA 2016
Appeal from the Judgment of Sentence November 20, 2015
In the Court of Common Pleas of Bucks County
Criminal Division at No(s): CP-09-CR-0007695-2014
BEFORE: STABILE, DUBOW, JJ., and STEVENS, P.J.E.*
CONCURRING OPINION BY STEVENS, P.J.E.: FILED APRIL 06, 2017
I would find Appellant's conduct must go unpenalized only because the
trial court made a specific finding of fact that he did not intend to intimidate
the victim with his offer of pecuniary benefit. Notwithstanding the court's
identification of both a brutal underlying crime endured by the victim and
the unavoidable intimidation she would have experienced from Appellant's
menacing offer had it reached her, the court did not infer from such
evidence that it was Appellant's conscious object to intimidate the victim
through the offer. Indeed, the court credited Appellant's word that he did
not mean to intimidate the victim, and it, instead, supported its verdict
exclusively on the intimidating effect the offer would have had. But for the
* Former Justice specially assigned to the Superior Court.
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court's finding of fact in this regard, I would affirm the judgment of
sentence.
Because Appellant's offer of pecuniary benefit never reached the
victim, the Commonwealth could make a case for Section 4952 Intimidation
of a Witness only upon proof that Appellant attempted to intimidate her. "A
person commits an attempt when, with intent to commit a specific crime, he
does any act which constitutes a substantial step toward the commission of
that crime." 18 Pa.C.S. § 901(a) (emphasis added). "A person acts
intentionally with respect to a material element of an offense when[,] if the
element involves the nature of his conduct or a result thereof, it is his
conscious object to engage in conduct of that nature or to cause such a
result." 18 Pa.C.S. § 302(b)(1) (emphasis added). For example, on a
charge of Attempted Aggravated Assault, evidence must prove that, when a
defendant fired his gun, it was his intention or "conscious object" to inflict
serious bodily injury. See Commonwealth v. Hall, 630 A.2d 537, 541 (Pa.
2003). Here, therefore, the Commonwealth bore the burden of proving it
was Appellant's conscious object to commit the material element of
intimidation.
In the non -jury trial, however, the trial court accepted Appellant at his
word that he intended only to "pay off" the victim, not to intimidate her:
"So I've considered the facts of the case, the nature of the case, and the
reasons that one would commit such a crime. And you just told me why you
did this and I've accepted what you just told me." N.T. 11/20/15 at 27.
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Similarly, while the court later expressed in its Pa.R.A.P. 1925(a) opinion
that the victim would have necessarily felt intimidated by Appellant's offer
had she received it, it nevertheless stopped short of inferring from the
nature of the offer and the related consequences that Appellant intended to
intimidate. In fact, it identified an absence of intent: "Appellant may not
have considered his conduct as intimidating, but he should not receive a
benefit for his lack of appreciation for basic human sensitivities and what
would be [his victim's] natural reaction to his conduct." Trial Court Opinion,
5/13/16 at 9 (emphasis added).
Essentially, in the trial court's own words, it based Appellant's
conviction not on requisite proof that it was Appellant's conscious object to
intimidate the victim-indeed, the court specifically found Appellant did not
mean to intimidate-but, instead, on proof that the victim would have felt
intimidated under the circumstances. Having explicitly found an intent to
intimidate lacking, the court could not appropriately rely solely on this latter
basis-the effect upon the victim-to establish the mens rea element of an
attempt to intimidate. It is for this reason, alone, that I believe we are
constrained to vacate judgment of sentence.
Had the finder of fact not credited Appellant's avowals that he acted
without intent, I would have deemed the totality of circumstances sufficient
to support a reasonable inference that Appellant attempted to engage in
intimidating behavior.
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"[A pecuniary] inducement may or may not intimidate," and whether it
"contains sufficient indicia of intimidation is to be determined by the fact
finder and assessed under the totality of circumstances, cognizant that proof
of manifest threats is not required." Commonwealth v. Doughty, 126
A.3d 951, 957 (Pa. 2015) (noting "a mere look or posture can . . . intimidate
beyond question."). It is axiomatic, moreover, that we consider the
evidence in this regard in the light most favorable to the Commonwealth as
verdict winner. Id. at 958.
A totality of circumstances assessment of the present facts involves
viewing Appellant's attempted offer not in isolation but within an historical
context. The first time Appellant met the victim, he and his cohort subjected
her to a horrific multiple rape -at -shotgun -point. So considered, Appellant's
attempt afterward to reach the victim through an intermediary and convey
his desire that she keep quiet in exchange for money carried with it an
inherent element of menace and coercion deriving from the profoundly
violative and merciless nature of their initial meeting.
Doughty includes within the bounds of 18 Pa.C.S. § 4952 intimidation
those ostensible offers of benefit that implicitly intimidate under the
circumstances. Id. at 957. Here, the only history between Appellant and
his victim involved extreme violence and utter disregard for her humanity.
In light of this history, Appellant's attempt to contact her a second time may
reasonably be viewed as bearing sufficient indicia of an intimidating message
that this was an offer the victim "should not refuse." Id. For this reason, I
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conclude that the totality of circumstances allowed for the reasonable
inference that it was, indeed, Appellant's conscious object-his intent-to
engage in conduct of an intimidating nature.
Accordingly, I would find the Commonwealth met its burden of proof
and would affirm on that basis, had not the trial court made the specific
finding of fact that Appellant did not intend to intimidate.
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