J-A08035-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O. P. 65.37 COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v. CHRISTOPHER ALLEN TEVIS Appellant No. 403 WDA 2013 Appeal from the Judgment of Sentence of November 1, 2012 In the Court of Common Pleas of Blair County Criminal Division at Nos.: CP-07-CR-0000703-2012 CP-07-CR-0001874-2011
BEFORE: SHOGAN, J., OLSON, J., and WECHT, J. MEMORANDUM BY WECHT, J.: FILED OCTOBER 03, 2014 Christopher Tevis appeals his November 1, 2012 judgmen t of sentence. We vacate Tevis’ judgment of sentence and rema nd for additional proceedings consistent with this memorandum. On August 23, 2011, D.S. and Tevis, her boyfriend a t the time, argued about their relationship throughout the day. When D .S. attempted to leave Tevis’ apartment, Tevis stood in front of the doorway , blocking her from exiting. Around midnight, Tevis demanded to have sex ual intercourse with D.S., a request that she refused. According to D.S., T evis then grabbed her by the arms, punched her in the head, used a utility knife to cut her shirt below her breast, and held a large kitchen knife to h er throat. Eventually D.S. was able to escape Tevis’ residence. D.S. later call ed the police and was taken to the Altoona Hospital by an ambulance. At the hospital, D.S.J-A08035-14

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accused Tevis of raping and assaulting her. On August 29, 2011, the Altoona Police arrested Tevis and charged him with aggr avated assault, simple assault, rape—forcible compulsion, and unlawful r estraint. 1 At the time of his arrest, Tevis made several unsolicited stateme nts to the police. Specifically, Tevis stated that D.S. had physically atta cked him without provocation by punching him in the face multiple times. Tevis further alleged that any injuries that D.S. suffered were the result of Tevis defending himself against D.S. Tevis was unable to post bail and remained lodged in t he Blair County Prison. While incarcerated, Tevis mailed a series of let ters to D.S. In Tevis’ first letter, dated August 30, 2011, Tevis asked D.S. t o testify that her initial report to the police was “exaggerated and inaccurate.” Notes of Testimony (“N.T.”), 7/30/2012, at 61. Tevis also instructed D.S . to state that she was under the influence of drugs and alcohol when she repor ted the incident to police, and that she was “under duress.” Id. On September 3, 2011, Tevis sent a second letter to D.S ., which stated, in relevant part, as follows: I’m being charged with rape and assault and like ten other things. You need to write a very serious letter to [ Magisterial District Judge] Todd Kelly explaining you were drunk and the only true part about the report was me holding you d own. . . . My hearing is September 7. Write a letter to the ju dge, Todd

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1 18 Pa.C.S. §§ 2702(a)(4), 2701(a)(1), 3121(a)(2), and 2902(a)(1), respectively.J-A08035-14

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Kelly, and be at 615 Fourth Street Altoona, at 2 p. m. on the 7 th so I can see you.

Id. at 64. Before his September 7, 2011 preliminary hearing, Te vis made several telephone calls to D.S. from the Blair County Prison. During those calls, Tevis told D.S. to recant her prior statements to police , to refuse to testify against him, and to request that the Commonwealth di smiss the charges against Tevis. Despite D.S.’s repeated refusals to comp ly, Tevis continued
to insist. Id. at 83, 108, 111, 120, 122. Tevis also circulated multiple notes to inmates in the B lair County Prison. In one such letter, Tevis wrote: [D.S.], Hollidaysburg, Altoona. . . . Don’t add me as a friend on FaceBook. Add her. Worry about me later. You got phone number [ sic ]. A good looking tall, dark, handsome musician could easily get close to her at bars like A.J.’s and Ter ry’s Place. You can see what she looks like on FaceBook. Get someon e to land her ass in jail before Christmas but after I am se ntenced. Drugs would be the easy way. I swear on my life [] I will take care of you. Destroy this.

Id. at 190-91. One inmate, Dennis Johnson, discovered thi s note and gave it to a Corrections Officer. Tevis wrote a similar letter to Damien Hild, an inmat e in Tevis’ cellblock. In that letter, Tevis asked Hild to shoot bl ue and purple paintballs at D.S.’s residence after Hild’s release from prison. Te vis further instructed Hild to: [g]et a sharpie and write [D.S.] is a lying, cheating , bipolar dope whore everywhere you go—bathrooms, walls, post on FaceB ook,J-A08035-14

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YouTube until you Google her name and it shows up. . . . Get a bag of drugs. Find someone to get [D.S.] fucked up a nd . . . [t]ake hundreds of photos of her being a dope whore a nd post them all over the Net with her full name and list A ltoona, Hollidaysburg, Duncansville as her locations.

Id. at 201. Following his release from prison, Hild turn ed Tevis’ letter over to the Hollidaysburg Borough Police. As a result of T evis’ letters and phone calls to D.S., as well as the letters that the police obtained from Hild and Johnson, Tevis was charged with intimidation of witnesse s or victims and harassment 2 on February 27, 2012. Those charges were filed and d ocketed at CP-07-CR-0000703-2012. The trial court consolidated Tevis’ two cases for a jury trial, which commenced on July 30, 2012, and ended on August 1, 201 2. At trial, D.S. essentially repeated the allegations that she made to p olice on August 24, 2011. Specifically, D.S. testified that Tevis choked he r, held a large kitchen knife to her throat, pinned her to the ground, and forcibly raped her. Tevis’ testimony at trial was at odds with D.S.’s version of th e events. Tevis testified that the August 23-24, 2011 incident began w hen D.S., who had been drinking heavily, struck him in the face three ti mes without provocation. According to Tevis, he grabbed D.S. and h eld her arms at her side to prevent her from attacking him further. Tevi s additionally testified that he had never strangled, raped, or attacked D.S. with a knife.

____________________________________________ 2 18 Pa.C.S. §§ 4952(a)(2) and 2709(a)(7), respective ly.J-A08035-14

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On August 1, 2012, the jury acquitted Tevis of rape—fo rcible compulsion, aggravated assault, and unlawful restraint. The jury found Tevis guilty of simple assault and intimidation of witn esses or victims. On November 1, 2012, Tevis was sentenced at both docket nu mbers. The trial court sentenced Tevis to six to twelve months’ imprisonmen t for simple assault, and sixty to one hundred twenty months’ impri sonment for intimidation of a witness. Imposed consecutively, Tevis’ sentences resulted in an aggregate term of five and one half to eleven years’ incarceration. On November 1, 2012, Tevis timely filed a post-sentence motion seeking a new trial in both cases. On November 13, 201 2, Tevis filed a supplemental post-sentence motion. Therein, Tevis argue d, inter alia , that the sentence imposed for intimidation of a witness was “ too harsh under the circumstances,” given that the jury acquitted Tevis of rap e. Supplemental Post-Trial Motions, 11/13/2012, at 1 (unnumbered). On February 15, 2013, the trial court denied Tevis’ post-sentence motions witho ut a hearing. On that same day, Tevis timely filed a notice of appeal. The trial court did not order Tevis to file a concise statement of errors complai ned of on appeal pursuant to Pa.R.A.P. 1925(b), nor did the trial cour t file an opinion pursuant to Pa.R.A.P. 1925(a). Tevis presents the following issues for our review:
1. Whether the trial court committed error when it senten ced Tevis for intimidation of a witness as a felony of the first degree when the underlying charges of rape and aggrav ated assault resulted in an acquittal.J-A08035-14

- 6 - a. Whether the trial court’s excessive and impermissive [ sic ] sentencing of Tevis consecutively to six to twelve months and sixty to one hundred and twenty months raises a substantial question as to the reasonableness of the sentence. b. Whether the default grading of the intimidation of witnesses or victims charge should be a misdemeanor of the second degree based on the acquittal of the underlying charges.

c. Whether the enhancement of the intimidation of witnesses or victims charge based on the sole act of charging when the facts that aggravated the grading were never submitted to the jury for determination i s a violation of the Sixth Amendment. 2. Whether the trial court gave a faulty justification i nstruction to the jury on the simple assault charge, effectively ra ising the threshold from bodily injury to serious bodily inj ury. 3. Whether there was insufficient evidence to convict on th e intimidation of a witness charge where Tevis made no ex press request for the alleged victim to change her testimony or threatened the alleged victim. Brief for Tevis at 10-11 (minor modifications for clari ty). In his first claim, Tevis’ challenges the discretionary as pects of his sentences for simple assault and intimidation of witnesses o r victims. However, because we vacate Tevis’ judgment of sentence fo r simple assault on other grounds, we need not consider the reasonablene ss of that portion of his sentence. Challenges to the discretionary aspects of sentencing ar e not reviewable as of right. Commonwealth v. Sierra , 752 A.2d 910, 912 (Pa. Super. 2000). Rather, an appellant challenging the discretionary aspects of his or her sentence must satisfy the following four-part test:J-A08035-14

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[W]e conduct a four-part analysis to determine: (1) wh ether appellant has filed a timely notice of appeal, see Pa.R.A.P. 902 and 903; (2) whether the issue was properly preserved at sentencing or in a motion to reconsider and modify sente nce, see Pa.R.Crim.P. 720; (3) whether appellant’s brief has a fatal defect, Pa.R.A.P. 2119(f); and (4) whether there is a substantial question that the sentence appealed from is not appropr iate under the Sentencing Code, 42 Pa.C.S. § 9781(b).

Commonwealth v. Evans , 901 A.2d 528, 533 (Pa. Super. 2006) (some citations omitted). To obtain review of the merits of a challenge to the discretionary aspects of his sentence, Tevis must include a Pa.R.A.P. 21 19(f) 3 statement in his brief demonstrating that he has raised a substant ial question that the sentence imposed is not appropriate under the Sentencing Code. 42 Pa.C.S. § 9781(b). A substantial question requires a showing t hat “the sentence violates either a specific provision of the sentencing schem e set forth in the Sentencing Code or a particular fundamental norm und erlying the sentencing process.” Commonwealth v. Tirado , 870 A.2d 362, 365 (Pa. Super. 2005). Our inquiry “must focus on the reasons for which the appeal is

____________________________________________ 3 In pertinent part, Rule 2119 provides: An appellant who challenges the discretionary aspects of a sentence in a criminal matter shall set forth in his brie f a concise statement of the reasons relied upon for allowance of a ppeal with respect to the discretionary aspects of a sentence. Th e statement shall immediately precede the argument on t he merits with respect to the discretionary aspects of sentence. Pa.R.A.P. 2119(f).J-A08035-14

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sought, in contrast to the facts underlying the appeal, which are necessary only to decide the appeal on the merits.” Id. Tevis has preserved this issue for our review by raising it in his November 13, 2012 post-sentence motion. Moreover, Tev is’ brief contains the necessary Rule 2119(f) statement. Accordingly, Tevis has complied with the technical requirements necessary to present a challenge to the discretionary aspects of his sentence. In his Rule 2119(f) statement, Tevis claims that the trial court failed to consider his backgr ound, low prior record score, and other mitigating factors before imposing the five to ten-year sentence for intimidation of witnesses or victims. Brie f for Tevis at 14. Tevis also alleges that the trial court was motivated by its own displeasure with the sentencing guidelines, and, as a result, issued a sentence that was inconsistent with the sentencing code. Id. A claim that the sentencing court failed to consider certa in mitigating factors generally does not present a substantial question

. Commonwealth v. Corley , 31 A.3d 293, 297 (Pa. Super. 2011). However, an allegation of bias in sentencing implicates the fundamental norms unde rlying sentencing, which presents a substantial question. Id. Accordingly, we grant Tevis’ petition for allowance of appeal and consider the meri ts of his challenge to the discretionary aspects of his sentence. Our standard of review is as follows: Sentencing is a matter vested in the sound discretion of the sentencing judge, and a sentence will not be disturbed o n appeal absent a manifest abuse of discretion. In this context, an abuseJ-A08035-14

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of discretion is not shown merely by an error in judgme nt. Rather, the appellant must establish, by reference to the record, that the sentencing court ignored or misapplied the law , exercised its judgment for reasons of partiality, prejud ice, bias or ill will, or arrived at a manifestly unreasonable decision. Commonwealth v. Shugars , 895 A.2d 1270, 1275 (Pa. Super. 2006). Additionally, our review of the discretionary aspects of a sentence is confined by the statutory mandates of 42 Pa.C.S. §§ 9781(c) an d (d). Subsection 9781(c) provides: The appellate court shall vacate the sentence and reman d the case to the sentencing court with instructions if it finds: (1) the sentencing court purported to sentence within the sentencing guidelines but applied the guidelines erroneously; (2) the sentencing court sentenced within the sentencing guidelines but the case involves circumstances where the application of the guidelines would be clearly unreasonable; or (3) the sentencing court sentenced outside the sentencing guidelines and the sentence is unreasonable. In all other cases the appellate court shall affirm the sentence imposed by the sentencing court. 42 Pa.C.S. § 9781(c). In reviewing the record, we consider the following fa ctors: (1) The nature and circumstances of the offense and the history and characteristics of the defendant. (2) The opportunity of the sentencing court to observe the defendant, including any presentence investigation. (3) The findings upon which the sentence was based. (4) The guidelines promulgated by the commission.J-A08035-14

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42 Pa.C.S. § 9781(d). Instantly, Tevis’ sentence for intimidation of witnesses o r victims falls within the standard range of our sentencing guidelines . Tevis, therefore, must demonstrate that the application of those guidelin es nonetheless clearly was unreasonable. 42 Pa. C.S. § 9781(c)(2). T o this end, Tevis argues that the trial court failed to consider his low p rior record score, background, and the fact that the jury acquitted Tevis of the predicate grading offense. Brief for Tevis at 20. We disagree. Despite Tevis’ assertions to the contrary, the sentencing court unquestionably was aware of Tevis’ background. Notes of Testimony– Sentencing (“N.T.S.”), 11/1/2012, at 7-8. The court had the benefit of a pre-sentence investigation report, and we presume that it considered all of the mitigating information contained therein. See Commonwealth v.
Devers , 546 A.2d 12 (Pa. 1988) (holding that when a senten cing court has the benefit of a pre-sentence report, we presume that the court duly considered any mitigating information contained therei n). The court also heard testimony from Tevis’ mother and from Tevis himse lf. N.T.S. at 9-15. In its sentencing order, the court observed that the of fense of intimidation of witnesses or victims “goes directly to th e heart of the integrity of the justice system.” Order of Sentence, 1 1/13/2012, at 5. The sentencing transcript also belies Tevis’ allegation that t he court failed to consider the fact that the jury had acquitted Tevis of t he predicate gradingJ-A08035-14

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offense of rape. N.T.S. at 15 (stating that the cour t was “very much aware” that the jury had acquitted Tevis of rape and aggrav ated assault). The gist of Tevis’ argument is not that the court faile d to consider the pertinent sentencing factors, but rather that the court weighed those factors in a manner inconsistent with Tevis’ desires. This is not a basis upon which we may grant relief. Accordingly, the record supports t he sentencing court’s reasoning and its decision conforms to the applicable law. The sentence imposed for Tevis’ conviction of intimidation of witnes ses or victims was within the standard range of the sentencing guideline s, and the record reflects that the court considered all of the evidence p resented at the sentencing hearing. Therefore, the sentencing court did not impose a manifestly unreasonable decision, and we discern no abuse of the court’s discretion. See Shugars , 895 A.2d at 1275. Nor can we conclude that Tevis’ standard range sentence wa s the result of the trial court’s bias. Notwithstanding the trial court’s noted disapproval of the sentencing guidelines, the court sente nced Tevis within the standard range of those guidelines. See N.T.S. at 7 (“I’m appalled by the poor judgment of the Sentencing Commission and the legislature of this Commonwealth . . . particularly with regard to the offense of [a]ssault.”). Under these circumstances, we are wholly unpersuaded that the trial court “clearly wanted to excoriate Tevis.” Brief for Tevis a t 21. Accordingly, Tevis’ bias argument, too, is meritless.J-A08035-14

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Tevis next challenges the trial court’s grading of his co nviction for intimidation of witnesses or victims as a first-degree fe lony. The proper grading of a criminal offense is an issue of statutory in terpretation and, therefore, constitutes a non-waivable challenge to the legality of a defendant’s sentence. Commonwealth v. Rossetti , 863 A.2d 1185, 1193 (Pa. Super. 2004). The interpretation of a statute presents a pure question of law, for which our standard of review is de novo and the scope of our review is plenary. Commonwealth v. Davidson , 938 A.2d 198, 203 (Pa. 2007). Subsection 4952(b), relating to the grading of intimi dation of witnesses or victims, provides as follows: (1) The offense is a felony of the degree indicated in paragraphs (2) through (4) if: (i) The actor employs force, violence or deception, or threatens to employ force or violence, upon the witness or victim or, with the requisite intent or knowledge upon any other person. (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. (iii) The actor’s conduct is in furtherance of a conspiracy to intimidate a witness or victim. (iv) The actor accepts, agrees or solicits another to accept any pecuniary or other benefit to intimidate a witne ss or victim. (v) The actor has suffered any prior conviction for any violation of this section or any predecessor law hereto, or has been convicted, under any Federal statute or statute of any other state, of an act which would be a violation of this section if committed in this State.J-A08035-14

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(2) The offense is a felony of the first degree if a felon y of the first degree or murder in the first or second degree wa s charged in the case in which the actor sought to influe nce or intimidate a witness or victim as specified in this subsection. (3) The offense is a felony of the second degree if a felon y of the second degree is the most serious offense charged in the case in which the actor sought to influence or intimi date a witness or victim as specified in this subsection. (4) The offense is a felony of the third degree in any ot her case in which the actor sought to influence or intimidate a witness or victim as specified in this subsection. (5) Otherwise the offense is a misdemeanor of the second degree. 18 Pa.C.S. § 4952(b). Applying section 4952 to the case sub judice , the Commonwealth charged Tevis with intimidation of witnesses or victims, graded as a firstdegree felony. Because Tevis initially was charged with rape, a first-degree felony, the Commonwealth charged the intimidation of witnesses or victims count as a first-degree felony pursuant to subsection 4952 (b)(2). Tevis argues that, because the jury ultimately acquitted him of rape, the trial court should have treated the offense as a second-degree misde meanor at sentencing. We disagree.
In Commonwealth v. Felder , 75 A.3d 513 (Pa. Super. 2013), Felder initially was charged with simple assault, conspiracy to co mmit simple assault, and aggravated assault. Felder also was charged with intimidation of witnesses or victims, which the Commonwealth graded as a first-degree felony based upon Felder’s underlying felony charge of aggravated assault.J-A08035-14

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A jury convicted Felder of simple assault and intimidat ion of witnesses or victims, but deadlocked on the aggravated assault charge. The Commonwealth subsequently nolle prossed the aggravated assault. On appeal, Felder contended that the trial court erre d in grading her intimidation of witnesses or victims conviction as a first-d egree felony, because the jury had had not convicted her of aggravate d assault. In rejecting that argument, we stated as follows: A first-degree felony was charged in this case , and thus the trial court properly graded Felder’s conviction for witness/vi ctim intimidation as a first-degree felony pursuant to subse ction 4952(b)(2). Felder’s alternative interpretation of this subsection would require us to insert additional language into t he statute, namely that the first-degree felony charge “continued to exist in the case at the time of sentencing.” Nothing in [sub] se ction 4952(b)(2) suggests that the legislature intended such a result. To the contrary, the statute’s focus on the most serious cr ime charged makes eminent sense, since the relevant charge is t he most serious one a criminal defendant attempted to escape by use of intimidation.

Felder , 75 A.3d at 517 (italics in original). Tevis argues that the instant matter is distinguishabl e from Felder , because Tevis was acquitted of the rape charge, whereas th e jury deadlocked with respect to Felder’s underlying felony c harge. We discern no basis to conclude that the jury’s disposition in this case should preclude or alter our determination that Felder controls this case. The plain language of section 4952 clearly states that the offense is a first-deg ree felony when “a felony of the first degree . . . was charged in the case.” 18 Pa.C.S. § 4952(b)(2) (emphasis added). As in Felder , we decline to insertJ-A08035-14

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additional language into the statute. Accordingly, Te vis’ claim that the trial court incorrectly graded his conviction for intimidatio n of witnesses or victims fails. 4 Tevis next argues that his sentence for intimidation o f witnesses or victims violates the Sixth Amendment, pursuant to the U nited States Supreme Court’s decisions in Apprendi v. New Jersey , 530 U.S. 466 (2000), and Alleyne v. United States , __ U.S. __, 133 S.Ct. 2151 (2013). Specifically, Tevis contends that subsection 4952(b)(2), which states that the offense is a first-degree felony when a first-deg ree felony has been charged in the underlying case, constitutes an element of the offense of intimidation of witnesses or victims. See 18 Pa.C.S. § 4952(b)(2) (“The offense is a felony of the first degree if a felony of the first degree . . . was charged in the case in which the actor sought to influe nce or intimidate a witness.”). Therefore, under Apprendi , the jury was required to find

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4 Tevis also argues that the General Assembly could not h ave intended to grant prosecutors the broad authority to dictate a d efendant’s sentence “merely by putting ink to paper.” Brief for Tevis a t 22. Doubtless, the mere charging of a first-degree felony could potentially in crease a defendant’s maximum allowable sentence pursuant to section 4952. Ho wever, we may not rewrite a statute under the pretext of interpret ing it. See 1 Pa.C.S. § 1921 (“When the words of a statute are clear and fre e from all ambiguity, the letter of it is not to be disregarded under the p retext of pursuing its spirit.”). Moreover, in Tevis’ case (and indeed, in th e usual course of events) the underlying felony was charged long before police charged Tevis with intimidation of witnesses or victims. Thus, Tevis’ f ear that the statute may empower prosecutors to dictate a defendant’s sentence is overstated, at least under the circumstances of this case.J-A08035-14

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beyond a reasonable doubt that the case in which Tevis sought to influence D.S. involved a first-degree felony.
In Apprendi , the United States Supreme Court held that a defend ant’s Fourteenth Amendment right to due process and Sixth A mendment right to a trial by jury require that any fact, other than a pr ior conviction, which increases the penalty for a crime beyond the prescribed st atutory maximum, must be submitted to a jury and proven beyond a reason able doubt. Apprendi , 530 U.S. at 490. In Cunningham v. California , 549 U.S. 270 (2007), the Supreme Court clarified the principles of Apprendi as follows: Our precedents make clear that the statutory maximum fo r Apprendi

purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the j ury verdict or admitted by the defendant . In other words, the relevant statutory maximum is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional finding s. When a judge inflicts punishment that the jury’s verdict alo ne does not allow, the jury has not found all the facts which the law makes essential to the punishment, and the judge exceeds his pr oper authority. Cunningham , 549 U.S. at 283 (internal citation and quotation m arks omitted, emphasis added). Turning to the case sub judice , the grading of the offense of intimidation of witnesses or victims is controlled by 18 Pa.C.S. § 4952(b), which provides in relevant part:

(2) The offense is a felony of the first degree if a felon y of the first degree or murder in the first or second degree wa s charged in the case in which the actor sought to influen ceJ-A08035-14

- 17 - or intimidate a witness or victim as specified in this subsection. * * * (3) Otherwise the offense is a misdemeanor of the second degree. 18 Pa.C.S. § 4952(b). Pursuant to subsection 4952(b)(5), the default grading of the offense of intimidation of witnesses or victims is as a second-degre e misdemeanor. 18 Pa.C.S. § 4952(b)(5). However, because the case in which Tevis sought to intimidate D.S. involved a charge of rape, the of fense was elevated to a first-degree felony pursuant to subsection 4952(b)(2). We note that the prescribed maximum sentence for a second-degree misdemeano r is two years, whereas the prescribed maximum sentence for a first -degree felony is twenty years. See 18 Pa.C.S. §§ 1103–04. Therefore, Tevis’ five to te n year sentence for intimidation of witnesses or victims wou ld have exceeded the statutory maximum sentence had the crime been grade d as a seconddegree misdemeanor. See Cunningham , supra . With regard to the elements of the offense of intimid ation of witnesses or victims, the trial court instructed the jury as foll ows: The third element involved here I’m going to bring to resolution now. The third element is that the case in which [Tevi s] is alleged to have tried to influence or intimidate [D. S.] was first or second — was a felony of the first degree. I’m instructi ng you as a matter of law that as the case has been presented by the Commonwealth it is alleged that the intimidation to ok place with regard to a felony of the first degree. Now you don ’t have to concern yourselves with whether or not that element has beenJ-A08035-14

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fulfilled here and met. It has. Your concern has to be for the other aspects of this charge of intimidation. N.T., 8/1/2012, at 45. According to Tevis, Apprendi requires the jury—as opposed to the trial judge—to find that Tevis sought to influence or intimidate D.S. with regard to a case involving a first-degree felony. Her etofore, no Pennsylvania case has addressed whether subsection 4952(b)(2) constitutes a n element of the offense of intimidation of witnesses of victims under Apprendi

. Nonetheless, even assuming, arguendo , that subsection 4952(b)(2) represents an element of the crime that the jury must find beyond a reasonable doubt, Tevis’ claim still fails. Tevis has not disputed that he was charged with rape, attrial, during his sentencing, or before this court. Nor did Tevis obj ect when the trial court instructed the jury that subsection 4952(b)(2) had been met as a matter of law. Moreover, Tevis’ attorney admitted at sentencin g that Tevis was charged with rape. N.T.S. at 15 (“I don’t need to r emind the [c]ourt that my client was acquitted of the [r]ape and [a]ggravated [a ]ssault charges.”). It is well-settled that admissions by defense attorneys consti tute admissions by his or her client. Commonwealth v. Johnson , 961 A.2d 877, 882 (Pa. Super. 2008). Because the dictates of Apprendi apply only to facts not admitted by the defendant, Tevis’ failure to challen ge the fact of his underlying rape charge, along with his counsel’s admissi on to the fact of the charge, precludes relief. Cunningham , 549 U.S. at 283 (“[T]he statutoryJ-A08035-14

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maximum for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the j ury verdict or admitted by the defendant. ”) (emphasis added); Commonwealth v. Belak , 825 A.2d 1252, 1256 (Pa. 2003) (finding no Apprendi violation where the defendant did not contest the facts underlyi ng his burglary convictions at trial or at sentencing). In his next issue, Tevis alleges that the trial court’s j ustification jury instruction incorrectly defined the Commonwealth’s burd en to disprove selfdefense. Based upon our review of the record, we agre e that the trial court’s instruction misstated the law. Accordingly, we va cate Tevis’ conviction for simple assault. Our standard of review is well-defined: [W]hen evaluating the propriety of jury instructions, this Court will look to the instructions as a whole, and not simpl y isolated portions, to determine if the instructions were improp er. We further note that[] it is an unquestionable maxim of law in this Commonwealth that a trial court has broad discretion i n phrasing its instructions, and may choose its own wording so long as the law is clearly, adequately, and accurately presented to the jury for its consideration. Only where there is an abuse of discretion or an inaccurate statement of the law is there reversible error. Commonwealth v. Kerrigan , 920 A.2d 190, 198 (Pa. Super. 2007) (citations, internal quotation marks, and brackets omit ted; emphasis added). Following closing arguments, Tevis’ requested that the trial court instruct the jury on self-defense.
The Court : Where do you think it fits, the justification?J-A08035-14

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Defense Counsel : If they believe [Tevis’] testimony that [D.S.] struck him and was attacking him and then he held her down to prevent that from happening, I think that’s justificat ion. It’s self-defense basically. The Court : That’s what I was going to say, what you’re talking about is self-defense. Defense Counsel : Yeah, I think that’s — I thought it was the same thing. N.T., 8/1/2012, at 25. After a brief recess, Tevis’ counsel provided the court w ith a copy of the standard criminal jury instruction on the use of le ss than deadly force to prevent suicide or the commission of crime. Pa. SSJI (C rim) § 9.508D (2005). Tevis requested that the court charge the jury consistently with paragraph two of that instruction, which provides as f ollows: The Commonwealth has the burden of disproving the def ense of justification. That means you cannot find the defendantguilty unless the evidence convinces you beyond a reasonable dou bt that the defendant did not reasonably believe that t he force [he] [she] used was immediately necessary to prevent [name of person attempting suicide or crime] from:

• committing suicide

• inflicting serious bodily injury upon [himself] [herself ]

• committing a crime involving or threatening bodily in jury

• committing a crime involving or threatening damage to or loss of property

• committing a crime involving or threatening a breach o f the peace

Id. (formatting modified for clarity). Tevis initially asked the trial court to instruct the jury both as to D.S. inflicting serious bo dily injury upon herselfJ-A08035-14

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and D.S. committing a crime involving or threatening bodily injury. Thereafter, the following exchange took place:
Defense Counsel : I think the Commonwealth has a problem with the first one, the inflict serious bodily injury o n herself[,] but I’m fine with the second one. District Attorney : I’ll leave it to your discretion on the second one, Your Honor. The first one I do have a problem with. Defense Counsel : I mean I think there was testimony that [Tevis] tried to prevent [D.S.] from cutting herself[ ,] but I think the main gist is that she was hitting him. The Court : Well I’ve been doing my own research while we took a break. I’m satisfied the second paragraph here certa inly is more fitting than the first. The one thing I’m wond ering about is I’m not sure — well okay. Defense Counsel : I think there actually — The Court : The unlawful restraint there’s a reference to seriou s [bodily injury] because in the other charges it’s bodily injury not serious bodily injury, but it is referenced in the unla wful restraint charge. Defense Counsel : I think really it only applies to the simple assault and the unlawful restraint. I don’t think it applies to the aggravated assault. District Attorney : It would not apply to that charge. The Court : No. Defense Counsel : It’s basically just that they believe [Tevis’] version of the events which would just be the bodily in jury. The Court : The last part of this, the committing the crime involving or threatening bodily injury, that would apply to the contention that [Tevis] was defending himself against [D .S.] Defense Counsel : Yeah. N.T., 8/1/2012, at 25.J-A08035-14

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The trial court subsequently agreed to give the charge insofar as it related to D.S. threatening Tevis with bodily injury , but refused to give the portion of the charge relating to D.S.’s attempt to inflict serious bodily injury upon herself. The court then instructed the jury as follows: Now while we’re on the subject of these charges, I wantto bring to your attention that it is the law of this Commonwe alth that the Commonwealth has the burden of disproving the def ense of justification. Thus, you cannot find [Tevis] guilty in these various charges unless the evidence convinces you beyond a reasonable doubt that [Tevis] did not reasonably belie ve that the force he used was immediately necessary to prevent [D.S.] from inflicting serious bodily injury on him. Now this is pertinent. Well let me finish this reading first. Well that take s me to the end of it. Now this particular aspect of the law per tains to the charges of bodily injury and the charge of simple assaultand in the — would it be the charge of aggravated assault?

Id. at 41 (emphasis added). The following sidebar discuss ion then occurred:
Defense Counsel : It doesn’t have to be serious bodily injury. The Court : So this is only as to the charge of simple assault? District Attorney : Simple assault and unlawful restraint. Defense Counsel : And then it only requires [] bodily injury or a crime involving bodily injury. * * * The Court : I think I said bodily injury but what I’m talking about is it pertains to the two charges of simple assault . . . and unlawful restraint.

Id. at 42. The court then continued to instruct the jury as follows: They have confirmed that my belief here is that what I just told you about the burden on the Commonwealth to disprove the defense of justification applies with regard, to the cri mes ofJ-A08035-14

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simple assault and intimidation of witnesses. Just those two charges of where this applies.

Id. at 43. Another sidebar discussion followed wherein th e Commonwealth pointed out that the court had incorrectly stated that the justification defense applies to the charge of intimidation of witne sses or victims. The court then corrected its prior statement: Now these — this particular comment that I offered to y ou about the burden of the Commonwealth applies in just two ca ses, just two charges. The one is unlawful restraint and the oth er is simple assault. Got it. Hopefully I do too, okay.

Id. at 44. Thereafter, Tevis asked the trial court to no te his objection to the use of the term “serious bodily injury” rather than “b odily injury.” Id. at 57. Tevis argues that the court’s instruction permitted the jury to reject his justification defense merely by finding that Tevis d id not reasonably believe that force was necessary to prevent serious bodily injury to himself. Brief for Tevis at 25. Stated differently, Tevis arg ues that the trial court erroneously increased the level of injury required to demonstrate selfdefense from “bodily injury” to “serious bodily injur y.” We agree. As a preliminary matter, we note that Pa. SSJI (Cri m) § 9.508D relates to cases where a defendant uses force to prevent suicide or the commission of certain classes of crimes. It is not, as both Tevis and t he trial court appear to have believed, a general self-defense instru ction. Compare Pa. SSJI (Crim) §9.501 (2005) (stating that a defendant is justified in using non-deadly force “when the actor believes that such for ce is immediatelyJ-A08035-14

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necessary for the purpose of protecting himself against t he use of unlawful force ” (emphasis added)). Nevertheless, the record demonstrat es that Tevis asked the trial court to instruct the jury that t he burden is on the Commonwealth of disprove beyond a reasonable doubt th at Tevis reasonably believed that force was immediately necessary to prevent D.S. from “committing a crime involving or threatening bodily i njury.” N.T., 8/1/2012, at 25. The trial court agreed that the evidence—specif ically, Tevis’ testimony that he used force to defend himself against D .S.—supported the
instruction. The trial court’s instruction permitted the jury to find Tevis guilty of simple assault if they found that Tevis did not reasona bly believe the use of force was immediately necessary to prevent D.S. from inf licting serious bodily injury 5 upon him. Id. at 41. However, the Commonwealth had the burden of demonstrating beyond a reasonable doubt tha t Tevis did not reasonably believe that force was necessary to prevent D. S. from committing a crime “involving or threatening bodily injury .” 18 Pa.C.S. § 508 (emphasis added). Accordingly, the trial court’s i nstruction incorrectly defined the Commonwealth’s burden.

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5 The trial court instructed the jury that “[s]erious bo dily injury means any physical injury that creates a substantial risk of de ath or that causes serious permanent disfigurement or protracted loss or imp airment of the function of any bodily member or organ.” N.T., 8/1/ 2012, at 37.J-A08035-14

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This does not end our inquiry, because, before relief may be granted, we must find that the error was not harmless. It is we ll-settled that the Commonwealth bears the burden of establishing that th e error was harmless beyond a reasonable doubt. Commonwealth v. Story , 383 A.2d 155, 162 n.11 (Pa. 1978). With respect to harmless error, we no te that: The harmless error doctrine reflects a fundamental princi ple which we think is particularly apt here, i.e. , “that the central purpose of a criminal trial is to decide the factual que stion of the defendant’s guilt or innocence, and promotes public respe ct for the criminal process by focusing on the fundamental fair ness of the trial rather than on the virtually inevitable p resence of immaterial error.” Delaware v. Van Arsdall , 475 U.S. 673, 681 (1986). If this court can conclude beyond a reasonab le doubt that the error complained of did not contribute to the verdict, no new trial is required.

Commonwealth v. Weisman , 584 A.2d 980, 985 (Pa. Super. 1990). Harmless error exists where (1) the error did not prej udice the defendant or the prejudice was de minimis ; (2) the erroneously admitted evidence was merely cumulative of other untai nted evidence which was substantially similar to the erroneousl y admitted evidence; or (3) the properly admitted and uncontradicted evidence of guilt was so overwhelming an d the prejudicial effect of the error was so insignificant by comparison that the error could not have contributed to the verd ict.

Commonwealth v. Hutchinson , 811 A.2d 556, 561 (Pa. 2002) (quoting Commonwealth v. Robinson , 721 A.2d 344, 350 (Pa. 1999)). At trial, D.S. testified that the altercation began when Tevis grabbed her by her arms to prevent her from leaving Tevis’ ap artment. Id. at 41. According to D.S., Tevis then choked her and punched her

. Id. at 42-43, 46. In contrast, Tevis testified that the incident be gan when D.S. punchedJ-A08035-14

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him in the face multiple times without provocation. N .T., 7/30/2012, at 41- 43, 46, 65. Tevis further argued that D.S.’s injurie s—specifically the bruises on her arms—were caused by Tevis’ attempts to restrain h er after she struck him. Id. at 10, 12. Finally, Tevis encouraged the jury to re ject D.S.’s testimony, which Tevis contended was implausible and in consistent. Id. at 12. The jury, in finding Tevis not guilty of rape, unlaw ful restraint, and aggravated assault, clearly accepted, at least in part, T evis’ version of the events, and rejected a large portion of D.S.’s testimon y. Moreover, based upon the evidence presented at trial, the jury undeni ably could have found that D.S. threatened Tevis with bodily injury, and t hat Tevis reasonably believed that force was necessary to protect himself. The trial court’s instruction, however, permitted the jury to convict Te vis for simple assault by finding that D.S. did not threaten Tevis with phy sical injury that posed a substantial risk of death or permanent disfigurement. See N.T., 8/1/2012, at 37. Indeed, Tevis’ entire defense was that the inci dent began when D.S. physically attacked him. Id. at 10, 12. In short, it is possible that the jury wholly accepted Tevis’ account of the events, but still co nvicted Tevis of simple assault because the jury determined that D.S. did not threaten Tevis with serious bodily injury. For us to extrapolate further from the jury’s verdict would be nothing more than pure conjecture. Furthermore, the Commonwealth has offered no argumen t that would lead us to conclude that the trial court’s erroneous self- defense instructionJ-A08035-14

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was harmless. See Story , 383 A.2d at 162, n.11 (stating that the Commonwealth bears the burden of establishing harmless error). Because we cannot conclude beyond a reasonable doubt that the se lf-defense instruction did not contribute to the guilty verdict, as to simple assault, we must vacate Tevis’ conviction for that offense. In his final issue, Tevis argues that the evidence was insu fficient to support his conviction for intimidation of witnesses or vi ctims. [O]ur applicable standard of review is whether the evi dence admitted at trial, and all reasonable inferences drawn from that evidence, when viewed in the light most favorable to the Commonwealth as verdict winner, was sufficient to enab le the factfinder to conclude that the Commonwealth establish ed all of the elements of the offense beyond a reasonable doubt. Additionally, when examining sufficiency issues, we bear in mind that: the Commonwealth’s burden may be sustained by me ans of wholly circumstantial evidence; the entire trial re cord is evaluated and all evidence received against the defend ant considered; and the trier of fact is free to believe all, part, or none of the evidence when evaluating witness credibili ty.

Commonwealth v. Crabill , 926 A.2d 488, 490-91 (Pa. Super. 2007) (internal citations omitted). The offense of intimidation of witnesses or victims is de fined, in pertinent part, as follows: (a) 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 crim inal justice, he intimidates or attempts to intimidate any witness or victim to: * * *J-A08035-14

- 28 - (2) Give any false or misleading information or testim ony relating to the commission of any crime to any law enforcement officer, prosecuting official or judge. 18 Pa.C.S. § 4952. Actual intimidation is not requir ed for a conviction; an attempt with the appropriate mens rea is sufficient. Commonwealth v. Collington , 615 A.2d 769, 770 (Pa. Super. 1992). Here, Tevis contends that the evidence is insufficient to support his conviction because the Commonwealth failed to demonstrat e that Tevis expressly threatened D.S. Brief for Tevis at 26. How ever, the evidence presented at trial revealed that Tevis mailed three letters to D.S. while he was incarcerated. In those letters, Tevis instructed D.S. to write letters to a Magisterial District Judge and an assistant district a ttorney disavowing her earlier statements to the police. N.T., 7/30/2012, at 64. D.S. also testified that Tevis’ letters made her fearful for her safety an d the safety of her son. Id. at 165. It is evident from the verdict that the jury found D. S.’s testimony credible and chose not to believe Tevis’ testimony that he did not intend to intimidate D.S. The jury, as the trier of fact, was f ree to believe all, part, or none of the testimony presented by the witnesses. Commonwealth v. Gooding , 818 A.2d 546 (Pa. Super. 2003). Moreover, at tri al the Commonwealth entered Tevis’ letters into evidence, and played recordings of the telephone conversations between Tevis and D.S. The contents and timing of Tevis’ letters and calls, together with the circumstances surrounding them, were sufficient for the jury to infe r that Tevis intended toJ-A08035-14

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intimidate D.S. to prevent her from testifying at tr ial. Therefore, Tevis’ final issue does not merit relief. For the foregoing reasons, we vacate Tevis’ judgment of sentence and remand for retrial on the charge of simple assault. Be cause the trial court imposed Tevis’ sentences for simple assault and intimidati on of witnesses or victims consecutively, our disposition has disturbed the cou rt’s overall sentencing scheme. Accordingly, we vacate Tevis’ judgmentof sentence in its entirety and remand for resentencing on the intim idation of witnesses or victims count, either after retrial on the simple assaultcount, or in a timely fashion if the Commonwealth elects not to retry Tevis for simple assault. See Commonwealth v. Williams , 997 A.2d 1205, 1210–11 (Pa. Super. 2010) (“if a correction by this Court may upset the se ntencing scheme envisioned by the trial court, the better practice is t o remand [for resentencing]”) (internal quotations, citations, and corr ections omitted). Judgment of sentence vacated. Case remanded for furthe r proceedings consistent with this memorandum. Jurisdiction relinquished. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 10/3/2014