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### -S76020-16 2017 PA Super 90 COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF PENNSYLVANIA
v.
KAREEM OMARVON EVANS 

### Appellant : No. 383 EDA 2016 Appeal 

### fromtheJudgment ofSentence November 20, 2015 In theCourt ofCommon 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 BYSTEVENS, P.J.E.: 

### FILED

### APRIL06, 2017 I would find 

### Appellant'sconduct 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 effectthe 

### offer would have had. But 

### for the

* FormerJusticespecially assigned to

### the SuperiorCourt.J

### -S76020-16

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

### thatAppellant

### attemptedto 

### intimidate her. "A person 

### commits an 

### attemptwhen, with 

### intentto 

### commita specificcrime, 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 

### intentionallywith respectto 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

### -jurytrial, 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 

### thatone would 

### commit such a crime. And you

### justtold me

### whyyou did 

### this and 

### I've accepted 

### what you

### just told 

### me." N.T. 

### 11/20/15 at 27.

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### -S76020-16 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 ofthe 

### offer and the related consequences 

### thatAppellant 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 

### ofappreciation 

### for basic human 

### sensitivities and what wouldbe

### [his victim's]naturalreaction 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 constrainedtovacate

### judgmentofsentence. 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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### -S76020-16 

### "[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 underthe

### 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 lookor posture can

. . . 

### intimidate beyond 

### question."). 

### It is 

### axiomatic, moreover, 

### that we consider the evidence in 

### this regard in the 

### light mostfavorable to the Commonwealth as 

### verdictwinner. 

### 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

### firsttimeAppellantmetthe

### victim, he and his 

### cohortsubjected 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

### attemptto 

### contact her a second 

### time may reasonably beviewed 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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### -S76020-16

conclude 

### that the 

### totality of circumstances allowed 

### for the reasonable inference 

### that it was, indeed, 

### Appellant's conscious 

### object-his 

### intent-to engage in conductof 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

### thatAppellant did not intend to 

### intimidate.



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