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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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