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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, J., DUBOW, J., and STEVENS, P.J.E. 

OPINION BY DUBOW, J.: FILED APRIL 06, 2017 

Appellant, Kareem Omar Von Evans, appeals from the Judgment of 

Sentence entered in the Bucks County Court of Common Pleas following his 

conviction of Criminal Solicitation of Witness Intimidation. After careful 

review of the facts of the case and current case law, we conclude that the 

Commonwealth's evidence is insufficient to demonstrate that the Appellant 

intended to "intimidate" the victim not to testify at the underlying trial. 

Rather, the evidence demonstrates that Appellant merely intended to 

"induce" the victim not to testify. Therefore, we are constrained to reverse 

Appellant's conviction of Criminal Solicitation of Witness Intimidation and 

vacate his Judgment of Sentence. 

* Former Justice specially assigned to the Superior Court. 
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This matter arises from Appellant's telephone and in -person 

conversations with his girlfriend while incarcerated and awaiting trial in a 

rape case.' In those conversations, Appellant asked his girlfriend to contact 

the victim in the rape case and offer to pay her not to testify. His girlfriend 

was never able to contact the victim. 

After obtaining the evidence of these conversations, the 

Commonwealth charged Appellant with one count each of Criminal 

Solicitation to Intimidate a Witness, Conspiracy to Commit Criminal 

Solicitation, and Witness Intimidation. 

On March 16, 2015, Appellant waived his right to a jury trial in the 

instant matter and agreed to a stipulated waiver trial. The parties stipulated 

to certain facts, which they then submitted to the court. 

The trial court summarized the evidence from the stipulated facts that 

it found relevant as follows: 

The stipulated facts indicate that Appellant called Kalesha 

Cruz on multiple occasions between August 13, 2014 and 

September 25, 2014 to encourage her to contact the 

complaining witness in his underlying rape case so as to 

' On March 3, 2015, a jury convicted Appellant of Rape by Threat of Forcible 

Compulsion, Involuntary Deviate Sexual Intercourse by Threat of Forcible 

Compulsion, Robbery by Threat of Serious Bodily Injury, Robbery by Force, 

Terroristic Threats, Theft by Unlawful Taking, Criminal Conspiracy to Commit 

Robbery by Threat of Serious Bodily Injury, and Criminal Conspiracy to 

Commit Theft. The court sentenced Evans to an aggregate sentence of 40 to 

80 years' incarceration. This Court affirmed Appellant's Judgment of 

Sentence. See Commonwealth v. Evans, No. 2475 EDA 2015 (Pa. Super. 

November 21, 2016) (unpublished memorandum). 

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attempt to give her money in exchange for no longer 

appearing at judicial proceedings in his case. Appellant 

further discussed the possibility of Ms. Cruz contacting the 

victim during face-to-face visits that she made to the 

Bucks County Correctional Facility on various occasions 

during that same time. 

Trial Ct. Op., 5/13/16, at 7. 

The trial court also summarized the testimony of the Appellant's 

girlfriend at the underlying rape trial in which she testified that the Appellant 

asked her to offer money to the rape victim in exchange for the rape victim 

not testifying: 

At Appellant's rape trial, Ms. Cruz confirmed the fact that 

Appellant instructed her to attempt to locate the victim so 

as to give her financial compensation in exchange for not 

testifying against Appellant. Ms. Cruz was further able to 

identify the above -referenced conversations between her 

and Appellant during which Appellant discussed his plan. 

Ms. Cruz detailed that she received information from 

Appellant's family concerning the name of the victim, and 

she was sent screenshots of the victim's [B]ackpage 

account. After receiving the images, Ms. Cruz called the 

victim's phone number three (3) times from her cell phone 

and three (3) times from a pay phone, but only heard a 

sound resembling a fax machine in each instance. 

Additionally, Ms. Cruz identified phone conversations with 

Appellant where they would discuss her progress in 

attempting to contact the victim. Ms. Cruz reiterated that 

the reason she attempted to contact the victim was at the 

request of Appellant. 

Id. 

The trial court also summarized the testimony of Appellant who 

admitted at his rape trial that he talked to his girlfriend about paying the 

victim in the rape case not to testify: 

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While testifying at trial, Appellant admitted to making the 

above -referenced phone calls to Ms. Cruz where he 

discussed attempting to contact the victim in his 

underlying rape trial. Similarly, Appellant disclosed that 

his intention was to pay the victim to secure her 

unavailability for trial. Appellant specifically conceded: 

So my hopes to accomplish during the phone call 

was not to hurt anyone, but hoping if you give this 

person some money, that she wouldn't show up to 

court and put our family through this stress and this 

terrible incident to be accused of . . . . So I hoped 

that if I could give her the money, that all of this 

could go away. 

Id. at 8. 

Based on this evidence, the trial court found Appellant guilty of 

Criminal Solicitation to Intimidate a Witness.2 On November 20, 2015, the 

court sentenced Appellant to a term of 31/2 to 10 years' incarceration, which 

was to run consecutively to the 40 to 80 year sentence imposed after his 

conviction on the underlying charges.3 

Appellant timely appealed. Both Appellant and the trial court complied 

with Pa.R.A.P. 1925. 

2 18 Pa.C.S. § 902(a); 18 Pa.C.S. § 4952(a)(6), respectively. 

3 On November 30, 2015, Appellant filed a Motion to Modify and Reconsider 

Sentence, in which he argued that his 431/2 to 90 year aggregate sentence is 

illegal because it "constitutes a life sentence." Mot. to Modify and 

Reconsider Sentence., 11/30/15, at 2 (unpaginated). Appellant also argued 

that the court's imposition in this matter of a sentence that runs consecutive 

to the sentence in the underlying matter, rather than concurrently with that 

sentence, "was unduly harsh considering the nature of the crime and the 

length of imprisonment resulting from the consecutive sentences." Id. The 

trial court held a hearing on Appellant's Motion on January 4, 2016; 

however, Appellant withdrew the motion prior to the court's disposition. 

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Appellant raises one issue on appeal in which he challenges the 

sufficiency of the Commonwealth's evidence in support of his conviction for 

witness intimidation. Appellant's Brief at 4. Relying on the holding in 

Commonwealth v. Doughty, 126 A.3d 951 (Pa. 2015), Appellant 

specifically argues that since the Commonwealth's evidence was limited to 

an offer of money not to testify in the underlying rape case, the 

Commonwealth failed to prove "intimidation" under the relevant statute. 

Appellant's Brief at 12. Appellant concludes that as a result, the trial court 

based its conclusion that Appellant intimidated or attempted to intimidate 

the victim on speculation and not the facts of record. Id. at 13. 

In reviewing the sufficiency of the evidence, our standard of review is 

as follows: 

The standard of review for a challenge to the sufficiency of 

the evidence is to determine whether, when viewed in a 

light most favorable to the verdict winner, the evidence at 

trial and all reasonable inferences therefrom is sufficient 

for the trier of fact to find that each element of the crimes 

charged is established beyond a reasonable doubt. The 

Commonwealth may sustain its burden of proving every 

element beyond a reasonable doubt by means of wholly 

circumstantial evidence. 

The facts and circumstances established by the 

Commonwealth need not preclude every possibility of 

innocence. Any doubt raised as to the accused's guilt is to 

be resolved by the fact -finder. As an appellate court, we 

do not assess credibility nor do we assign weight to any of 

the testimony of record. Therefore, we will not disturb the 

verdict unless the evidence is so weak and inconclusive 

that as a matter of law no probability of fact may be drawn 

from the combined circumstances. 

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Commonwealth v. Vogelsong, 90 A.3d 717, 719 (Pa. Super. 2014) 

(citations and quotations omitted). 

A defendant is guilty of Intimidation of Witnesses 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 . . . [a]bsent 

himself from any proceeding or investigation to which he has been legally 

summoned." 18 Pa.C.S. § 4952(a)(6). 

Pursuant to 18 Pa.C.S. § 902, a defendant is guilty of Criminal 

Solicitation to commit a crime if: 

with the intent of promoting or facilitating its commission 

he commands, encourages or requests another person to 

engage in specific conduct which would constitute such 

crime or an attempt to commit such crime or which would 

establish his complicity in its commission or attempted 

commission. 

18 Pa.C.S. § 902(a). 

As an initial matter, it is clear that Appellant's conversations with his 

girlfriend demonstrated that he requested "another person to engage in 

specific conduct." See id. The question before us, however, is whether 

those acts constitute "an attempt to commit such crime." See id. In other 

words, we must determine whether Appellant's request to his girlfriend to 

make a pecuniary offer to the victim not to testify at the underlying rape 

case establishes the crime of Witness Intimidation. 

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In Doughty, supra, our Supreme Court addressed the elements the 

Commonwealth must establish to prove witness intimidation when the 

defendant makes a pecuniary offer to a witness not to testify. As a general 

matter, the Supreme Court held that whether "an offer of a pecuniary or 

other benefit contains sufficient indicia of intimidation is be determined by 

the fact[ -]finder and assessed under the totality of the circumstances, 

cognizant that proof of manifest threats is not required." Id. 

Applying this general principle to a case in which the defendant made 

a pecuniary offer to his wife not to testify at his aggravated assault trial, the 

Supreme Court first analyzed the explicit language of the Witness 

Intimidation statute. The Supreme Court observed that the original version 

of the Witness Intimidation statute used the term "induce." Doughty, 126 

A.3d at 954. The legislature later amended the Witness Intimidation statute, 

replacing the term "induce" with "intimidates." Id. at 953-54. 

The Doughty Court, thus, concluded that the fact -finder cannot infer 

"intimidation" from the mere offer of a pecuniary benefit not to testify. Id. 

at 957. Rather, there must be other evidence from which the fact -finder can 

infer intimidation, such as a prior relationship between the defendant and 

victim or the manner in which the defendant made the pecuniary offer not to 

testify: 

Where [Commonwealth v.]Brackbill[, 555 A.2d 82 (Pa. 

1989)] goes awry is in suggesting a pecuniary benefit, in 

and of itself, comprises intimidation. Such an inducement 

may or may not intimidate, but the legislature replaced the 

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element of inducement with the element of intimidation. 

The legislature did not state that inducements cannot 

suffice to constitute intimidation; it said the opposite. 

Id. 

Applying this principle to the facts of Doughty,4 the Supreme Court 

held that the jury properly inferred the defendant's intent to "intimidate" 

from other contact that the defendant had with the victim. Id. at 958. In 

particular, the defendant had a history of threatening his wife with severe 

bodily injury and expressed strong invective when he made the pecuniary 

offer to his wife not to testify. Id. Thus, these additional contacts between 

the defendant and his wife were sufficient to infer an "intent to intimidate" 

from the pecuniary offer. Id. 

By way of further example, in Commonwealth v. Lynch, 72 A.3d 706 

(Pa Super. 2013), this Court sitting en banc, affirmed a 6 to 12 year 

Judgment of Sentence following the defendant's conviction of Intimidation of 

a Witness. In Lynch, the trial court concluded that the Commonwealth 

presented sufficient evidence of the defendant's intent to intimidate his 

girlfriend, who was also the mother of his children, to refrain from testifying 

against him at his trial for assaulting her. Id. at 711-12. The court 

specifically inferred the defendant's manifest intent to intimidate from the 

totality of the surrounding circumstances, emphasizing the close relationship 

4 The Commonwealth charged Doughty with, and obtained convictions of, 

Simple Assault, Harassment, and Intimidation of a Witness. Doughty, 126 

A.2d at 952. 

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the defendant had with his victim, the number of times the defendant asked 

her not to testify, and the nature of the underlying crime. Id. at 709. 

In the instant case, it is clear, as an initial matter, that Appellant's 

conversation with his girlfriend to offer a pecuniary benefit to the victim not 

to testify demonstrated Appellant's intent to "induce" the victim not to 

testify. The next question is whether there are other facts from which the 

fact -finder could infer that Appellant intended to "intimidate" the victim so 

that she would not testify. 

The trial court inferred Appellant's "intent to intimidate" from the 

nature of the underlying crime and its speculation about the victim's 

response to a pecuniary offer not to testify: 

It is [ ] beyond argument that [Appellant's] conduct would have 

intimidated his victim, despite his claims that such intimidation 

was not his intent. Appellant sought to contact his victim, who 

he was found by a jury of raping multiple times at shotgun - point. Any contact facilitated by the victim's rapist urging 

her not to appear for judicial proceedings would 

undeniably intimidate her, or any reasonable person for 

that matter. 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 

her natural reaction to his conduct. As such, the stipulated 

evidence is sufficient to support Appellant's conviction [ ]. 

Trial Ct. Op. at 9 (emphasis added). 

Although we are horrified by the brutality of Appellant's actions in the 

underlying crime, we do not agree that the contact during the underlying 

crime alone is sufficient to establish that Appellant had the "intent to 

intimidate." Unlike the facts in Doughty, in this case there was no evidence 

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of a history of violent interactions between the Appellant and the victim and 

no invective conversation making the pecuniary offer to the victim. Rather, 

the Commonwealth's only evidence was a conversation between the 

Appellant and a third party to make a pecuniary offer. We conclude that 

this, without more, is evidence merely of an intention to "induce," and not to 

"intimidate" a witness from not testifying. 

The trial court focused on the impact that the potential offer of a 

pecuniary benefit could have on the victim. The court cannot, however, 

establish Appellant's intent from its speculation about the victim's response 

to such an offer, had it been made. Rather, the correct legal analysis is on 

the intent of Appellant, which the fact -finder must be able to reasonably 

infer from the Appellant's actions and not from speculation about the victim's 

reaction if contacted. 

Accordingly, we conclude that, while the factfinder may consider the 

nature of the underlying crime in evaluating the totality of the circumstances 

to determine whether the defendant intended to "induce" or to "intimidate" a 

witness from not testifying at the trial for the underlying crime, the nature of 

the underlying conviction, and speculation about the victim's response to an 

offer, without more, is insufficient to establish that a defendant intended to 

"intimidate" a witness and sustain a conviction of Witness Intimidation. 

Thus, evaluating the totality of the circumstances, there is no legal basis to 

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support the trial court's conclusion that Appellant committed the offense of 

Witness Intimidation under the facts of this case. 

For the foregoing reasons we are constrained to reverse Appellant's 

conviction of the offense of Criminal Solicitation of Witness Intimidation. 

Judgment of Sentence vacated. 

Judge Stabile joins this Opinion. 

President Judge Emeritus Stevens files a Concurring Opinion. 

Judgment Entered. 

J seph D. Seletyn, 

Prothonotary 

Date: 4/6/2017