J. 

### S76020/16 2017 PA Super 90

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA

v. KAREEM OMAR VON 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, J., DUBOW, J., and STEVENS, P.J.E. OPINION BY DUBOW, J.: 

### FILED

### APRIL06, 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.

* FormerJusticespecially assigned to

### the SuperiorCourt.J. 

### S76020/16 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 

### offerto pay her notto 

### testify. His 

### girlfriend

was neverable to 

### contactthe

### 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 

### matterand agreed to a 

### stipulated waiver

### trial. The parties 

### stipulated to 

### certainfacts,which 

### theythen

### submitted tothe court. The

### trial court summarizedthe evidence

### from the stipulated facts 

### that itfound 

### 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, 

### TerroristicThreats, 

### Theft by Unlawful

### Taking, Criminal Conspiracyto 

### Commit Robbery by 

### Threat of Serious Bodily 

### Injury, and Criminal Conspiracy to 

### CommitTheft. The

### courtsentenced Evans to an 

### aggregatesentenceof40to 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).



## -2J. 

### S76020/16 

### 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 atthe 

### underlying rape

### trial in which she

### testified 

### thattheAppellant asked her to 

### offer money to the rape

### victim in exchange 

### forthe 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 

### requestof

### 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 inthe rape case notto

### testify:



## -3J. 

### S76020/16 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 

### unavailabilityfortrial. Appellantspecificallyconceded: So my hopes to accomplish during the phone call was not to 

### hurt anyone, but hoping ifyou give 

### this person some money, 

### that she 

### wouldn't show up to 

### court and put our

### family throughthis 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 onthe underlying charges.3 

### Appellant

### timely appealed. Both

### Appellant and the

### trial courtcomplied 

### 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, 

### Appellantfiled a Motion to Modify and Reconsider Sentence, in which he argued 

### that his 431/2 to 90 

### yearaggregate sentence is illegal because it 

### "constitutes a life 

### sentence." Mot. to Modify and Reconsider Sentence., 

### 11/30/15, at 2 

### (unpaginated). Appellantalso argued 

### thatthe 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 consecutivesentences." 

### Id. The 

### trial court held a hearing on 

### Appellant's Motion on 

### January 4, 

### 2016; however,Appellant

### withdrewthe motion prior tothe court's disposition. 

## -4J. 

### S76020/16 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 notthe 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 challengeto 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 ofthe 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 

### matterof law no 

### probabilityoffact may bedrawn 

### from the combined circumstances.



## -5J. 

### S76020/16 

### Commonwealth v. 

### Vogelsong, 90 A.3d 717, 719 (Pa. Super. 

### 2014) 

### (citations and 

### quotations 

### omitted). A 

### defendant is 

### guilty of 

### Intimidation ofWitnesses 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 orwhich 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 establishesthe crime ofWitness

### Intimidation.



## -6J. 

### S76020/16 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 proofof manifest

### threats is not 

### required." 

### Id. Applying 

### this general principle to a case in which the 

### defendant made

a pecuniary 

### offerto his 

### wife notto 

### testifyat his 

### aggravated assault

### trial, the Supreme Court 

### first analyzed the 

### explicit language of the Witness 

### Intimidation statute. The Supreme Court observed 

### thatthe original version ofthe Witness 

### Intimidation statute used the

### term 

### "induce." 

### Doughty, 126 A.3d at 954. The 

### legislature lateramended theWitness 

### Intimidationstatute, 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 notto 

### testify. 

### Id. at 957. Rather,

### there must be

### otherevidence 

### fromwhich the 

### fact

### -finder can 

### infer 

### intimidation, such as a 

### prior relationship between the 

### defendant and 

### victim or the manner inwhich the 

### defendant madethe pecuniary 

### offer notto 

### 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 

## -7J. 

### S76020/16 element of inducement with the element of 

### intimidation. The 

### legislature did not 

### state 

### that inducements cannot sufficeto 

### 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 

### thatthe 

### 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 

### offerto 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 pecuniaryoffer. 

### Id. Bywayof

### furtherexample, 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 

### refrainfrom 

### 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 ofthe 

### surrounding circumstances, emphasizing the close 

### relationship

4 The 

### Commonwealth charged 

### Doughty 

### with, and obtained convictions of, SimpleAssault, Harassment, and 

### Intimidation of a Witness. 

### Doughty, 126 A.2d at 952. 

## -8J. 

### S76020/16 the defendant had 

### with his

### victim, the number of

### timesthe defendant asked her notto 

### testify, and the nature ofthe underlying crime. 

### Id. at709. In the 

### instant case, it is clear, as an 

### initial 

### matter, 

### that Appellant's conversationwith 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 shewould 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 notto 

### testify: 

### It is [ ] beyond 

### argument

### that [Appellant's] conductwould have 

### intimidated his 

### victim, despite his claims 

### that such 

### intimidation was not his 

### intent. Appellantsought to 

### contact his

### victim, who he was found by a 

### jury of raping 

### multiple times at 

### shotgun- point. 

### Any

### contact

### facilitated by

### the

### victim'srapist 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 

### benefitfor his lack of 

### appreciation

### for basic human 

### sensitivities and 

### whatwould be her 

### natural reaction to his conduct. As such, the stipulated evidence is

### sufficientto

### supportAppellant'sconviction [ ]. 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." Unlikethe facts in

### Doughty, in 

### this case

### there was no evidence 

## -9J. 

### S76020/16 of a 

### history of

### violent interactions between the 

### Appellant and the

### victim and

no 

### invective conversation making the pecuniary 

### offerto 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 ofan 

### intention to 

### "induce," and notto 

### "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 theAppellant's actions and not

### from speculationaboutthe

### victim's reaction if

### contacted. Accordingly, we conclude 

### that, while the 

### factfinder may consider the nature ofthe underlying crime in

### evaluating the

### totality ofthe circumstances to 

### determinewhether the defendant intended to 

### "induce"orto 

### "intimidate" a witness from not

### testifying atthe

### trialforthe underlying crime, the nature of the underlying 

### conviction, and speculation aboutthe

### 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 ofthe 

### circumstances, there is no legal basis to

- 10 -J. 

### S76020/16 support the 

### trial court's conclusion 

### thatAppellant committed the offense of Witness

### Intimidation underthe factsofthis case. For the foregoing reasons we are constrained to reverse 

### Appellant's conviction ofthe offense 

### ofCriminal Solicitation ofWitness 

### Intimidation. Judgment of Sentencevacated. Judge Stabile

### joinsthis Opinion. PresidentJudge Emeritus Stevensfiles a Concurring Opinion. 

### Judgment Entered.

J seph D. 

### Seletyn, Prothonotary Date: 

### 4/6/2017