Pa Superior Court Finds Merely Paying Witness Not to Testify Does Not Qualify as Witness Intimidation
Witness Intimidation Charges in Pennsylvania
Witness intimidation is a significant problem in criminal court and in Philadelphia specifically. Potential witnesses in criminal cases are often afraid that they could be threatened or harmed for testifying against someone, and that includes witnesses for both the prosecution and defense. For this reason, witness intimidation may be punished very severely upon conviction.
Under Pennsylvania law, 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).
Does paying a witness not to testify count as witness intimidation?
Given the broad language of the statute, an issue arises when the defendant attempts to pay a witness not to show up to court but the offer of payment is not accompanied by any threats. In Commonwealth v. Evans, the Pennsylvania Superior Court held that a defendant may not be convicted of Witness Intimidation solely for offering to pay or paying a witness not to testify. Instead, there must be some evidence in the record beyond mere speculation that the defendant intended to intimidate the witness. In other words, the offer to pay must at least contain an implied threat that if the witness does not accept the money, there could be consequences.
In Evans, the Appellant was charged with rape and related offenses. While he was incarcerated pending trial, he asked his girlfriend to contact the complainant and offer to pay her not to testify. His girlfriend attempted to call the complainant a number of times, but she was never successful in reaching her. The Commonwealth found out about the Appellant’s activities (likely because prison phone calls are recorded!), and they charged him with Intimidation, Conspiracy, and Solicitation to Commit Witness Intimidation. Following a stipulated bench trial, Appellant was convicted of Solicitation to Commit Witness Intimidation and sentenced to 3.5-10 years consecutive to the 40-80 years he received when he was eventually convicted in the Rape case. Additionally, Appellant’s attempt to pay the complainant was used against him as evidence of a guilty conscience in the Rape trial.
On appeal, the Superior Court reversed Evans’ conviction for Solicitation to Commit Witness Intimidation. The Superior Court noted that in order for the conviction to be upheld, the evidence would have had to show that Evans solicited someone else to commit the crime of Witness Intimidation. 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).
The Superior Court reversed Evans’ conviction for Solicitation because there was no evidence in the record from which the trial judge could have concluded that Evans intended to do anything other than have his girlfriend pay the complainant not to testify. Although he had clearly solicited his girlfriend to do something, he had not solicited her to commit the specific crime of witness intimidation because there was nothing intimidating about the mere offer of money.
Under certain circumstances, there may be other evidence in the record to suggest that an offer of money may amount to witness intimidation. For example, in the case of Commonwealth v. Doughty, the Pennsylvania Supreme Court upheld a witness intimidation conviction that stemmed from a defendant’s offer to pay his wife not to testify where there was other evidence that the defendant intimidated the wife. In that case, the defendant had a history of threatening his wife with violence and had also expressed strong invective when he made the offer to pay. Therefore, the jury could properly convict the defendant of witness intimidation.
In Evans, however, the Appellant had not done anything other than ask his girlfriend to offer money to the complainant. Therefore, it was complete speculation for the trial judge to conclude that the complainant would be intimidated based solely on the nature of the allegations in the rape case. The Superior Court noted that there was no evidence of a history of violent interactions between the Appellant and the victim and no invective conversation making the pecuniary offer to the victim. Instead, the only evidence was Appellant’s request that his girlfriend offer money. Because the word “intimidate” involves some sort of attempt to cause fear, simply offering money does not qualify as intimidation, and the Superior Court reversed Evans’ conviction.
Although Evans will receive a slight reduction in his overall sentence due to the technical elements of the Witness Intimidation statute, we must caution that it is still not a good idea to offer to pay witnesses not to show up. There are likely other charges which the Commonwealth could bring in this type of situation but had overlooked in this case, and the attempt to pay would constitute extremely damaging evidence of a consciousness of guilt at trial. However, it is clear from the court’s opinion that simply offering to pay someone not to come to court does not meet the elements of Pennsylvania’s Witness Intimidation statute.
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