PA Superior Court: Trial Judge Improperly Usurped Role of Jury By Deciding Gradation of Witness Intimidation Charge
Philadelphia Criminal Lawyer Zak Goldstein
The Superior Court has decided the case of Commonwealth v. Raymond, holding that the trier of fact must make a specific finding of how the defendant “intimidated” a witness before the trial court can impose an enhanced felony gradation for the charge at sentencing. The Superior Court rejected the Commonwealth’s argument that the court could decide the gradation itself in the absence of a specific ruling from the jury.
Commonwealth v. Raymond
Philadelphia police charged the defendant with intimidation of a witness, retaliation against a witness, and possession of an instrument of a crime (“PIC”) based on his interactions with the complainant. Prior to the initiation of this case, the complainant had cooperated with law enforcement officials who charged the defendant’s friend with first degree murder. At the preliminary hearing for the murder case, the complainant testified that the defendant’s friend murdered the victim in that case.
The defendant and the complainant knew each other because they had lived in the same neighborhood for years. As the complainant had agreed to testify against the defendant’s friend at his murder trial, the complainant was placed in a witness protection program and relocated to another neighborhood approximately ten to fifteen minutes away. The complainant testified that he was concerned for his safety in his former neighborhood and no longer kept in contact with friends there because he had been labeled a snitch.
Shortly before the murder trial, the complainant was outside with his wife and his daughter at his residence when the defendant approached in his vehicle. After the defendant exited the vehicle and greeted the complainant’s family, the complainant’s wife and daughter went inside the residence. While the two men were alone, the defendant told the complainant that “I know where you was at. I would have done reach out and touched you, but I wanted to give you an opportunity to make shit right.” The complainant interpreted the defendant’s statement as an effort to convince him not to testify at the murder trial. The complainant then subsequently asked the defendant to leave. The defendant then said that “I’ve been up to the prison to see [defendant’s friend]. I know everything. And you got to make this shit right.”
The complainant then went inside his residence. He watched from his window as the defendant went back to his car, grabbed a black firearm, and tucked it under his shirt. The defendant then said “what are you gonna do?” while he placed his hand on his gun. After the complainant shut his door, he heard the defendant say “I know where you’re at.” The defendant then drove away.
After the defendant drove away, he called the complainant’s cell phone and stated “I shouldn’t have came. I don’t want you to feel threatened.” The defendant then stated that he did not want to be involved as the matter was between the complainant and his friend. As a result of this incident, the complainant relocated his family again to an unspecified address, which required his daughter to change schools. The complainant testified against the defendant’s friend, and that person was convicted of murder.
After the murder trial, the complainant testified about two incidents that occurred that made him feel he was being retaliated against for his testifying against defendant’s friend. First, he saw two men in a van parked outside of his home. One of the men was the defendant’s friend from his old neighborhood. Additionally, the complainant also found a dead bird on his doorstep. This was symbolic because the defendant’s nickname was tweet. The defendant, however, was in custody during both of these incidents.
The defendant went to trial with a jury. The above testimony was presented and he was convicted of all charges with the exception of PIC. It should be noted that there was not a specific finding by the jury as to how the defendant “intimidated” the complainant. This is important because intimidation has various subsections which trigger different gradations - it can range from a misdemeanor carrying only a few years in prison to a felony for which someone can get twenty years.
After his conviction, he filed a motion for extraordinary relief arguing that there was insufficient evidence to support either of his convictions. Regarding the witness intimidation charge, the defendant was originally charged under §4952(a)(1) which, as shown below, does not fit the facts that the Commonwealth alleged. The defendant also argued that there was no evidence to show that he made a specific threat or used violence to retaliate against the complainant for testifying at his friend’s preliminary hearing and thus there was insufficient evidence to convict him of that charge. The trial court agreed that there was insufficient evidence to convict him for the retaliation against a witness charge, however it denied the defendant’s motions on the intimidation of a witness charge. At his sentencing, the defendant was sentenced to six to twelve years’ incarceration. The defendant then filed a timely post-sentence motion which was denied. He then filed a timely appeal to the Pennsylvania Superior Court.
What is an Intimidation of a Witness Charge in Pennsylvania?
The charge of intimidation of a witness is governed by 18 Pa C.S.A. § 4952. The statute provides that a person can be guilty of intimidating a witness:
if with the intent to or with the knowledge that his conduct will obstruct, impede, impair, prevent, or interfere with the administration of justice he intimidates or attempts to intimidate any witness or victim to” do any of the following:
Refrain from informing or reporting to any law enforcement officer, prosecuting official or judge concerning any information, document or thing relating to the commission of a crime.
Give any false or misleading information or testimony relating to the commission of any crime to any law enforcement officer, prosecuting official or judge.
Withhold any testimony, information, document or thing relating to the commission of a crime from any law enforcement officer, prosecuting official or judge.
Give any false or misleading information or testimony or refrain from giving any testimony, information, document or thing, relating to the commission of a crime, to an attorney representing a criminal defendant.
Elude, evade or ignore any request to appear or legal process summoning him to appear to testify or supply evidence.
Absent himself from any proceeding or investigation to which he has been legally summoned.
The penalty for being found guilty of intimidating a witness can be very severe. 18 Pa C.S.A. § 4952 (b)(1) lists how the charge of witness intimidation may be graded:
The offense is a felony of the degree indicated in paragraphs (2) through (4) if:
The actor employs force, violence or deception, or threatens to employ force or violence, upon the witness or victim or, with the requisite intent or knowledge upon any other person.
The actor offers any pecuniary or other benefit to the witness or victim or, with the requisite intent or knowledge, to any other person.
The actor's conduct is in furtherance of a conspiracy to intimidate a witness or victim.
The actor accepts, agrees or solicits another to accept any pecuniary or other benefit to intimidate a witness or victim.
The actor has suffered any prior conviction for any violation of this section or any predecessor law hereto, or has been convicted, under any Federal statute or statute of any other state, of an act which would be a violation of this section if committed in this State.
The offense is a felony of the first degree if a felony of the first degree or murder in the first or second degree was charged in the case in which the actor sought to influence or intimidate a witness or victim as specified in this subsection.
The offense is a felony of the second degree if a felony of the second degree is the most serious offense charged in the case in which the actor sought to influence or intimidate a witness or victim as specified in this subsection.
The offense is a felony of the third degree in any other case in which the actor sought to influence or intimidate a witness or victim as specified in this subsection.
Otherwise the offense is a misdemeanor of the second degree.
The statute requires the Commonwealth to prove specific things in order to obtain an enhanced sentence. If the Commonwealth wants the witness intimidation charge to be graded as a felony of the first degree, it is not sufficient to show that the underlying case was also listed as felony of the first degree or a murder, but they must also show that the defendant “intimidated” the witness in one of the enumerated ways listed in 18 Pa C.S.A. § 4952 (b)(1)(i)-(iv). In the instant case, the defendant argued that because the jury did not specifically find which way the defendant “intimidated” the witness, he was entitled to the least severe grading which is a misdemeanor of the second degree.
The Superior Court’s Decision
The Superior Court agreed with the defendant that his conviction should have been graded as a misdemeanor of the second degree. The reason is because the jury did not make a specific finding as to how the defendant “intimidated” the complainant. Per 18 Pa C.S.A. § 4952 (b)(1), a criminal defendant can only receive an enhanced grading if the trier of fact finds that the defendant “intimidated” a witness through one of those enumerated points. Because the jury did not make a specific finding of how the defendant “intimidated” the complainant, his conviction could not be upgraded to the higher grading. Therefore, the trial court should have found that it was a misdemeanor and sentenced him to a maximum of two years’ incarceration.
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