233 A.3d 809
Pa. Super. Ct.2020Background
- Raymond approached Rodger Pickens, who had testified against Raymond’s friend (Tillman) in a murder prosecution, made statements urging Pickens to "make shit right," displayed or grabbed a firearm, and said he knew where Pickens lived. Pickens moved and later testified at Tillman’s trial.
- Prosecution also introduced two post-trial incidents (a van with men and a dead bird left at Pickens’s door); Raymond was incarcerated during those events.
- A jury convicted Raymond of Intimidation of a Witness (18 Pa.C.S. § 4952) and Retaliation Against a Witness; the trial court later entered a judgment of acquittal on the retaliation count and Raymond was sentenced to 6–12 years imprisonment for intimidation.
- The criminal information charged Raymond under § 4952(a)(1) (refraining from reporting), but the facts fit § 4952(a)(2)/(3) (inducing false testimony/withholding testimony); Raymond argued the defective information required arresting judgment.
- The trial court instructed the jury on the correct § 4952(a)(2)/(3) theories and Raymond raised no contemporaneous objection; the Superior Court found waiver and no prejudice from the information defect.
- The trial court graded the intimidation conviction as a first-degree felony solely because the underlying case Raymond sought to influence involved a first-degree murder charge; the Superior Court held that elevation to a felony requires proof of a § 4952(b)(1) predicate before considering the underlying case’s grade, vacated the sentence, and remanded to re-grade the offense as a second-degree misdemeanor.
Issues
| Issue | Plaintiff's Argument (Commonwealth) | Defendant's Argument (Raymond) | Held |
|---|---|---|---|
| 1) Whether conviction must be arrested because information charged § 4952(a)(1) while evidence established (a)(2)/(3) | Commonwealth: Raymond waived the defect by defending on the proper theory and not objecting; jury was instructed correctly; no prejudice | Raymond: Charging under (a)(1) deprived court of jurisdiction over (a)(2)/(3); conviction should be arrested | Held: Waiver; no prejudice; conviction under § 4952 stands despite information defect |
| 2) Whether intimidation conviction may be graded a 1st‑degree felony based only on the underlying murder charge without proof of a § 4952(b)(1) predicate | Commonwealth (at times inconsistent): argued underlying first‑degree charge supports felony grading; later conceded predicates in (b)(1) are required | Raymond: Felony grading requires proof that one of the (b)(1) predicates (force, benefit, conspiracy, prior conviction, etc.) is satisfied before elevating grade | Held: Statute requires a § 4952(b)(1) predicate before using the underlying case grade; trial court erred by not obtaining a finding on a predicate; sentence vacated and case remanded to re‑grade as a 2nd‑degree misdemeanor |
Key Cases Cited
- Commonwealth v. Reed, 216 A.3d 1114 (Pa. Super. 2019) (standard for sufficiency review and evaluating evidence in the light most favorable to the verdict winner)
- Commonwealth v. Ford, 141 A.3d 547 (Pa. Super. 2016) (defect in information is waived if defendant was placed on notice and defended on the correct theory)
- Commonwealth v. Felder, 75 A.3d 513 (Pa. Super. 2013) (discusses § 4952 grading framework though not dispositive on predicate issue)
- Commonwealth v. Sinclair, 897 A.2d 1218 (Pa. Super. 2006) (permitting amendment of an information when defendant was apprised of factual scenario)
- Commonwealth v. Wright, 14 A.3d 798 (Pa. 2011) (principles of statutory interpretation; use plain language to effectuate legislative intent)
- Commonwealth v. Kenney, 210 A.3d 1077 (Pa. Super. 2019) (each statutory word must be given effect; avoid rendering language surplusage)