COMMONWEALTH OF PENNSYLVANIA v. DUWAYNE A. DIXON, JR.
No. 30 WAP 2020
DECIDED: AUGUST 6, 2021
[J-45-2021]
BAER, C.J., SAYLOR, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.
Appeal from the Order of the Superior Court entered 5/20/20 at No. 1203 WDA 2019 affirming in part and vacating in part the order of the Court of Common Pleas of Allegheny County entered on 8/2/19 at No. CP-02-CR-0016492-2008. SUBMITTED: April 21, 2021
OPINION
JUSTICE SAYLOR
In this matter the trial court instructed the jury, prior to deliberations, that one of the prerequisites necessary to establish the crime of witness intimidation as a first-degree felony had been fulfilled. We allowed appeal to consider whether that instruction violated the defendant‘s right to a jury trial under the Sixth Amendment to the United States Constitution as interpreted in Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000).
While the victim, Andre Ripley, was at a public park in Wilkinsburg, Allegheny County, Joshua Evans attempted to rob him at gunpoint. Ripley fled, at which point Evans opened fire. Three rounds struck Ripley, and another struck a three-month-old infant. Both victims survived and Ripley eventually identified Evans, who was the leader of a gang called the J-Town Soldiers, as the shooter. Evans was arrested and charged with a variety of offenses. Ripley was set to be the Commonwealth‘s lead witness at Evans’ trial.
Two weeks before the trial was scheduled to begin, Ripley was outside his home when he was shot a second time. Although he was shot in the head, he again survived. After an investigation, the police concluded that Appellant – who also belonged to the J-Town Soldiers – was the shooter, and that he shot Ripley at Evans’ behest to prevent Ripley from testifying at Evans’ upcoming trial. Appellant was arrested and charged with, inter alia, aggravated assault, attempted homicide, criminal conspiracy, and witness intimidation. The latter charge is the one at issue in this appeal.
By way of brief background, Chapter 49(B) of the Crimes Code defines certain offenses aimed at protecting various persons involved in the administration of justice, including prosecutors, judicial officials, witnesses, and victims of crime. See
(a) Offense defined.--A person commits an offense 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:
* * *
(5) Elude, evade or ignore any request to appear or legal process summoning him to appear to testify or supply evidence.
(6) Absent himself from any proceeding or investigation to which he has been legally summoned.
If no aggravating factors are present, the offense is graded as a second-degree misdemeanor. If, however, there are aggravating
(b) Grading.--
(1) The offense is a felony of the degree indicated in paragraphs (2) through (4) if: (i) 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. . . . (iii) The actor‘s conduct is in furtherance of a conspiracy to intimidate a witness or victim. . . .
(2) 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.
(3) 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.
(4) 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.
(5) Otherwise the offense is a misdemeanor of the second degree.
Thus, where one or more of the aggravating factors listed in paragraph (b)(1) is present, the offense is, by default, graded as a third-degree felony. See
It may be observed, moreover, that these different gradings of the offense in fact define distinct offenses so long as the maximum punishment that can be imposed goes up as the grading increases. See, e.g., Alleyne v. United States, 570 U.S. 99, 114-15, 133 S. Ct. 2151, 2162 (2013) (“When a finding of fact alters the legally prescribed punishment so as to aggravate it, the fact necessarily forms a constituent part of a new offense and must be submitted to the jury.“); accord Apprendi, 530 U.S. at 500, 120 S. Ct. at 2369 (Thomas, J., concurring) (expressing that, if a legislature “defines some core crime and then provides for increasing the punishment of that crime upon a finding of some aggravating fact – of whatever sort, including the fact of a prior conviction – the core crime and the aggravating fact together constitute an aggravated crime, just as much as grand larceny is an aggravated form of petit larceny“). See generally Commonwealth v. Kearns, 907 A.2d 649, 655-56 (Pa. Super. 2006) (elaborating further upon this precept).
Appellant proceeded to a jury trial on the above-mentioned charges. At trial, and
The third crime the defendant is accused of committing is intimidation of a witness or victim. To find him guilty, you must find that each of the following elements has been proven beyond a reasonable doubt.
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First, the defendant intimidated or attempted to intimidate by threat or by violence a witness or victim into withholding testimony or information relating to the commission of a crime from a law enforcement officer, prosecuting official or judge. Eluding, evading or ignoring a request to appear or legal process summoning him to appear to testify or supply evidence. Or absenting himself from any proceeding to which he has been legally summoned.
And second, that the defendant did so with the intent to or with the knowledge that his conduct would obstruct, impede, impair, prevent or interfere with the administration of criminal justice.
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Third, that the defendant used force, violence or deception or threats to employ force or violence upon the witness or victim or, with the intent or knowledge to intimidate a witness or victim, uses [sic] force, violence or deception or threatens force or violence upon any other person. Or acted in furtherance of a conspiracy to intimidate a witness or victims [sic] with planning, covering up or shooting Andre Ripley.
Third [sic], that the case in which the actor sought to influence or intimidate a witness or victim was first or second degree murder or a felony of the first degree. I instruct you that the crime is a felony of the first degree.
N.T., Jan. 15, 2013, at 603-05 (emphasis added).
The jury found Appellant guilty on all charges, including witness intimidation. Although the verdict slip returned by the jury was a general one that did not specify the grading of each offense, the sentencing order reflects a first-degree-felony grading. As well, the sentence itself – six-to-twelve years’ imprisonment – falls within the statutory range for a first-degree felony and outside the range for a second-degree felony. See
After Appellant‘s judgment of sentence was affirmed on direct appeal, he filed a counseled, amended petition under the
Put differently, Appellant took the position that the prerequisite reflected in paragraph 4952(b)(2) – that a first-degree felony or first- or second-degree murder was charged in the case the actor sought to influence – constituted an element of the first-degree-felony-graded offense which had to be found by the jury upon proof beyond a reasonable doubt. He continued that, by directing a finding on this element, the trial court invaded the jury‘s province and violated his right to a trial by jury as guaranteed by the Sixth Amendment. See Amended PCRA Petition, Feb. 4, 2019, at ¶¶21, 24-30.
Finally, Appellant argued he was entitled to relief under the PCRA because his Apprendi claim had arguable merit, he was prejudiced by receiving a higher sentence than he otherwise would have, and there was no strategic basis for trial counsel‘s failure to challenge the jury charge. See id. at ¶¶31-39.
The PCRA court rejected Appellant‘s claim. Relying on Commonwealth v. Felder, 75 A.3d 513 (Pa. Super. 2013), the court held that paragraph 4952(b)(2) did not constitute an element of the witness-intimidation offense under Apprendi. See Commonwealth v. Dixon, No. CP-02-CR-16492-2008, slip op. at 4-5 (C.P. Allegheny Oct. 7, 2019) (citing Felder, 75 A.3d at 514). Because Appellant was charged with other first-degree felonies in the same case, the court concluded that, as in Felder, the witness-intimidation charge was properly graded as a first-degree felony. See id. at 4.4
In a non-precedential opinion, a three-judge panel of the Superior Court affirmed in all relevant respects. See Commonwealth v. Dixon, No. 1203 WDA 2019, 2020 WL 2554617 (Pa. Super. May 20, 2020). The panel, also relying on Felder, reasoned that, rather than setting forth an element of the offense, paragraph 4952(b)(2) is a mechanical grading provision that automatically enhances witness intimidation to a first-degree felony whenever a defendant is charged with another first-degree felony in the same case. See id. at *6 & n.6 (citing Felder, 75 A.3d at 515). Thus, since Appellant
We allowed further appeal to consider whether paragraph 4952(b)(2) is a mere grading provision relative to the offense of witness intimidation or, as Appellant argues, an element of the first-degree-felony-graded offense under Apprendi and its progeny. See Commonwealth v. Dixon, ___ Pa. ___, 241 A.3d 1092 (2020) (per curiam). This is a pure question of law as to which our review is de novo and plenary. See, e.g., Commonwealth v. Bullock, 590 Pa. 480, 487, 913 A.2d 207, 212 (2006).
The Sixth Amendment provides, among other things, that in the context of a criminal prosecution the accused is entitled to a trial by an impartial jury. See
Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.
Apprendi, 530 U.S. at 490, 120 S. Ct. at 2362-63. The Supreme Court has repeatedly reaffirmed that holding. See Alleyne, 570 U.S. at 108, 133 S. Ct. at 2158; S. Union Co. v. United States, 567 U.S. 343, 348, 132 S. Ct. 2344, 2350 (2012); Cunningham v. California, 549 U.S. 270, 281, 127 S. Ct. 856, 863-64 (2007); United States v. Booker, 543 U.S. 220, 244, 125 S. Ct. 738, 756 (2005); Blakely v. Washington, 542 U.S. 296, 301, 124 S. Ct. 2531 (2004); Ring v. Arizona, 536 U.S. 584, 609, 122 S. Ct. 2428, 2443 (2002).
In the terminology used by the Apprendi line of cases, and as noted, a fact other than a prior conviction which increases the punishment beyond the otherwise-imposable statutory maximum comprises an element of a distinct, higher-graded offense. Any finding of such fact which is not conceded by the defendant must be made by the jury upon proof beyond a reasonable doubt. See, e.g., Alleyne, 570 U.S. at 114-15, 133 S. Ct. at 2162; Apprendi, 530 U.S. at 483 n.10, 120 S. Ct. at 2359 n.10; Cunningham, 549 U.S. at 275, 127 S. Ct. at 860; S. Union, 567 U.S. at 348, 132 S. Ct. 2350.
In view of the above, we consider whether paragraph 4952(b)(2) relates to a factual finding which increases the sentence for the witness intimidation offense beyond the otherwise-imposable statutory maximum. It undoubtedly relates to a factual finding, namely, that “a felony of the first degree or murder in the first or second degree was charged in the case in which
The Commonwealth does not deny that the (b)(2) factor was not conceded by Appellant. Its position is that Apprendi is not implicated here because it was clear that Appellant was charged with other first-degree felonies in this case, and although this was, in some sense, a “fact,” it was not a fact in the traditional sense that had to be found by the jury; rather, it proceeded directly from the charges lodged against Appellant. See Brief for Appellee at 14 (“It was not for the jury to decide whether a first-degree felony was charged in the case; that was a stated fact that the trial court properly instructed the jury of.“).
The Commonwealth‘s position rests on a misreading of Felder, and, more broadly, a misinterpretation of the text of paragraph (b)(2). In Felder the Superior Court indicated that Subsection 4952(b) provides a “clear roadmap for the grading of witness/victim intimidation offenses. If ‘a felony of the first degree . . . was charged in the case,’ then the offense of witness/victim intimidation is graded as a first-degree felony.” Felder, 75 A.3d at 516 (quoting
The salient point is that “the case” referred to in paragraph 4952(b)(2) does not always mean the present prosecution. Here, “the case” Appellant sought to influence was that of Evans. Thus, to establish the (b)(2) predicate, the Commonwealth had to introduce proofs showing that in Evans’ case a first-degree felony or murder in the first or second degree had been charged. Consequently, it is immaterial that other first-degree felonies were charged in this case.
The question becomes, then, whether the fact which the trial court instructed the jury to find increased Appellant‘s punishment beyond the otherwise-imposable statutory limit. In many Apprendi-based appeals, determining the otherwise-imposable maximum is relatively straightforward, as it involves ascertaining the highest sentence authorized by the conviction alone. This is because, in such matters, the government obtains a conviction based on a jury verdict or a guilty plea, and then the sentencing court holds a separate hearing to inquire into the existence of certain additional facts which augment the penalty. See, e.g., Cunningham, 549 U.S. at 275, 127 S. Ct. at 860 (noting that, under California‘s statutory scheme, the jury‘s verdict alone mandated a 12-year prison term, whereas additional facts found by the judge by a preponderance of the evidence triggered a 16-year term); Blakely, 542 U.S. at 298, 124 S. Ct. at 2534 (recounting that the defendant entered a guilty plea to kidnapping, and this was followed by a judicial finding that the defendant had acted with deliberate cruelty, pursuant to which the defendant was sentenced
The inquiry is complicated in the present controversy because the verdict subsumed facts found independently by the jurors as well as the paragraph (b)(2) factor which trial judge affirmatively instructed them to find. Thus, to determine the otherwise-imposable statutory maximum in this case, we review the verdict slip and instructions as a whole to establish the level of culpability the jury found beyond a reasonable doubt separate and apart from the challenged facet of the jury instructions. We then ascertain the maximum sentence that would have been imposable at that level of culpability.
The verdict slip is not particularly illuminating; it simply reflects, without elaboration, that the jury found Appellant guilty of witness intimidation. Still, we can discern from this, together with the portion of the jury charge which is not in dispute, that the jury independently found Appellant guilty of witness intimidation at some grading. As explained, Appellant argues that he should have been sentenced at the second-degree-misdemeanor level. See supra note 3. Thus, he agrees that the prerequisites listed in Subsection 4952(a) were independently found beyond a reasonable doubt, but he denies that the jury found any of the aggravators listed in paragraph 4952(b)(1).
A close review of the jury instructions undermines Appellant‘s position. The trial court set forth multiple discrete prongs for the offense, and prefaced them with the admonition, “you must find that each of the following elements has been proven beyond a reasonable doubt.” N.T., Jan. 15, 2013, at 603. Besides the two elements which comprise the offense‘s general definition, see
Commonwealth v. Roney, 622 Pa. 1, 77, 79 A.3d 595, 640 (2013) (noting that juries are presumed to follow the court‘s instructions).
Nevertheless, Appellant contends a special verdict slip was required to infer that the jury found even a single statutory aggravator. See Brief for Appellant at 21.6 In other settings, courts infer that specific findings were made by the jury by examining
the degree special jury findings may be viewed as salutary, without them we may nonetheless glean such findings through straightforward reasoning.
We conclude, then, that the jury found Appellant‘s conduct to have encompassed one or more aggravating factors as set forth in paragraph 4952(b)(1). This is because, before stating that “the crime is a felony of the first degree,” the trial court told the jury that, to return a guilty verdict, it would have to find one of the (b)(1) aggravators. That being the case, the verdict, when purged of the taint stemming from the erroneous instruction, established guilt on the witness-intimidation charge at the third-degree-felony level. The maximum prison sentence Appellant would have faced at that level was seven years. See
Accordingly, we vacate the order of the Superior Court and remand to that court for further proceedings consistent with this opinion.
Chief Justice Baer and Justices Todd, Donohue, Wecht, and Mundy join the opinion.
Justice Dougherty files a concurring opinion in which Chief Justice Baer joins.
Notes
Except as provided in
42 Pa.C.S. § 9714 (relating to sentences for second and subsequent offenses), a person who has been convicted of a felony may be sentenced to imprisonment as follows:(1) In the case of a felony of the first degree, for a term which shall be fixed by the court at not more than 20 years.
(2) In the case of a felony of the second degree, for a term which shall be fixed by the court at not more than ten years.
(3) In the case of a felony of the third degree, for a term which shall be fixed by the court at not more than seven years.
Dixon, ___ Pa. at ___, 241 A.3d at 1092.Did the Superior Court err in ruling that the [PCRA court] correctly ruled that the original trial court‘s jury instruction at Count IV (Intimidation of Witness or Victim) was legally proper, despite (1) the trial court instructing the jury to find, as a matter of law, what the grading of the prior or underlying offense is, which in turn set the grading of the Intimidation of Witness or Victim charge; (2) by failing to include a place on the verdict form for the jury to indicate that it found that the prior or underlying crime was a felony of the first degree, and/or (3) by failing to include a place for the jury to indicate that it found the grading elements of subsection (b)(1)(i) or (b)(1)(iii)?