CONCURRING OPINION BY STEVENS, P.J.E.: would find Appellant's conduct must go unpenalized only because the trial court made specific finding of fact he did not intend intimidate the victim with offer pecuniary benefit. Notwithstanding the court's identification of both brutal underlying crime endured the and the unavoidable intimidation she have experienced from Appellant's menacing offer it reached her, court not infer from such victim through the offer. Indeed, the credited Appellant's word did mean to it, instead, supported its verdict exclusively effect the have had. But ^[*] Former Justice specially assigned the Superior Court.

court's finding of fact this regard, affirm the judgment of sentence.

Because Appellant's of pecuniary benefit never reached the victim, the Commonwealth could make a case Section 4952 Intimidation a Witness only upon proof Appellant attempted to her. "A person commits when, with intent to commit a specific crime, he does any act which constitutes a substantial step toward the commission of that crime." 18 Pa.C.S. § 901(a) (emphasis added). "A person acts intentionally with respect to a material element of offense when[,] if the element involves the nature his conduct or result thereof, his conscious object to engage conduct nature or to cause such a result." 18 Pa.C.S. § 302(b)(1) (emphasis added). For example, a charge of Attempted Aggravated Assault, must prove that, when a defendant fired gun, it was intention or "conscious object" inflict serious bodily injury. See Commonwealth v. Hall, A.2d 537, 541 (Pa. 2003). Here, therefore, the Commonwealth bore the burden of proving it commit material element of intimidation.

In the non -jury trial, however, the accepted at his word intended only "pay off" not to her: "So I've considered the facts of the case, the nature of the case, and reasons that one commit such crime. And you just told me why you I've accepted what you just told me." N.T. 11/20/15 27.

- - Similarly, while the court later expressed its Pa.R.A.P. 1925(a) opinion that the victim would have necessarily felt intimidated Appellant's offer she received it, it nevertheless stopped short inferring from nature of the the related consequences that Appellant intended to intimidate. In fact, it identified absence intent: "Appellant may not have considered his conduct as intimidating, but he should not receive a benefit lack of appreciation for basic human sensitivities and what would be [his victim's] natural reaction to conduct." Trial Court Opinion, 5/13/16 (emphasis added).

Essentially, the court's own words, it based Appellant's conviction not on requisite proof that Appellant's to the victim-indeed, the specifically found not mean to intimidate-but, instead, on proof that have felt intimidated under the circumstances. Having explicitly found intent to lacking, the court could appropriately rely solely latter basis-the effect upon victim-to establish the mens rea element of an It for this reason, alone, I believe we are intimidate. constrained vacate judgment of sentence.

Had finder of fact not credited avowals acted without intent, have deemed of circumstances sufficient support reasonable inference Appellant attempted to engage in behavior.

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"[A pecuniary] inducement may or may not intimidate," and whether it "contains sufficient indicia of intimidation is be determined the fact finder and assessed under the totality of circumstances, cognizant that proof of manifest threats is not required." Commonwealth v. Doughty, 126 . intimidate A.3d 951, 957 (Pa. 2015) (noting "a mere look or posture can . . It axiomatic, moreover, we consider the beyond question."). in this regard in light most favorable the Commonwealth as verdict winner. Id. at 958.

A of circumstances assessment of the present facts involves viewing Appellant's attempted offer not isolation but within an historical context. The first time Appellant met the and his cohort subjected her to horrific multiple rape -at -shotgun -point. So considered, Appellant's attempt afterward to reach victim through an intermediary and convey desire she keep quiet exchange for money carried with an inherent element of menace and coercion deriving from the profoundly violative and merciless nature of their initial meeting.

Doughty includes within bounds Pa.C.S. § 4952 intimidation those ostensible offers of benefit that implicitly under the circumstances. Id. 957. Here, the only history between and victim involved extreme violence utter disregard her humanity. In light this history, Appellant's contact her second time may reasonably be viewed as bearing sufficient indicia message "should refuse." Id. For this reason, I

- - conclude of circumstances allowed the reasonable inference it was, indeed, object-his intent-to engage conduct nature.

Accordingly, would find the Commonwealth met its burden of proof affirm basis, not the made the specific finding of fact that not intend intimidate.

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