Commonwealth v. Dixon

• Decision Date: 06 August 2021
• Docket Number: No. 30 WAP 2020,30 WAP 2020
• Citation: 255 A.3d 1258
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Duwayne A. DIXON, Jr., Appellant
• Court: Pennsylvania Supreme Court

255 A.3d 1258

COMMONWEALTH of Pennsylvania, Appellee

v.Duwayne A. DIXON, Jr., Appellant

No. 30 WAP 2020

Supreme Court of Pennsylvania.

Submitted: April 21, 2021

Decided: August 6, 2021

Peter Rosalsky, Esq., Philadelphia, for Amicus Curiae Defender Association of Philadelphia

Jacob Christian McCrea, Esq., for Appellant Duwayne A. Dixon, Jr.

Kevin Francis McCarthy, Esq., Michael Wayne Streily, Esq., Allegheny County District Attorney's Office, for Appellee Commonwealth of Pennsylvania

BAER, C.J., SAYLOR, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.

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, 147 L.Ed.2d 435 (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 18 Pa.C.S. §§ 4951 - 4958. One such offense is witness intimidation, which is set forth in Section 4952. That provision makes it an offense to induce a crime witness not to testify:

(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.

Id . § 4952(a)(5), (6).¹

If no aggravating factors are present, the offense is graded as a second-degree misdemeanor. If, however, there are aggravating circumstances, it is a felony, and the specific level of felony depends on the charges included in the case the actor sought to influence:

(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.

18 Pa.C.S. § 4952(b).

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 id . § 4952(b)(4). The caveat, however, is that if the highest crime charged in the underlying case was a second-degree felony, then the witness-intimidation offense is likewise graded as a second-degree felony. See id. § 4952(b)(3). And the offense is raised to a first-degree felony where a first-degree felony, or murder in the first or second degree, is charged in the underlying case. See id. § 4952(b)(2). See generally Commonwealth v. Raymond , 233 A.3d 809, 819-20 (Pa. Super. 2020) (noting that, under the above provision, witness intimidation is a first-degree felony where two conditions are met: a paragraph (b)(1) aggravator is present, and the underlying crime involved a charge of first- or second-degree murder or any first-degree felony).

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, 186 L.Ed.2d 314 (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 as reflected by the criminal information filed by the district attorney, the Commonwealth sought a conviction of the first-degree felony version of the witness-intimidation offense. See Criminal Information, Sept. 28, 2011, at Count VI. Before the jurors retired to deliberate, the court instructed them on the offense as follows:

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.

* * *

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 a 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.

* * *

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 18 Pa.C.S. 1103(1), (2) (prescribing that a person convicted of a first- or second-degree felony may be sentenced to up to twenty, or ten, years’ incarceration, respectively).²

After Appellant's judgment of sentence was affirmed on direct appeal, he filed a counseled, amended petition under the Post-Conviction Relief Act, 42 Pa.C.S. §§ 9541 - 9546 (the "PCRA"). In the petition, Appellant asserted that his trial counsel was ineffective for failing to object to or appeal from "an erroneous jury instruction at Count IV (intimidation of witness)." Amended PCRA Petition, Feb. 4, 2019, at ¶21. Specifically, he took issue with the last sentence in the above jury charge, "I instruct you that the crime is a felony of the first degree," which, he argued, impermissibly relieved the Commonwealth of its burden to prove that he was guilty of a first-degree felony pursuant to paragraph 4952(b)(2). Appellant maintained that, absent such proof, he could not have been sentenced at the first-degree-felony level of the offense. He thus asserted that the challenged instruction increased the penalty for the offense beyond the statutory...