Commonwealth v. Doughty
| Decision Date | 18 November 2015 |
| Docket Number | No. 120 MAP 2014,120 MAP 2014 |
| Citation | 126 A.3d 951 |
| Parties | COMMONWEALTH of Pennsylvania, Appellee v. Jason Andrew DOUGHTY, Appellant. |
| Court | Pennsylvania Supreme Court |
Hugh J. Burns Jr., Esq., for Pennsylvania District Attorney's Association.
Dirk Emerson Berry, Esq., Law Office of Dirk Berry, Esq., for Jason A. Doughty.
David James Freed, Esq., Matthew Peter Smith, Esq., Charles John Volkert Jr., Esq., Cumberland County District Attorney's Office, for Commonwealth of Pennsylvania.
OPINION
Appellant appeals the decision of the Superior Court affirming his conviction under 18 Pa.C.S. § 4952 for intimidation of a witness, requesting we overrule or clarify Commonwealth v. Brachbill, 520 Pa. 533, 555 A.2d 82 (1989).
On June 30, 2012, while arguing with his wife, appellant struck her, knocked her to the ground, and attempted to force her back into their home; she escaped and drove to the police station. Police charged appellant with harassment and simple assault. While in prison awaiting his preliminary hearing, appellant tried to call his wife multiple times; she did not answer because the calls upset her. On July 14, 2012, appellant called his father, who called appellant's wife on a separate phone and relayed appellant's statements to her, establishing a three-way call on the two phones. Appellant insisted his wife tell the magistrate she would not testify, that she made a mistake, and that she caused her own injuries. If she failed to do so, appellant stated he would go to jail for two years, starve, and lose everything. He also told her that she must comply for the sake of their marriage, which he repeatedly described as "priceless." Prison Recording, Commonwealth's Exhibit 4, at 13:39–14:45. Appellant stated that if his wife was charged with making false statements, he would pay her fines. Two days later, she told police she no longer wished to press charges. See N.T. Hearing, 3/19/13, at 170–71.
In light of the phone call, the Commonwealth charged appellant with intimidation of a witness under 18 Pa.C.S. § 4952. A jury convicted appellant of simple assault and intimidation of a witness, and the trial court convicted him of harassment. He was sentenced to an aggregate term of 33 to 66 months imprisonment.
Appellant challenged the sufficiency of the evidence for the intimidation conviction. In particular, he argued the Commonwealth failed to prove the element of intimidation, as his wife testified she was not intimidated during the three-way conservation, see N.T. Hearing, 3/19/13, at 138, and there was no evidence he attempted to intimidate her. The trial court disagreed, concluding sufficient evidence existed to prove the attempt to intimidate. The court noted appellant "berated his wife, directly and indirectly, to not testify" and stated "there [was] simply no other way to parse [appellant's] words or his invective." Trial Court Opinion, 7/30/13, at 4–5.
Before the Superior Court, appellant conceded he tendered a pecuniary benefit by offering to pay potential fines, but he asserted such a fact related only to grading under 18 Pa.C.S. § 4952(b), and did not comprise intimidation under subsection (a). The court rejected this sufficiency claim, interpreting it as a functional request to overrule Brachbill. Commonwealth v. Doughty, No. 998 MDA 2013, unpublished memorandum at 6 (Pa.Super. filed March 26, 2014) . Recognizing it was bound by Brachbill , the Superior Court affirmed the intimidation conviction. Id., at 7. We granted allocatur to determine whether Brachbill "should be partially overturned[ ] or clarified so that it isn't in conflict with the plain language reading of 18 Pa.C.S. [ ] § 4952 and in conflict with the well[-]recognized rule of statutory construction that penal statutes must be strictly construed." Commonwealth v. Doughty, ––– Pa. ––––, 101 A.3d 1150 (2014) (per curiam ) (alterations in original).
In relevant part, 18 Pa.C.S. § 4952 provides:
18 Pa.C.S. § 4952(a)(3), (b)(1)(i)–(iv), (b)(4)–(5).
Appellant avers courts, pursuant to Brachbill, are convicting where only the mens rea and a grading provision are present, without requiring proof of intimidation. See Appellant's Brief, at 11 (). Thus, appellant claims intimidation has been read out of subsection (a), which leads to the "absurd" result that " ‘[a]ny offer’ will do" to support a conviction. Id. (quoting Lynch, at 710). Appellant argues, under Brachbill, courts are treating § 4952(b)(1)(ii) as a "super element" which constitutes proof of intimidation under § 4952(a). Id., at 10. As 18 Pa.C.S. § 4952(a) requires intimidation or an attempt to intimidate, appellant posits such an interpretation conflicts with the plain language of the statute and the rule of lenity, which provides penal statutes are to be strictly construed. See 1 Pa.C.S. § 1928(b)(1). Appellant submits that Brachbill, despite referencing the rule of lenity and that statutory terms are to be given their ordinary meanings, ignored both notions, as evidenced by the statement " ‘it is nevertheless clear that the legislature intended to proscribe ... any offers of benefit with the’ " applicable mens rea. Appellant's Brief, at 9–10 () (quoting Brachbill, at 86). He further notes the legislature meant to give a narrow meaning to intimidation since 18 Pa.C.S. § 4952's predecessor, id., § 4907 (repealed),1 used the broader term "induce," id. Accordingly, appellant posits Brachbill's holding that mere inducements may satisfy intimidation under subsection (a) "tortur[es] the English language [.]" Appellant's Brief, at 10.
The Commonwealth asserts it is unnecessary to overrule Brachbill because rather than abolishing the need to prove intimidation, Brachbill simply "describes the intent for and manner in which one can be intimidated [.]" Commonwealth's Brief, at 10 (emphasis omitted). The Commonwealth posits the pecuniary benefit provision does not replace the need to prove intimidation but instead stands for the proposition § 4952(a) is not limited to overtly threatening acts, and that Lynch reaffirmed this notion. Observing appellant selectively quoted Lynch, the Commonwealth submits Lynch merely clarified the type of intimidation "need not be of the bodily harm type." Id., at 9. As to appellant's claim that "any offer will do[,]" Appellant's Brief, at 11, the Commonwealth highlights Lynch specifically rejected such an assertion, Commonwealth's Brief, at 9 ().
The Commonwealth argues it proved intimidation here since the totality of the circumstances, in particular appellant's history of abusive conduct, reveal appellant's wife was "being intimidated with the loss of her existing livelihood." Id., at 11 (emphasis omitted). It suggests appellant's pecuniary offer "served only as a vehicle for [appellant] to remind [his wife] of the underlying violence that w[ould] be visited upon her if she d[id] not comply with his demands." Id. The Commonwealth further notes appellant previously told his wife he would kill her and used a racial epithet when she attempted to leave the house and call the police. The Commonwealth avers that, viewed through this prism, appellant's statements during the three-way conversation take on a threatening character that constitutes "textbook intimidation." Id., at 13.
Amicus curiae, the Pennsylvania District Attorneys Association, argues this Court is barred from revisiting Brachbill since Brachbill was decided upon legislative-intent grounds and thus Brachbill's interpretation became part of the act. See Commonwealth v. Shaffer, 557 Pa. 453, 734 A.2d 840, 844 (1999) (). Amicus suggests further statutory construction is prohibited because an alleged error as to legislative intent may " ‘only be remedied prospectively’ " by the legislature via amendment. Amicus Brief, at 6 (quoting Shaffer, at 844). Amicus...
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