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COMMONWEALTH PENNSYLVANIA v. STEVEN W. BRACHBILL (06/04/87)

filed: June 4, 1987.

COMMONWEALTH OF PENNSYLVANIA
v.
STEVEN W. BRACHBILL, APPELLANT. COMMONWEALTH OF PENNSYLVANIA V. DARRELL R. MUSSER, APPELLANT



Appeal from the Judgment Entered September 17, 1985 in the Court of Common Pleas of Centre County, Criminal No. 1984-814. Appeal from the Judgment Entered September 17, 1985 in the Court of Common Pleas of Centre County, Criminal No. 1984-782.

COUNSEL

Joseph M. Devecka, State College, for appellants.

Ross H. Cooper, Assistant District Attorney, Bellefont, for Com.

Wieand, Olszewski and Tamilia, JJ.

Author: Olszewski

[ 363 Pa. Super. Page 617]

These are consolidated appeals from judgments of sentence. After a jury trial appellant Darrell Musser was convicted of intimidation of witness or victim, 18 Pa.Cons. Stat.Ann.Sec. 4952. Both Musser and appellant Steven Brachbill were convicted of criminal conspiracy, 18 Pa.Cons.Stat.Ann.Sec. 903. Appellants now raise numerous issues which will be discussed seriatim. Finding no error, we affirm.

Musser and Brachbill were employed as correction officers at the Centre County Prison. The victim, Robert L. Riggleman, was incarcerated at the prison and served as a prison trustee. Riggleman had befriended the correction

[ 363 Pa. Super. Page 618]

    officers as evidenced by testimony that they often engaged in "horseplay."

Four days prior to Riggleman's release, several incidents occurred at the prison which form the basis of the Commonwealth's case.*fn1 In summary, appellants, at various times: restrained Riggleman while rubbing Ben Gay ointment onto his genitals; handcuffed and shackled Riggleman, placed a bag over his head, and wrote over his face and body with a marker pen; marked a barber pole stripe on his penis and wrote on his buttocks; shaved a patch of Riggleman's hair near his genitals; forcibly administered an unprescribed enema; and closely shaved his head.

After his release from prison, Riggleman reported these incidents to the Pennsylvania State Police and an investigation was commenced. Subsequently, appellants contacted Riggleman by telephone. During the conversation Riggleman lied and advised appellants that he had not contacted the police. Appellants told Riggleman to remain silent and to "report" to them every day or every other day. (R.R. 121a.) Thereafter, appellants telephoned Riggleman "quite a few times." (R.R. 122a.) On August 23, 1984, Riggleman contacted Corporal Hoffmaster of the State Police and that evening Riggleman returned appellants' call from police barracks. Corporal Hoffmaster overheard that conversation by listening on an extension telephone.

The next day Riggleman unexpectedly saw Musser at a yard sale. Musser expressed fear of losing his job because of what had happened at the prison. Musser offered to purchase clothing for Riggleman and his family and to take the latter out for dinner. Before parting, Musser gave Riggleman seven dollars "for the phone calls." (R.R. 127a.)

[ 363 Pa. Super. Page 619]

(2) The actor offers any pecuniary or other benefit to the witness or victim or, with the requisite intent or knowledge, to any other person.

(3) The actor's conduct is in furtherance of a conspiracy to intimidate a witness or victim.

(4) The actor solicits another to or accepts or agrees to accept any pecuniary or other benefit to intimidate a witness or victim.

(5) The actor has suffered any prior conviction for any violation of this title or any predecessor law hereto, or has been convicted, under any Federal statute or statute of any other state, of an act which would be a violation of this title if committed in this State.

Otherwise the offense is a misdemeanor of the second degree. 1980, Dec. 4, P.L. 1097, No. 187, Sec. 4, effective in 60 days.

18 Pa.Cons.Stat.Ann.Sec. 4952.

In instructing the jury as to the offense of intimidation, the court noted the necessary elements and then stated:

The common and everyday definition of intimidation is to compel or deter by use of threats. However, one person can be guilty of committing the crime of intimidation without actually threatening the victim. So while your common everyday knowledge of what intimidation means may include that someone has to be threatened, it is not true for the crime to be made out beyond a reasonable doubt that you must find that there was an actual threat to use force.

(R.R. 213a-214a). Appellants contend the jury should have been instructed that intimidation means to compel or deter conduct by threat. Specifically, appellant claims that a necessary element of the offense of intimidation is the presence of a threat by a defendant and that the jury should have been so charged. We do not agree for several reasons.

First, the statute's basic purpose suggests that it was designed to punish any knowing or intentional conduct designed to obstruct ...


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