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decided: March 6, 1989.


Appeal from the Order of the Superior Court of Pennsylvania, entered June 4, 1987, at Nos. 00680 and 00679 Harrisburg 1985, affirming Judgment of Sentence of the Court of Common Pleas, Centre County, Criminal Division, entered September 17, 1985, at Nos. 1984-814 and 1984-782. Nix, C.j.,*fn* and Larsen, Flaherty, McDermott Zappala, Papadakos and Stout, JJ. Papadakos, J., concurs in the result. Stout, J., files a dissenting opinion in which McDermott, J., joins.

Author: Nix

[ 520 Pa. Page 535]


Before us by allowance are the appeals of Steven Brachbill and Darrell Musser, from orders of the Superior Court affirming their convictions for certain criminal offenses. 363 Pa. Super. 615, 527 A.2d 113. We consolidated the appeals for argument and disposition.

Darrell Musser and Steven Brachbill were jointly tried before a jury in the Court of Common Pleas of Centre County. Mr. Musser was convicted of the offenses of Intimidation of Witnesses or Victims, 18 Pa.C.S. § 4952, and Criminal Conspiracy, 18 Pa.C.S. § 903. Mr. Brachbill was convicted of criminal conspiracy.*fn1

[ 520 Pa. Page 536]

After the denial of post-trial motions, appellants were sentenced to a term of two to twelve months, given credit for one day served and immediately furloughed under certain conditions and restrictions. Appellants appealed these convictions to the Superior Court which affirmed the judgments of sentence. We granted allocatur and, for the reasons that follow, reverse the judgment of sentence and order a new trial.

The criminal charges against Brachbill and Musser arose from acts committed by them during their employment as guards at the Centre County Prison. In August of 1984, the appellants, while employed as guards at the institution, perpetrated several acts of physical abuse against an inmate named Robert Riggleman. Inmate Riggleman was scheduled to be released from the prison on August 14, 1984. During the last three days of Riggleman's incarceration, guards Brachbill and Musser subjected him to a series of abuses which included unlawful shackling and handcuffing, and the forcible administration of an enema, all for their sport and amusement.*fn2 On the eve of Riggleman's release from the prison, he disclosed to prison officials what Brachbill and Musser had done to him; he also agreed to cooperate with the authorities in their decision to take action against the two guards. Riggleman assisted the state police by providing details of the assaults perpetrated upon him and by revealing the several attempts by the guards to persuade him not to talk to the police.

Riggleman was contacted by the guards shortly after his release from the prison. The guards explained to Riggleman that their conduct during his last few days of incarceration was being scrutinized and they told him not to talk to the police. They asked him to call them every day or so and they offered to pay for the calls. Riggleman encountered guard Musser at a yard sale one day where Musser told Riggleman that the continuing investigation of the incidents

[ 520 Pa. Page 537]

    was a concern to the guards. He once again told Riggleman not to discuss the incidents with the police. At that time, Musser gave Riggleman $7.00, and offered to buy Riggleman some pants and to take Riggleman's family out to dinner. Riggleman informed the state police about this encounter and about other calls he was receiving from the guards.

At one point Riggleman returned a call to Brachbill which Riggleman allowed State Police Corporal Jan Hoffmaster to listen to on an extension phone. During that conversation, Brachbill encouraged Riggleman not to reveal to the police the details of the guards' involvement in the assaults. Brachbill did not consent to, nor was he even aware of, Hoffmaster's monitoring of the conversation.

In this appeal Brachbill and Musser challenge the Superior Court's affirmance of their convictions on two grounds. It is first contended that there was insufficient evidence to sustain the intimidation charge under section 4952 because of the absence of any evidence of intimidation. Secondly, it is argued that the trial court should have granted the motion to suppress the testimony of a state police officer relating to an unlawfully intercepted telephone conversation. Although we are of the view that relief must be given based upon the second allegation, we are nevertheless constrained to discuss the first contention. Since the first argument is in effect a claim that the motion in arrest of judgment made at trial should have been sustained, it would require, if valid, the preclusion of a retrial as to the charge of intimidation. See, e.g., Commonwealth v. Cardona, 316 Pa. Super. 381, 463 A.2d 11 (1983); Commonwealth v. Ruffin, 317 Pa. Super. 126, 463 A.2d 1117 (1983).


Appellants' assertion that the offense of intimidation as defined in the Code requires proof of threats to support a conviction is meritless. Section 4952, in pertinent part, reads:*fn3

[ 520 Pa. Page 538]

(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:

(1) Refrain from informing or reporting to any law enforcement officer, prosecuting official or judge concerning any information, document or thing relating to the commission of a crime . . . .

(Emphasis added.)

Appellants argue that a conviction for intimidation cannot be sustained because there was no evidence at trial that Riggleman was threatened. They assert that without proof of threats there is insufficient evidence of intimidation to prove a violation. Appellants further contend that the courts below incorrectly held that the term "intimidate,"

[ 520 Pa. Page 539]

    under the Intimidation of Witnesses Act, and the term "induce," under the preceding Tampering with Witnesses Act, 18 Pa.C.S. § 4907 (Repealed), have the same meaning and encompass the same conduct. The pertinent portions of the prior provision provided:

Offense defined -- A person commits an offense if, believing that an official proceeding or investigation is pending or about to be instituted, he attempts to induce or otherwise cause a witness or information to:

     withhold any testimony, information, document or thing except on advice of counsel.

Grading -- The offense is a felony of the third degree if the actor employs force, deception, threat or offers of pecuniary benefit. Otherwise, it is a misdemeanor of the second degree.

18 Pa.C.S. § 4907 (repealed) (emphasis added).

Appellants correctly note that a conviction under the former provision did not require proof of a threat. See, e.g., Commonwealth v. Kwatkoski, 267 Pa. Super. 401, 406 A.2d 1102 (1979). They contend that, since the prior provision has been replaced by section 4952, which contains different language, the General Assembly could not have intended that the two acts have the same meaning. They argue that the legislature would have used the term "induce" if it intended the new provision to have the same meaning. According to appellant, the Legislature exhibited its intention to limit the application of the present provision to instances where a witness is actually threatened, and that any inducement which did not involve a form of "intimidation" was not intended to fall within the purview of the newer formulation of the offense. Appellants claim that the words "induce" and "intimidate" do not have the same ...

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