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Commonwealth v. Evans

Superior Court of Pennsylvania

April 6, 2017

COMMONWEALTH OF PENNSYLVANIA
v.
KAREEM OMAR VON EVANS, Appellant

         Appeal from the Judgment of Sentence November 20, 2015 In the Court of Common Pleas of Bucks County Criminal Division at No(s): CP-09-CR-0007695-2014.

          BEFORE: STABILE, J., DUBOW, J., and STEVENS, PJ.E. [*]

          OPINION

          DUBOW, J.

         Appellant, Kareem Omar Von Evans, appeals from the Judgment of Sentence entered in the Bucks County Court of Common Pleas following his conviction of Criminal Solicitation of Witness Intimidation. After careful review of the facts of the case and current case law, we conclude that the Commonwealth's evidence is insufficient to demonstrate that the Appellant intended to "intimidate" the victim not to testify at the underlying trial. Rather, the evidence demonstrates that Appellant merely intended to "induce" the victim not to testify. Therefore, we are constrained to reverse Appellant's conviction of Criminal Solicitation of Witness Intimidation and vacate his Judgment of Sentence.

         This matter arises from Appellant's telephone and in-person conversations with his girlfriend while incarcerated and awaiting trial in a rape case.[1] In those conversations, Appellant asked his girlfriend to contact the victim in the rape case and offer to pay her not to testify. His girlfriend was never able to contact the victim.

         After obtaining the evidence of these conversations, the Commonwealth charged Appellant with one count each of Criminal Solicitation to Intimidate a Witness, Conspiracy to Commit Criminal Solicitation, and Witness Intimidation.

         On March 16, 2015, Appellant waived his right to a jury trial in the instant matter and agreed to a stipulated waiver trial. The parties stipulated to certain facts, which they then submitted to the court.

         The trial court summarized the evidence from the stipulated facts that it found relevant as follows:

The stipulated facts indicate that Appellant called Kalesha Cruz on multiple occasions between August 13, 2014 and September 25, 2014 to encourage her to contact the complaining witness in his underlying rape case so as to attempt to give her money in exchange for no longer appearing at judicial proceedings in his case. Appellant further discussed the possibility of Ms. Cruz contacting the victim during face-to-face visits that she made to the Bucks County Correctional Facility on various occasions during that same time.

Trial Ct. Op., 5/13/16, at 7.

         The trial court also summarized the testimony of the Appellant's girlfriend at the underlying rape trial in which she testified that the Appellant asked her to offer money to the rape victim in exchange for the rape victim not testifying:

At Appellant's rape trial, Ms. Cruz confirmed the fact that Appellant instructed her to attempt to locate the victim so as to give her financial compensation in exchange for not testifying against Appellant. Ms. Cruz was further able to identify the above-referenced conversations between her and Appellant during which Appellant discussed his plan. Ms. Cruz detailed that she received information from Appellant's family concerning the name of the victim, and she was sent screenshots of the victim's [B]ackpage account. After receiving the images, Ms. Cruz called the victim's phone number three (3) times from her cell phone and three (3) times from a pay phone, but only heard a sound resembling a fax machine in each instance. Additionally, Ms. Cruz identified phone conversations with Appellant where they would discuss her progress in attempting to contact the victim. Ms. Cruz reiterated that the reason she attempted to contact the victim was at the request of Appellant.

Id.

         The trial court also summarized the testimony of Appellant who admitted at his rape trial that he talked to his girlfriend about paying the victim in the rape case not to testify:

While testifying at trial, Appellant admitted to making the above-referenced phone calls to Ms. Cruz where he discussed attempting to contact the victim in his underlying rape trial. Similarly, Appellant disclosed that his intention was to pay the victim to secure her unavailability for trial. Appellant specifically conceded:
So my hopes to accomplish during the phone call was not to hurt anyone, but hoping if you give this person some money, that she wouldn't show up to court and put our family through this stress and this terrible incident to be accused of .... So I hoped that if I could give her the money, that all of this could go away.

Id. at 8.

         Based on this evidence, the trial court found Appellant guilty of Criminal Solicitation to Intimidate a Witness.[2] On November 20, 2015, the court sentenced Appellant to a term of 3½ to 10 years' incarceration, which was to run consecutively to the 40 ...


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