A blog of the Philadelphia Bar Association’s Criminal Justice Section

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By Burt Rose

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The Superior Court of Pennsylvania en banc has decided the case of COMMONWEALTH of Pennsylvania v. Calvin Bartholomue LYNCH, Appellant, 761 MDA 2011, 2013 WL 3874981, 2013 PA Super 218 (July 29, 2013). The Defendant had been convicted in the Court of Common Pleas, Lancaster County, CP–36–CR–0005345–2009 and CP–36–CR–0005350–2009, of intimidation of a witness or victim. The Court was composed of Judges Stevens, BENDER,  BOWES, GANTMAN,DONOHUE, ALLEN, OLSON, OTT and WECHT. President Judge (soon to be Justice) Stevens wrote the Opinion.

The victim in this case was brutally beaten with a baseball bat by Appellant who was her boyfriend and the father of her children. After hitting his victim with the bat, the Appellant choked her until she lost consciousness. Just days later, Appellant made two collect calls to the victim from prison asking her to drop the charges and not to show up in court to testify. The victim also received a handwritten letter from the Appellant asking her to drop the charges or not show up to testify.

A person commits this offense if, with the intent to interfere with the administration of justice, he attempts to intimidate any witness or victim into withholding testimony from law enforcement, a prosecutor, or a judge. 18 Pa.C.S. § 4952(a)(3). Under Section 4952(b)(1)(ii), a felony version of the offense occurs where “the actor offers any pecuniary or other benefit to the witness or victim or, with the requisite intent or knowledge, to any other person.” Here, in both phone calls and letters in which he persistently asked and even begged his girlfriend not to show at trial, the Appellant offered her the prospect of a more stable and rewarding family life for her and their children in exchange for her refusal to testify against him.

The Majority concluded that an offer of a more stable and rewarding family life in exchange for the Victim’s refusal to testify in court constituted sufficient evidence of an offer of a pecuniary or other benefit prohibited under section 4952(b)(1)(ii).

Judge Bender, in a Dissent joined by Judges Wecht and Donohue, wrote that the Appellant’s promise of a better life for the victim and their mutual children was not a benefit capable of monetary valuation as required by the statute:

Promises of better behavior or new beginnings are such an inextricable part of any conversation held between those attempting to salvage failing relationships that one cannot help but think that the Majority’s decision today criminalizes nearly any communication between victims and perpetrators of domestic violence. No such intent can be discerned from the witness intimidation statute. Today, the Majority piles on punishment to the perpetrator of a horrendous act of violence. Tomorrow, the violence may itself be negligible and the intent of the parties to reconcile outside the court system mutual and sincere, yet, the Majority’s unrestrained interpretation of section 4952(b)(1)(ii) criminalizes efforts at atonement should a defendant dare suggest that the criminal justice system is an inappropriate venue to settle an marital dispute or similar affair.


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