Pennsylvania Coalition Against Domestic Violence October 2014

The Jurist A Newsletter for Pennsylvania Judges About

Domestic Violence

Tips for Preventing Intimidation in the Courtroom – page 3

Commonwealth v. Lynch, 72 A.3d 706, (Pa. Super. 2013)

The Pennsylvania Superior Court further refines what constitutes intimidation in Commonwealth v. Lynch. The court held that phone calls and a letter sent by a defendant to his girlfriend days after brutally assaulting her constituted criminal intimidation. Even though the letters did not contain any direct threats to the victim, the court reasoned that the witness intimidation statute does not require a blatant attempt to intimidate a witness. A violation of the statute can occur without threats of physical harm.

The Facts

In Commonwealth v. Lynch, the defendant assaulted his girlfriend with a baseball bat and strangled her until she lost consciousness. She sustained a large gash to her head requiring stitches, a fractured elbow requiring surgery, and numerous cuts and bruises to her body. The defendant was charged with multiple offenses, including first-degree felony aggravated assault.

Attempts to Intimidate a Witness Do Not Need to Succeed to Support a Conviction

Preventing Intimidation in the Courtroom ................................... 3 PCCD Preventing Intimidation Benchbook .................................. 3 “Love” Notes Constitute Stalking, Trigger Felony Charge ................ 4 IMMIGRATION WEBINAR ........... 5 PCADV Domestic Violence Benchbook .................................. 6 Professional Resources Online for Judges ......................................... 6

Intimate Partner Intimidation Tactics and Court Responses

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Pennsylvania Coalition Against Domestic Violence Commonwealth v. Lynch (cont.)

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The court explained that the witness intimidation statute does not require that an attempt to intimidate a witness actually succeed:

[T]here may be instances where a plea for compassion and forgiveness by a physically abusive companion, partner, or other relation may appear pitiful and even prove unsuccessful in the end, but was, given the dynamics of the relationship at hand, reasonably calculated by the actor to deliver the kind of veiled threat that has bent the witness to his will in the past. In this regard, the facts of each case and the history between the actor and the witness will determine whether such communications, without more, qualify as ‘intimidation.’

Commonwealth v. Lynch, at 710.

The defendant in this case offered the income tax refund and the promise of a stable and more rewarding family life to his girlfriend to compel her not to testify. Defendant’s offer was neither too vague nor too speculative and therefore met the requirements of the witness intimidation statute. The court noted that in some instances the benefits offered by a defendant might be vague, incredible or frivolous, and in those cases the facts would not support a conviction under the law for intimidation.

The dissent offered in Commonwealth v. Lynch, found that the majority decision expanded the scope of Pennsylvania’s witness intimidation statute well beyond the legislature’s intent. The dissent reasoned that the majority acted as a fact-finder, a role an appellate court may not assume, when it determined that the defendant made an offer of a pecuniary benefit, because the trial court did not make such a finding. The dissenting judges also stated their belief that the benefits offered by the defendant were too vague. n

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Two days after being criminally charged, the defendant made two collect calls to his girlfriend from prison during which he asked her to drop the charges and not testify against him. Defendant also sent a letter to his girlfriend that asked her not to testify against him. In his phone calls and letter, the defendant never made threats to physically harm his girlfriend. Instead, he begged her to drop the charges and in return offered her a “fresh start” as a family and the use of an anticipated tax refund. Based on the calls and letter, the defendant was charged with intimidating a witness under section 4925 of the witness intimidation statute. After a hearing, the trial court found the defendant guilty. The trial court explained that defendant’s intent to intimidate was shown by defendant repeatedly asking his girlfriend not to testify at a time when she was likely still vulnerable from his assault.

The Appeal

Defendant appealed the intimidation conviction, arguing that (1) the evidence was insufficient to prove the offense of intimidation and (2) the evidence did not support grading the conviction as a felony in the first degree. Defendant asserted that the content of his communications were not threatening nor did he offer his girlfriend a benefit, pecuniary or otherwise, not to testify.

The Decision

The Superior Court affirmed the trial court’s decision and held that (1) the evidence was sufficient to show that the defendant intimidated the victim under 18 Pa.C.S. §  4952(a)(3) of the Crimes Code and (2) that the offense was a felony in the first degree because the defendant offered a benefit to his girlfriend in exchange for not testifying.

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Pennsylvania Coalition Against Domestic Violence

For Judges: “Free to Tell The Truth – Preventing and Combating Intimidation in Court: A Bench Book for Pennsylvania Judges”

Developed by the Pennsylvania Commission on Crime and Delinquency in 2011, the bench book details forms of intimidation, ways to create a safe and secure courtroom and how to respond to criminal intimidation.

Tips For Preventing Intimate Partner Intimidation In The Courtroom

1. Create separate waiting areas for victims and witnesses at the courthouse.

2. Train courtroom staff to be on the alert for acts of intimidation.

3. Issue warnings at the start of court that witness intimidation will not be tolerated.

4. Don’t colloquy victims about whether they wish to drop the charges.

5. Separate the parties in the courtroom.

6. Respond promptly to courtroom misconduct.

7. Stagger release of parties from courtroom (victims and witnesses first).

8. Limit continuances by the perpetrator.

9. Adopt judicial demeanor that respects victim safety.

10. Make “stay away” orders a condition of bail.

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Pennsylvania Coalition Against Domestic Violence

§ Written under the direction of a group of judicial leaders from across Pennsylvania

§ Provides substantive legal information, tools for trial court judges, statutory and case law

§ PCADV is digitizing the Benchbook chapters. Jurist subscribers will receive copies as they become available.

§ Contact Rachel Pinsker, Senior Attorney, at 888-235-3425 or rpinsker@pcadv.org

Download the Stalking Chapter now

Commonwealth v. Bortz, 909 A.2d 1221 (Pa. 2006). In Bortz, the defendant appealed a conviction for third-degree felony stalking. The defendant ignored the provisions of a PFA by calling, delivering love notes, and making unannounced visits to plaintiff’s home. Despite being convicted three times of PFA violations, the defendant persisted. Subsequently, the defendant was convicted of stalking, graded as a third-degree felony, and other offenses. Defendant appealed.

The Superior Court upheld the trial court's decision. The Superior Court reasoned that the statute graded a stalking offense as a third-degree felony where the defendant was previously convicted of a crime of violence. The statute specifically lists a violation of PFA orders as a “crime of violence” that triggers the increased grading. The dissenting Superior Court Judge contended that the defendant was never convicted of a "crime of violence," but rather defendant’s violations of the PFA involved love notes. Absent any threat or act of violence, the judge saw no evidentiary basis to uphold a felony grading. The defendant later used this argument in his appeal to the Supreme Court.

The Pennsylvania Supreme Court upheld the Superior Court’s decision, noting: "The stalking statute clearly reads that a first time offender who was previously convicted of a crime of violence involving the same victim, family, or household member including a violation of an order issued under 23 Pa.C.S. §6108 will receive a third-degree gradation. To read the statute in any other manner would fail to give effect to all of its terms.”

In this case, the Pennsylvania Supreme Court confirmed that a prior indirect criminal contempt conviction for violation of a PFA order issued under 23 Pa.C.S. § 6108 is grounds for grading a subsequent first conviction for stalking as a felony of the third-degree under 18 Pa.C.S. § 2709.1. n

Love Notes: PFA Order Violation Plus Stalking Conviction on Same Victim Triggers 3rd Degree Felony Charge

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Pennsylvania Coalition Against Domestic Violence

Join Leslye Orloff, Director of the National Immigrant Women’s Advocacy Project at the American University Washington College of Law, to explore immigration policies and the courts. Court of common pleas judges, law clerks and court staff will be provided with up-to-date, legally accurate information and materials, including tools and bench cards, that will help courts promote the fair administration of justice in cases involving immigrant families, litigants, and crime victims.

The webinar will discuss current Department of Homeland Security policies, immigration enforcement priorities, and immigration relief that provides protection from deportation as well as legal immigration status for immigrant children and immigrant victims of domestic violence, child abuse, elder abuse, sexual assault, human trafficking and other crimes. The special role created by Congress for law enforcement and judges in issuing U visa certifications will also be discussed.

Understanding the Intersection of Immigration Law in

State Court Proceedings A Webinar for Common Pleas Judges

and Court Staff

November 5, 2014, noon – 1:15 pm To register:

https://www3.gotomeeting.com/register/980451254

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Pennsylvania Coalition Against Domestic Violence

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This project was supported by subgrant No. 23860 awarded by PCCD, the state administering office for the SASP Formula Grant Program. The opinions, findings, conclusions, and recommendations expressed in this publication/program/exhibition are those of the author(s) and do not necessarily reflect the views of PCCD or the U.S. Department of Justice, Office on Violence Against Women.