Com. v. Nevels, C. ( 2019 )

J-A26031-18
2019 Pa. Super. 16
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
CHARLES F. NEVELS, III :
:
Appellant : No. 1354 WDA 2017
Appeal from the Judgment of Sentence August 25, 2017
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0011118-2015
BEFORE: BENDER, P.J.E., SHOGAN, J., and MURRAY, J.
DISSENTING OPINION BY SHOGAN, J.: FILED JANUARY 18, 2019
Although the Majority presents a thoughtful analysis of the facts and law
in this matter, I am compelled to disagree with its determination regarding
Appellant’s challenge to his two convictions of retaliation against a witness,
victim or party. Thus, I respectfully dissent.
Appellant argues that his convictions for retaliation against a witness,
victim or party cannot be upheld because there is no indication that Appellant
sought retaliation against persons who were witnesses, victims or parties in a
civil matter. Appellant’s Brief at 48-49. Specifically, Appellant contends that
18 Pa.C.S. § 4953 requires that the person harmed by Appellant’s unlawful
act be a witness, victim or a party in a civil matter. Id. at 48. Appellant
further notes that there is no evidence that the underlying judicial matter,
from which Appellant’s conduct stemmed, was civil in nature. Id. Likewise,
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the Commonwealth essentially concedes that fact stating, “It does not appear
that the victims were involved in any civil matter that prompted [A]ppellant’s
criminal behavior toward them. Consequently, this Court may determine that
the evidence was insufficient with regard to these charges.” Commonwealth’s
Brief at 45 (emphasis in original). I agree.
Review of this issue focuses upon the interpretation of a statute and its
application of proper legal principles. These are questions of law for which
our standard of review is de novo and our scope of review is plenary.
Commonwealth v. Lynn, 114 A.3d 796, 817-818 (Pa. 2015).
When the parties read a statute in two different ways and the statutory
language is reasonably capable of either construction, the language is
ambiguous. Commonwealth v. Giulian, 141 A.3d 1262, 1268 (Pa. 2016).
The rule of lenity states, “[it] is axiomatic that . . . penal statutes must be
strictly construed, with ambiguities being resolved in favor of the accused.”
Commonwealth v. Rivera, 10 A.3d 1276, 1284 (Pa. Super. 2010).
However, the rule of lenity is applicable only when the penal statute has been
determined to be ambiguous. Commonwealth v. Jarowecki, 985 A.2d 955,
963 (Pa. 2009).
The statutory language at issue here provides as follows:
§ 4953. Retaliation against witness, victim or party
(a) Offense defined.-- A person commits an offense if he
harms another by any unlawful act or engages in a course of
conduct or repeatedly commits acts which threaten another in
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retaliation for anything lawfully done in the capacity of witness,
victim or a party in a civil matter.
18 Pa.C.S. § 4953(a).
My review of the statute reflects that the current version of Section 4953
was enacted by the General Assembly on December 20, 2000. The prior
version of the statute provided: “A person commits an offense if he harms
another by unlawful act in retaliation for anything lawfully done in the capacity
of witness or victim.” As the Majority aptly points out, “the current version,
which took effect on December 20, 2000, added the phrase ‘or a party in a
civil matter.’” Majority Opinion at 18. The Majority concludes that the
additional language “in a civil matter” should only modify the immediately
preceding word “party” and not the words “witness” and “victim.” In support
of this broad conclusion, the Majority relies upon the fact that two published
cases, Commonwealth v. Ostrosky, 909 A.2d 1224, 1232-1233 (Pa. 2006)
and Commonwealth v. Brewer, 876 A.2d 1029 (Pa. Super. 2005), had
applied the statute in criminal proceedings. Majority Opinion at 18-19.
However, it is my observation that neither of the two cited cases was
presented with the exact issue set forth by Appellant, nor did either case make
any holding on the matter at issue. Therefore, I cannot conclude that those
cases are controlling precedent for purposes of our analysis of Appellant’s
issue. Rather, I am constrained to conclude that the current statutory
language, which includes the limiting phrase “in a civil matter,” is capable of
being read in various manners. First, the phrase could require that the person
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against whom retaliation is sought be involved “in a civil matter” as a witness,
victim or party, thereby applying the limiting phrase to all the terms preceding
the phrase. The second reading of the language could require that the person
against whom retaliation is sought be a witness in any proceeding, but only a
victim or party “in a civil matter,” thereby applying the limiting phrase to the
two terms immediately preceding the phrase. The third reading could require
that the person against whom retaliation is sought be a witness or a victim in
any proceeding, but only a party “in a civil matter,” thereby applying the
limiting phrase to the one term immediately preceding the phrase. Hence, I
conclude that the statute is patently ambiguous.
Therefore, I would apply the rule of lenity to this ambiguous statute and
interpret the language of the statute in the light most favorable to the
accused. Such a reading would require that the persons against whom
Appellant sought retaliation be involved in a civil matter as a witness, victim
or party. However, as the Commonwealth concedes, the individuals were not
involved in a civil matter. Consequently, I would vacate the judgment of
sentence as it pertains to Appellant’s convictions of retaliation against a
witness, victim or party and remand the case for resentencing.
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