The Commonwealth filed bills of information charging Appellant with Intimidation of a Witness under 18 Pa.C.S. § 4952(a)(1), which contains as an element that the accused acted with the intent to intimidate any witness to refrain from informing law enforcement of some event. However, the proofs at trial, jury instructions and arguments all covered § 4952(a)(2) (to encourage a witness to give false testimony) and § 4952(a)(3) (to encourage the witness to withhold testimony or information). The Appellate court ruled that the issue was waived, as appellant brought it up for the first time just prior to sentencing.
Appellant still succeed in convincing the Superior Court to grade his intimidation conviction a misdemeanor of the second degree, as opposed to a felony of the first degree. The Court held that the Commonwealth needed to prove an element in § 4952(b)(1) and establish the gradation of the underlying offense, as established in § 4952(b)(2-4).Com-v.-Raymond