Commonwealth v. Ostrosky, J. (Dissenting Opinion)
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[J-1-2006] IN THE SUPREME COURT OF PENNSYLVANIA WESTERN DISTRICT COMMONWEALTH OF PENNSYLVANIA, : : Appellant : : : v. : : : JEREMIAH D. OSTROSKY, : : Appellee : : No. 19 WAP 2005 Appeal from the Order of the Superior Court entered January 4, 2005 at No. 2134 WDA 2003, reversing the Order of the Court of Common Pleas of Allegheny County entered August 28, 2003 at CP-02-CR-00149166-2002. 866 A.2d 423 (Pa. Super. 2005) SUBMITTED: February 28, 2006 DISSENTING OPINION MR. JUSTICE CASTILLE DECIDED: NOVEMBER 22, 2006 In affirming the divided Superior Court panel decision below,1 the Majority Opinion reads the retaliation statute as if it were intended to embody a sort of one-free-dog-bite approach to unlawful verbal threats intended to intimidate victims or witnesses in a prior action. As a matter of basic, plain language, statutory construction, I do not believe the statute provides such a free pass. Hence, I respectfully dissent. The retaliation statute provides as follows: (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 1 Judge Bender authored the majority decision below, joined by Judge Panella. On the question currently before the Court, Judge Popovich dissented. acts which threaten another in retaliation for anything lawfully done in the capacity of witness, victim or a party in a civil matter. 18 Pa.C.S. § 4953(a). As the Majority notes, appellee was charged under the first part of this disjunctive definition, i.e., he was accused of harming another by an unlawful act with an intent to retaliate. I agree with the Majority that this clause requires the Commonwealth to establish that a person (1) caused harm to another; (2) that such harm resulted from an unlawful act; and (3) that such harm is in retaliation against a witness. The Majority holds, as a matter of law, that the extended verbal threats appellee leveled against the Fosters are insufficient to prove guilt under the first clause of Section 4953(a). The Majority interprets the statute as requiring that, where unlawful verbal threats are at issue, a defendant must engage in such conduct on multiple discrete occasions before he may be prosecuted for retaliation. In the Majority s view, a single occasion involving unlawful threats cannot satisfy the first clause of Section 4953(a) because, if it did, the showing of harm required by the clause would be rendered mere surplusage. Majority slip op. at 12-13. But the Majority reads a limitation into the statute which is not expressed in its plain language, and which contradicts practical experience. The first clause of the statute speaks only to an unlawful act which harms another, while the second clause is not limited to unlawful acts. The distinction is significant, obviously deliberate, and I believe, when properly construed, it encompasses the variety of real-world conduct that may operate to intimidate a witness or a victim. Reading the statute as a whole, it is apparent that a lawful act committed by a defendant might be threatening and thereby constitute a violation of the retaliation statute if committed repeatedly -- eventually making otherwise lawful conduct unlawful. See 18 Pa.C.S. § 2709(a) (punishing certain types of repeated communication or acts as harassment); Commonwealth v. Leach, 729 A.2d 608, 611-12 (Pa. Super. 1999) ( The elements of stalking are not established until the occurrence of a second prohibited act and [J-1-2006, MO: Baer, J.] - 2 any additional acts extend the course of conduct. ). Thus, for example, the retaliation statute may not have been implicated if appellee called the Fosters at home once and left a message conveying that he was upset that he was ordered to pay restitution for vandalizing the Fosters vehicle. But if appellant called the Fosters repeatedly, including multiple times a day and in the middle of the night, the conduct might rise to the level of conduct prohibited by the second clause of Section 4953(a). On the other hand, some acts, even if committed only once, are unlawful and sufficient in themselves to be deemed harmful, at least where there is a specific individual who is the victim of the unlawful act (indeed, that is why the conduct is criminalized). Not all unlawful acts have specific individuals as victims; a criminal act can be committed against public property, for example, or against the public generally. Here, appellee was convicted of making terroristic threats against the Fosters, arising out of a one-time (albeit prolonged) incident, which constituted an unlawful act even though but one confrontation was involved. See 18 Pa.C.S. § 2706(a)(1). Because retaliation may be accomplished through a variety of methods, and lawful conduct might not become threatening or illegal without it occurring multiple times, it is clear why the General Assembly saw a need to address retaliation committed through both a single unlawful act and lawful acts that become illegal when committed repeatedly. In my view, the first clause of the statute plainly captures the unlawful terroristic threats made by appellee in the case sub judice, threats which were directed at individuals with whom he had had a prior dispute. Given my understanding of the language of the statute, and the real world concerns with which it grapples, I necessarily, but respectfully, disagree with the Majority s conclusion that the harm element in the first clause of the statute would be rendered surplusage if the fact that the predicate act was unlawful supplied the harm. The Majority accurately summarizes the Commonwealth s argument on this point as follows: [J-1-2006, MO: Baer, J.] - 3 Regarding the element of harm required by the retaliation statute, the Commonwealth maintains that a crime is harmful in and of itself, which is why the legislature has prohibited hundreds of actions and called them crimes. It notes that not every harmful act is a crime, but that every crime is a harmful act. Thus, the Commonwealth maintains that once the unlawful acts of terroristic threats, disorderly conduct, and harassment were proven, harm, per se, resulted. Additionally, the Commonwealth asserts that the 2000 amendment to the retaliation statute merely clarified that a course of conduct and/or repeated threatening behavior, in addition to a single unlawful act are expressly prohibited under the statute. The Commonwealth maintains that by the addition of this language, the legislature in no way sought to decriminalize a single threatening act. Majority slip op. at 10. In my view, the Commonwealth s reading comports with the plain language of the statute, and avoids what would otherwise be an absurd and unreasonable reading. It bears reiteration that not all crimes involve harm to a person that the retaliation statute is meant to protect. From this fact, it logically follows that, in instances where the retaliation victim is not the victim of the predicate unlawful act, the statute would require a distinct showing of harm to the retaliation victim. If the defendant breaks the speeding limit while pursuing his victim on the highway, for example, it does not necessarily follow that the defendant s speeding violation caused harm to the person he was chasing. An argument might even be made that the harm element is not automatically established if the predicate unlawful acts involved harassing or brutalizing friends or family of the person who is the alleged victim of retaliation. But where the predicate act is criminal in and of itself (as was the case here), and where the victim of the predicate act is the same as the retaliation victim (as here), I believe that, under the plain language of the first clause of Section 4953(a) statute, harm has been proven. [J-1-2006, MO: Baer, J.] - 4 Since appellee committed an unlawful act against the Fosters in retaliation for their role in securing the restitution order instituted against him, I would reinstate his conviction for retaliation. Madame Justice Newman joins this opinion. [J-1-2006, MO: Baer, J.] - 5
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