[J-45-2021] [MO: Saylor, J.]

IN THE SUPREME COURT OF PENNSYLVANIA WESTERN DISTRICT

COMMONWEALTH OF PENNSYLVANIA, : No. 30 WAP 2020 : Appellee : Appeal from the Order of the : Superior Court entered May 20, : 2020 at No. 1203 WDA 2019 v. : affirming in part and vacating in part : the Order of the Court of Common : Pleas of Allegheny County entered DUWAYNE A. DIXON, JR., : August 2, 2019 at No. CP-02-CR- : 0016492-2008.

Appellant : : SUBMITTED: April 21, 2021

CONCURRING OPINION

JUSTICE DOUGHERTY DECIDED: AUGUST 6, 2021 I agree with the majority’s holding that the requirement of 18 Pa.C.S. §4952(b)(2) is an element of the first-degree felony graded offense of witness intimidation and the trial court’s instruction directing the jury to find such fact violated Apprendi v. New Jersey, 530 U.S. 466 (2000). I write separately to make clear that inherent in this holding is a finding that appellant’s underlying PCRA claim has arguable merit and the Superior Court erred when it affirmed the PCRA court by concluding “[a]ppellant is not entitled to relief because there is no merit to his claim[.]” Commonwealth v. Dixon, 1203 WDA 2019, 2020 WL 2554617 at *7 (Pa. Super., May 20, 2020) (unpublished memorandum). For my part, I anticipate correction of this error would be the Superior Court’s starting point upon remand.

Chief Justice Baer joins this concurring opinion.