Commonwealth, Aplt v. Kingston, S. , 636 Pa. 438 ( 2016 )

[J-61-2015]
IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT
SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.
COMMONWEALTH OF PENNSYLVANIA, : No. 45 MAP 2015
:
Appellant : Appeal from the Order of the Superior
: Court at No. 2016 MDA 2012 dated
: October 29, 2014, reconsideration
v. : denied January 8, 2015, which
: Affirmed/Vacated/Remanded the order
: from the Bradford County Court of
SCOTT BRADLEY KINGSTON, : Common Pleas, Criminal Division, at
: No. CP-08-CR-0000735-2009 dated
Appellee : October 22, 2012.
:
: SUBMITTED: August 31, 2015
OPINION
JUSTICE WECHT DECIDED: August 15, 2016
Section 906 of the Crimes Code provides that “[a] person may not be convicted
of more than one of the inchoate crimes of criminal attempt, criminal solicitation or
criminal conspiracy for conduct designed to commit or to culminate in the commission of
the same crime.” 18 Pa.C.S. § 906. The question in this case, raised under a
derivative theory of ineffective assistance of counsel, is whether that provision
proscribes only convictions for two or more distinct inchoate crimes, or whether it also
prohibits convictions for two or more counts of the same inchoate crime. We hold that
Section 906 bars convictions only for multiple distinct inchoate crimes. Because the
Superior Court concluded otherwise in remanding for an ineffectiveness hearing, we
reverse.
On November 8, 2008, Scott Kingston was driving home from a party with his
then-girlfriend, Jennifer Mroz, who was sitting in the passenger seat. Kingston drove his
vehicle off the road and into a ditch. When police officers arrived, Mroz told them that
Kingston, who was visibly intoxicated, had been driving the vehicle. The police arrested
Kingston and charged him with driving under the influence of alcohol or a controlled
substance (“DUI”), 75 Pa.C.S. § 3802, and several other Motor Vehicle Code violations.
A blood test revealed that Kingston’s blood alcohol concentration was 0.26% shortly
after the accident. Kingston had three prior DUI convictions. If convicted of a fourth, he
faced a mandatory minimum sentence of one-year incarceration. See 75 Pa.C.S.
§ 3804(b)(4).
Prior to his trial, Kingston sent Mroz three letters from the Wyoming County Jail,
where he was being held on charges unrelated to this appeal. In his first letter,
Kingston asked Mroz to speak to Kingston’s parents, and to find out whether they were
willing to testify that Kingston’s father was driving the vehicle on the night of the
accident. A few weeks later, Kingston sent Mroz a second letter, asking her to tell
“them” that she was driving on the night of the accident. Kingston assured Mroz that if
she took the blame for the collision “they” could only “give [her] a fine.” Notes of
Testimony (“N.T.”), 3/24/2010, exh. 2. Twelve days after that, Kingston sent Mroz a
third letter, advising her as follows:
I found out if you plead the 5th and say that you were toxicated you whont
get nothing out of it and it should be dropped we got to do something time
is running out and I got to get a lawyer be for Jan. 14-09 at 1:00 did you
get that statment that I sent you honey find out and see if you should do
that but dont say that I was driving the car if thay asck hoo was just say
you was baby because thay cant get you for a DUI because thay did not
take nothing.
Id. at exh. 3 (verbatim).
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In March 2009, Mroz testified for the Commonwealth at Kingston’s preliminary
hearing. Contrary to Kingston’s wishes, Mroz testified that Kingston was driving at the
time of the accident. The charges were held for court, and Kingston proceeded to trial.
However, due to an administrative oversight, Mroz did not receive notice that the
Commonwealth had subpoenaed her to testify at Kingston’s trial until after it had
commenced. When she failed to appear on the morning of Kingston’s trial, the court
issued a bench warrant for Mroz and proceeded without her. The jury ultimately
acquitted Kingston after Kingston’s father falsely testified that he was driving the vehicle
on the night in question.
The day after Kingston’s trial, Mroz met with a detective from the Bradford
County District Attorney’s Office and explained the subpoena mix-up. Mroz also told the
detective about the letters that Kingston had sent to her from jail. The Commonwealth
subsequently charged Kingston with, inter alia, three counts of soliciting perjury and
three counts of soliciting to hinder apprehension or prosecution. 18 Pa.C.S. §§ 4902,
5105. A jury convicted Kingston of all six counts, and the trial court imposed a
consecutive sentence for each. On direct appeal, the Superior Court affirmed
Kingston’s judgment of sentence. Commonwealth v. Kingston, 1031 MDA 2010 (Pa.
Super. May 26, 2011) (unpublished memorandum).
On May 2, 2012, Kingston timely filed a petition for relief pursuant to the Post
Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-46. Therein, Kingston alleged that
his trial counsel was ineffective for failing to object to the imposition of consecutive
sentences for each of his solicitation convictions. Kingston argued that, pursuant to
Section 906 of the Crimes Code, his six convictions should have merged into only two
for sentencing purposes, one for soliciting perjury and one for soliciting to hinder
apprehension or prosecution. The PCRA court dismissed Kingston’s petition without a
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hearing, concluding that Kingston’s ineffectiveness claim lacked arguable merit because
Section 906 “does not prohibit multiple convictions for the same type of inchoate crime.”
PCRA Court Order, 8/23/2012, at 2. Kingston appealed the PCRA court’s dismissal of
his petition to the Superior Court.
A divided three-judge panel of the Superior Court held that Kingston’s
ineffectiveness claim had arguable merit, and remanded the case to the PCRA court for
a hearing on the remaining prongs of the Pierce test. See Commonwealth v. Pierce,
527 A.2d 973 (Pa. 1987) (setting forth Pennsylvania’s three-factor inquiry for ineffective
assistance of counsel claims). The Superior Court acknowledged that no existing
precedent supported Kingston’s reading of the statute, but concluded nonetheless that
Section 906 bars his multiple convictions for distinct solicitations designed to culminate
in a single underlying crime. Although the majority avowedly relied upon the plain
language of the statute, it focused mainly upon the policy underlying Section 906’s
treatment of multiple inchoate convictions. Specifically, the court explained that the
statute is based upon “a recognition that the [societal] harm in inchoate crimes resides
‘not in the acts already accomplished, but in the danger that [an] appellant would
succeed in his criminal endeavor.’” Commonwealth v. Kingston, 2014 WL 10558605, at
*4 (Pa. Super. Oct. 29, 2014) (unpublished memorandum) (quoting Commonwealth v.
Crocker, 389 A.2d 601, 604 (Pa. Super. 1978)).
The court also concluded that Kingston’s six separate solicitations were designed
to culminate in the commission of only two crimes. The court reasoned that, although
Kingston’s letters to Mroz requested different methods of perjury or hindering
prosecution, “they were all methods to the same end—namely, exculpation of Kingston
o[n] the DUI charges.” Id. The court emphasized that Kingston’s three contrived
narratives were mutually exclusive. If she wanted to exculpate Kingston, Mroz had to
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select one of these stories and stick with it. The court likened the situation to “a
defendant soliciting another person to break into a house later that evening by going
through the front door, the back door, or through a window.” Id.The Honorable Mary Jane Bowes dissented. In her view, Section 906 “does not
preclude a sentence on multiple solicitation counts where the defendant, on separate
dates, solicited a person to commit the same crime.” Id. at *7 (Bowes, J., dissenting).
Judge Bowes stressed that “Section 906 has consistently been applied to preclude
multiple sentences for criminal attempt to commit crime X, criminal conspiracy to
commit crime X, and criminal solicitation to commit crime X, not to prohibit sentencing
on multiple acts of criminal solicitation.” Id. According to Judge Bowes, the Superior
Court majority essentially had redrafted the statute to read, “a person may not be
convicted of more than one criminal attempt, criminal solicitation or criminal conspiracy
for conduct designed to commit or to culminate in the commission of the same crime.”
Id.
Judge Bowes also rejected the majority’s conclusion that Kingston intended for
all six of his solicitations to culminate in only two crimes. She noted that Kingston thrice
solicited Mroz, sending three separate letters spread across several weeks. For this
reason, Judge Bowes rejected as inapposite the majority’s analogy to a situation in
which a defendant solicits another person “to break into a house later that evening by
going through the front door, the back door, or through a window.” Finally, Judge
Bowes observed that the court’s interpretation of Section 906 would yield absurd
results, namely, that “a person who solicits a person on two occasions, a year apart, to
murder his or her spouse could only be sentenced on one count of solicitation because
the spouse could only be murdered one time.” Id. at 5-6.
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We granted the Commonwealth’s petition for allowance of appeal to resolve the
novel question of statutory interpretation underlying Kingston’s ineffective assistance of
counsel claim.1 Our standard of review is de novo, and our scope of review is plenary.
Snead v. Soc. for the Prevention of Cruelty to Animals of Penna., 985 A.2d 909, 912
(Pa. 2009) (citing In re Milton Hershey Sch., 911 A.2d 1258, 1261 (Pa. 2006)).
Specifically, we consider whether Section 906 forbids multiple convictions for two or
more violations of a single inchoate offense when all of the violations are designed to
culminate in a single underlying crime. 18 Pa.C.S. § 906.2
In all matters involving statutory interpretation, we apply the Statutory
Construction Act, 1 Pa.C.S. §§ 1501, et seq., which directs us to ascertain and
effectuate the intent of the General Assembly. 1 Pa.C.S. § 1921(a). To accomplish that
goal, we interpret statutory language not in isolation, but with reference to the context in
which it appears. See Consulting Eng’rs Council of Penna. v. State Architects
Licensure Bd., 560 A.2d 1375, 1377 (Pa. 1989). A statute’s plain language generally
provides the best indication of legislative intent. See, e.g., McGrory v. Dep’t of Transp.,
915 A.2d 1155, 1158 (Pa. 2007); Commonwealth v. Gilmour Mfg. Co., 822 A.2d 676,
679 (Pa. 2003); Penna. Fin. Responsibility Assigned Claims Plan v. English, 664 A.2d
84, 87 (Pa. 1995) (“Where the words of a statute are clear and free from ambiguity the
1
In order to obtain relief based upon an ineffective assistance of counsel claim, a
petitioner must establish that: (1) the underlying claim has arguable merit; (2) no
reasonable basis existed for counsel’s actions or failure to act; and (3) petitioner
suffered prejudice as a result of counsel’s error such that there is a reasonable
probability that the result of the proceeding would have been different absent such error.
Pierce, 527 A.2d at 975.
2
The Commonwealth also argues now that Kingston’s solicitations were not
designed to culminate in the commission of the same crime. Brief for the
Commonwealth at 13. Because the Commonwealth did not appeal this issue, we will
not consider it.
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legislative intent is to be gleaned from those very words.”). Only where the words of a
statute are ambiguous will we resort to other considerations to discern legislative intent.
1 Pa.C.S. § 1921(c); see In re Canvass of Absentee Ballots of Nov. 4, 2003 Gen.
Election, 843 A.2d 1223, 1230 (Pa. 2004) (citing O’Rourke v. Commonwealth, 778 A.2d
1194, 1201 (Pa. 2001)).
The Commonwealth argues that Section 906 merely prevents trial courts from
imposing a sentence3 for more than one of the three preparatory offenses listed in the
statute whenever a defendant’s conduct is designed to culminate in the commission of a
single crime. The provision does not, according to the Commonwealth, bar multiple
sentences when a defendant is convicted of multiple counts of a single inchoate
offense. In support of its position, the Commonwealth provides only a few conclusory
assertions regarding the General Assembly’s intent. Without any accompanying
citations or supporting analysis, the Commonwealth contends that (1) the legislature
intended for “separate inchoate crimes to be punished” individually; (2) the Superior
Court’s interpretation of Section 906 was “unreasonable and contrary to the intent of the
legislature”; and (3) “[n]o lawmakers wanted to enact a ‘volume discount’ on criminal
conduct.” Brief for the Commonwealth at 16.
Kingston’s arguments are similarly perfunctory. Echoing his Superior Court brief,
Kingston argues that the trial court’s imposition of six consecutive sentences was
3
Although Section 906 bars “multiple convictions,” the Superior Court has held,
and we have assumed without explicitly deciding, that the statute proscribes multiple
judgments of sentence. Commonwealth v. Jacobs, 39 A.3d 977, 983 (Pa. 2012);
Commonwealth v. Grekis, 601 A.2d 1284, 1295 (Pa. Super. 1992) (“[Section 906] is
designed to eliminate multiple convictions, i.e., judgments of sentence, for conduct
which constitutes preparation for a single criminal objective.”). Neither the
Commonwealth nor Kingston disputes this approach. Thus, we assume for purposes of
this appeal that Section 906 prohibits multiple judgments of sentence.
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contrary to the Superior Court’s holdings in Commonwealth v. Grekis, 601 A.2d 1284(Pa. Super. 1992), and Commonwealth v. Crocker, 389 A.2d 601 (Pa. Super. 1978).4
Before proceeding to our analysis of Section 906, we first dispense with
Kingston’s reliance upon Crocker and Grekis. Crocker provides no support for
Kingston’s argument because the appellant in that case was convicted of two different
inchoate crimes, not multiple counts of a single inchoate crime. Grekis also is
distinguishable. There, the Superior Court rejected as meritless the appellant’s
argument that his convictions for three separate counts of solicitation to commit
involuntary deviate sexual intercourse (“IDSI”) violated Section 906. The court
explained that the appellant’s claim was “without factual basis” because the trial court
imposed a sentence for only one of his IDSI convictions and imposed no further penalty
for the remaining counts. Grekis, 601 A.2d at 1294. Even so, the court observed that
Section 906 was inapplicable because the appellant’s three solicitations were designed
to culminate in three distinct crimes. At all events, whether Kingston’s solicitations were
directed toward the commission of the same crime is not before this Court,5 the
4
Kingston also argues that his convictions for soliciting perjury should have
merged with his convictions for soliciting to hinder apprehension or prosecution.
According to Kingston, “both individual crimes were designed to culminate in the
commission of the same crime, which was to elicit false testimony under oath, at the
time of [t]rial.” Brief for Kingston at 9. Kingston did not raise this issue with the PCRA
court in his Pa.R.A.P. 1925(b) statement, and the Superior Court did not address it.
See Kingston’s Rule 1925(b) Statement, 12/5/2012, at 1-2 (unnumbered); Kingston,
2014 WL 10558605, at *5 (“While there are six separate solicitations involved, they all
envisioned culmination in but two criminal acts . . . .”). Thus, we need not consider this
argument.
5
See supra n.2.
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language that Kingston cites is obiter dicta,6 and this Court is not bound by the
decisions of the Superior Court.7
Our analysis begins with the plain language of Section 906, which provides that
“[a] person may not be convicted of more than one of the inchoate crimes of criminal
attempt, criminal solicitation or criminal conspiracy for conduct designed to commit or to
culminate in the commission of the same crime.” 18 Pa.C.S. § 906. Pennsylvania
courts have applied this provision in situations where a defendant commits two or three
inchoate offenses while preparing to commit a single underlying crime. See, e.g.,
Commonwealth v. Bright, 522 A.2d 573 (Pa. Super. 1987); Commonwealth v. Gonzales,
443 A.2d 301 (Pa. Super. 1982); Commonwealth v. Tingle, 419 A.2d 6 (Pa. Super.
1980). To illustrate, suppose that Dan, with the requisite criminal intent, asks Abe to
commit a robbery. Abe agrees and takes a substantial step toward the commission of
the robbery. Dan has committed three inchoate crimes.8 Yet, pursuant to Section 906,
he may be punished for only one.
6
In re Kenin’s Trust Estate, 23 A.2d 837, 842 (Pa. 1942) (“[I]n every case[,] what
is actually decided is the law applicable to the particular facts; all other legal conclusions
therein are but obiter dicta.” (internal quotation marks omitted)).
7
Commonwealth v. Cook, 735 A.2d 673, 679 n.8 (Pa. 1999) (“[T]his court is not
bound by rulings of a lower court in this Commonwealth.”).
8
Dan is guilty of solicitation because he requested that Abe engage in specific
criminal conduct that constitutes robbery. 18 Pa.C.S. § 902(a). Dan also is guilty of
attempt because Abe, who is Dan’s accomplice, took a substantial step toward the
commission of the robbery. 18 Pa.C.S. §§ 901, 306 (defining an accomplice to include
a person who, with the intent of promoting or facilitating the commission of an offense,
solicits another to commit it). Finally, Dan is guilty of conspiracy because he and Abe
agreed that Abe would commit the robbery. 18 Pa.C.S. § 903(a). Dan’s intent to
promote or to facilitate the robbery satisfies the mens rea requirement for all three
crimes, see 18 Pa.C.S. §§ 901-903, and Abe’s substantial step toward the commission
of the robbery also constitutes an overt act necessary to establish conspiracy. See 18
Pa.C.S. § 903(e).
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The question that we face distills to whether “more than one of the inchoate
crimes” refers to more than one substantive inchoate crime only, or whether it also
connotes more than one count of a particular inchoate crime. In effect, Kingston
maintains that multiple counts constitute discrete “crimes” in the same way that criminal
attempt, criminal solicitation, and criminal conspiracy are discrete “crimes.” Although
we acknowledge that the word “crimes,” at least in the abstract, might encompass two
or more violations of a single substantive criminal offense, a close examination of the
necessary predicates to Kingston’s argument reveals that his interpretation of Section
906 is not so reasonable as to render the statute ambiguous.
This Court does not dissect statutory text and interpret it in a vacuum. See
Mishoe v. Erie Ins. Co., 824 A.2d 1153, 1155 (Pa. 2003). We cannot disregard the fact
that “inchoate crimes,” as used in section 906, precedes three expressly enumerated
inchoate offenses. Section 906 forbids convictions for “more than one of the inchoate
crimes” listed. 18 Pa.C.S. § 906. To accept Kingston’s interpretation would require us
to privilege the unspoken “counts” over the express enumeration of distinct inchoate
offenses. We perceive no basis for adopting such a tortured interpretation. In contrast
to Section 906, the Crimes Code is replete with provisions that speak in terms of
“counts” or “violations” of a particular criminal offense. See, e.g., 18 Pa.C.S.
§ 7507.1(a.1) (listing circumstances under which “separate violations” of this section
occur); 18 Pa.C.S. § 6305(f)(2) (“No more than one violation of subsection (a) per
person arises out of separate incidents which take place in a 24-hour period.”); 18
Pa.C.S. § 3213(f) (“The department shall have the authority to assess a civil penalty of
up to $5,000 against any facility for each violation of this subsection.”); 18 Pa.C.S.
§ 4902(e) (providing that the Commonwealth may charge “a single count” of perjury
based upon a defendant’s mutually exclusive statements); cf. 1 Pa.C.S. § 1930
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(“Whenever a penalty or forfeiture is provided for the violation of a statute, such penalty
or forfeiture shall be construed to be for each such violation.”). We have held that all
sections of the Crimes Code “are necessarily interrelated and should be read and
construed as an entirety.” Commonwealth v. Lobiondo, 462 A.2d 662, 664 (Pa. 1983).
Viewed as a whole, Title 18 evinces the General Assembly’s appreciation of the
distinction between convictions for more than one of several specifically enumerated
crimes and convictions for multiple violations of a single crime.9 The General Assembly
included no language in Section 906 limiting convictions for two or more successive
violations of a single inchoate crime. Instead, it barred multiple convictions for “more
than one of the inchoate crimes of criminal attempt, criminal solicitation or criminal
conspiracy.” 18 Pa.C.S. § 906.
Kingston’s argument that Section 906 “bars the imposition of sentences for
multiple counts of the same inchoate charge,” Brief for Kingston at 7 (capitalization
modified), is untenable. It requires either that we ignore existing words in the statute or
that we add additional words to it. We can do neither. Section 906 does not prevent
convictions for more than one count of the inchoate crime of solicitation; it applies only
to convictions for “more than one of the inchoate crimes of criminal attempt, criminal
solicitation or criminal conspiracy.” 18 Pa.C.S. § 906. The General Assembly’s use of
the plural “crimes” is illuminating. Even if Section 906 spoke in terms of convictions for
9
To illustrate the distinction, consider the following hypothetical. Imagine a
provision that states, “no person may be employed by more than one of the co-equal
branches of the legislative branch or the judicial branch in any five-year period.” This
language clearly would prohibit a legislator from serving as judge during (or within five
years after) his or her legislative tenure. However, it would not prevent a trial court
judge from moving to an appellate court, or a member of the House of Representatives
from moving to the Senate. The unambiguous statutory text forbids employment in
multiple “branches,” a prohibition that no one reasonably could construe as barring
multiple positions within a single branch.
[J-61-2015] - 11
“more than one of the inchoate crime” of attempt, solicitation, or conspiracy, we would
face a baffling command at best. Unless we proceed to inject the word “counts” or
“violations” into the statute, the question necessarily would arise: “More than one what?”
Mroz neither agreed nor attempted to commit perjury or to hinder the
Commonwealth’s prosecution of Kingston. Thus, as it relates to this appeal, Kingston
was convicted of solicitation only. Nevertheless, the Superior Court departed from the
plain language of Section 906 because it reasoned that, if the General Assembly
wanted to prohibit convictions for two or more different inchoate offenses, but not for
multiple counts of the same inchoate offense, then it would have replaced the phrase
“for conduct designed to commit or to culminate in the commission of the same crime,”
id., “with the much shorter ‘same conduct.’” Kingston, 2014 WL 10558605, at *4.
Although that language would be more concise, it would do nothing to clarify that “more
than one of the inchoate crimes” means only more than one distinct inchoate crime.
The Superior Court majority did not engage in any further analysis of Section 906’s text,
nor did it explicitly find the statute to be ambiguous.
Even if we were willing to look beyond Section 906’s unambiguous language,
contra 1 Pa.C.S. § 1921(b), none of the traditional principles of statutory interpretation
support Kingston’s reading. It is not difficult to imagine why the General Assembly
would proscribe multiple convictions for distinct inchoate offenses in circumstances
where a defendant’s conduct was designed to culminate in the commission of a single
underlying crime. Successive steps in a criminal undertaking often will constitute a
criminal solicitation, a criminal conspiracy, and a criminal attempt, because all three
offenses necessarily overlap. All conspiracies follow a solicitation of some kind; there
can be no acceptance without an offer. In addition, the difference between an “overt
act” necessary to establish a criminal conspiracy and a “substantial step” evidencing a
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criminal attempt is one of degree only. See 18 Pa.C.S. §§ 903(e) (“No person may be
convicted of conspiracy to commit a crime unless an overt act in pursuance of such
conspiracy is alleged and proved to have been done by him or by a person with whom
he conspired.”), 901(a) (“A person commits an attempt when, with intent to commit a
specific crime, he does any act which constitutes a substantial step toward the
commission of that crime.”).
It is less clear why the General Assembly would bar plural convictions for
defendants who attempt repeatedly to commit the same crime.10 The Superior Court
reasoned that “the policy behind Section 906 rest[s] on a recognition that the harm in
inchoate crimes resides ‘not in the acts already accomplished, but in the danger that
[an] appellant [will] succeed in his criminal endeavor.’” Kingston, 2014 WL 10558605, at
*4 (quoting Commonwealth v. Crocker, 389 A.2d 601, 604 (Pa. Super. 1978)). This
policy statement is based upon the commentary to Section 5.05(3) of the Model Penal
Code (“MPC”), which states that “[a] person may not be convicted of more than one
offense defined by this Article for conduct designed to commit or to culminate in the
10
Even if the General Assembly intended to accomplish this result, it is unlikely that
it would have used Section 906, or a provision like it, to do so. If the General Assembly
wanted to restrict, or prohibit outright, multiple solicitation convictions, it likely would
have done so within the section defining criminal solicitation. Indeed, the General
Assembly did just that in the context of criminal conspiracy. See 18 Pa.C.S. §§ 903(a)
(providing that a person is guilty of conspiracy if he agrees with another “person or
persons” to commit, attempt to commit, or solicit a crime), 903(b) (defining a single
conspiratorial relationship to encompass persons who have conspired to commit the
same crime, even if they did not know the identity of some co-conspirators), 903(c) (“If a
person conspires to commit a number of crimes, he is guilty of only one conspiracy so
long as such multiple crimes are the object of the same agreement or continuous
conspiratorial relationship.”). We have held that, “where a section of a statute contains
a given provision, the omission of such a provision from a similar section is significant to
show a different legislative intent.” Fletcher v. Penna. Prop. & Cas. Ins. Guar. Ass’n,
985 A.2d 678, 684 (Pa. 2009).
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commission of the same crime.” MPC § 5.05(3). As the Superior Court noted in
Crocker, the drafters of the MPC explained that Section 5.05(3)
reflects the policy, frequently stated in these comments, of finding the evil
of preparatory action in the danger that it may culminate in the substantive
offense that is its object. Thus conceived, there is no warrant for
cumulating convictions of attempt, solicitation and conspiracy to commit
the same offense.
MPC § 5.05, cmt. 180 (Tent. Draft No. 10, 1960).
The explanatory note to Section 5.05 of the MPC likewise provides as follows:
Subsection (3) provides that a person may not be convicted of more than
one inchoate offense for conduct designed to culminate in the commission
of the same crime. See also Section 1.07(1)(b), which prohibits conviction
of both the inchoate offense and the substantive offense that is its object.
MPC § 5.05, note.
The Superior Court acknowledged that Kingston committed six separate
solicitations, but found that “they all envisioned culmination in but two criminal acts,”
perjury and hindering prosecution. Kingston, 2014 WL 10558605, at *5. This
conclusion may seem logical in light of the MPC’s avowal that inchoate crimes warrant
punishment only because of the potential that they might lead to the commission of the
predicate offense. See MPC § 5.05, cmt. 180 (Tent. Draft No. 10, 1960). But the
Superior Court’s reliance upon this language was misplaced. In enacting Chapter nine
of our Crimes Code, the General Assembly manifestly rejected the philosophy
expressed in the MPC commentary that inchoate criminal liability derives entirely from
the risk that an inchoate act might lead to the commission of the underlying substantive
offense.
In contrast to the MPC’s risk-of-danger approach, this Court has explained that
the purpose of Pennsylvania’s solicitation statute “is to hold accountable those who
would command, encourage, or request the commission of crimes by others.”
Commonwealth v. Hacker, 15 A.3d 333, 336 (Pa. 2011). Thus, Pennsylvania law
[J-61-2015] - 14
recognizes that inchoate crimes may present significant social dangers unconnected to
the risk that they might culminate in the commission of the underlying substantive
offense. Consistent with this theory of inchoate criminal liability, the General Assembly
has chosen to define the crime of attempt to include situations in which “it would have
been impossible for the accused to commit the crime attempted.” 18 Pa.C.S. § 901(b).
Finally, Pennsylvania law differs from the MPC insofar as our Crimes Code permits
convictions for conspiracy or solicitation even if a defendant is convicted of the
underlying predicate offense. Compare Commonwealth v. Miller, 364 A.2d 886, 886-87
(Pa. 1976) (holding that criminal conspiracy does not merge into the underlying
substantive offense or offenses) with MPC § 1.07(1)(b) (“[A defendant] may not . . . be
convicted of more than one offense if one offense consists only of a conspiracy or other
form of preparation to commit the other . . . .”). For these reasons, the Superior Court’s
rationale rests upon the mistaken perception that our Crimes Code imposes liability for
inchoate crimes only if there exists a unique danger that a defendant will succeed in his
or her criminal endeavor.
In any event, a policy-based analysis cannot overcome the unambiguous
language of Section 906. See Penna. Fin. Responsibility Assigned Claims Plan, 664
A.2d at 87 (“Where the words of a statute are clear and free from ambiguity the
legislative intent is to be gleaned from those very words.”). Section 906 does not forbid
the imposition of consecutive sentences for multiple violations of a single inchoate
offense. Accordingly, Kingston’s PCRA claim lacks arguable merit.
The order of the Superior Court is reversed.
Justices Baer, Todd, Donohue, Dougherty and Mundy join the opinion.
Chief Justice Saylor files a dissenting opinion.
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