Commonwealth, Aplt. v. Moore, J. , 628 Pa. 103 ( 2014 )

[J-14-2014]
IN THE SUPREME COURT OF PENNSYLVANIA
EASTERN DISTRICT
CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, STEVENS, JJ.
COMMONWEALTH OF PENNSYLVANIA, : No. 27 EAP 2013
:
Appellant : Appeal from the Judgment of the Superior
: Court entered on July 12, 2012 at No.
: 2032 EDA 2010 reversing and remanding
v. : the Judgment of Sentence entered on
: March 16, 2010 in the Court of Common
: Pleas of Philadelphia County, Criminal
JAMES R. MOORE, : Division, at Nos. CP-51-CR-0009849-
: 2008, MC-51-CR-0019450-2008, MC-51-
Appellee : CR-0019451-2008 and MC-51-CR-
: 0019452-2008
:
: ARGUED: March 12, 2014
OPINION
MADAME JUSTICE TODD DECIDED: October 30, 2014
In this appeal by allowance, we consider whether a conviction for possession of
an instrument of crime (“PIC”) may be sustained when a defendant has been otherwise
acquitted of related offenses involving the use of that instrument of crime, herein, a
firearm. For the reasons that follow, we hold that a defendant’s conviction of PIC may
indeed stand under such circumstances. Thus, we vacate the Superior Court’s order
reversing Appellee James R. Moore’s PIC conviction, and remand to the trial court for
reinstatement of Appellee’s judgment of sentence.
On April 13, 2008, at approximately 2:30 a.m., Appellee became involved in an
altercation with Gerald Stewart at a neighborhood “speakeasy”1 located at 5915 West
Girard Avenue in Philadelphia. Shortly thereafter, a gunfight erupted between Appellee
and various other patrons, during which Appellee, Stewart, and Vincent Dennis were
shot, and Reginald Mailey was killed.
Appellee was arrested in connection with the incident and charged with murder,
attempted murder, aggravated assault, simple assault, reckless endangerment, three
violations of the Uniform Firearms Act2 (“VUFA”), and PIC. The aggravated assault,
simple assault, and reckless endangerment charges, as well as two of the VUFA
charges, were ultimately nolle prossed, and, on January 11, 2010, the case proceeded
to a jury trial on the murder, attempted murder, and PIC charges, as well as Appellee’s
remaining VUFA charge of persons not to possess firearms. The trial was bifurcated,
with the jury hearing evidence related to the VUFA charge after it issued its verdict on
the other charges.
During the first portion of Appellee’s trial, the Commonwealth presented evidence
supporting its theory that Appellee initiated the shooting. Specifically, the
Commonwealth’s evidence indicated that, after his initial argument with Stewart,
Appellee left the speakeasy, retrieved a handgun from his car, and returned to the
establishment, where he began firing and shot Stewart, Dennis, and Mailey. According
to the Commonwealth, after Appellee began shooting, Stewart discovered a gun on the
floor and returned fire, shooting Appellee in the left thigh and right knee. The
Commonwealth claimed that Appellee subsequently left the speakeasy while still
1
This speakeasy has been eloquently described by the Superior Court as “a virtual
farrago of vice,” which “provided drugs, alcohol and prostitutes to its patrons.”
Commonwealth v. Moore, 49 A.3d 896, 897 (Pa. Super. 2012).
2
18 Pa.C.S.A. § 6105.
[J-14-2014] - 2
possessing his gun, drove away, and, minutes later, was stopped by police, who
recovered the gun from the front passenger seat of his car. Appellee, by contrast,
testified at trial that he retrieved the gun from inside the speakeasy after the fight began,
and that he returned fire in self-defense.
The jury acquitted Appellee of the murder and attempted murder charges, but
convicted him of PIC. In the second phase of the trial, after hearing evidence pertaining
to Appellee’s VUFA charge, the jury convicted Appellee of persons not to possess a
firearm. He received consecutive sentences of 2½ to 5 years incarceration for his PIC
conviction and 5 to 10 years imprisonment for his persons not to possess firearms
conviction. Appellee filed a post-sentence motion for reconsideration of sentence,
which was denied by operation of law, and he appealed his judgment of sentence to the
Superior Court, asserting the evidence was insufficient to sustain his PIC and persons
not to possess firearms convictions because of the jury’s acquittal on the charges of
murder and attempted murder.3
3
Appellee framed this issue as a sufficiency challenge, as several defendants
challenging inconsistent jury verdicts have done in past cases. See, e.g.,
Commonwealth v. Gonzalez, 527 A.2d 106 (Pa. 1987); Commonwealth v. Miller, 35
A.3d 1206 (Pa. 2012). However, the United States Supreme Court has recognized that
a court’s review of the evidentiary sufficiency of a particular conviction is separate from
its review of inconsistent verdicts, as sufficiency review entails an assessment of
whether the evidence was sufficient for the jury to convict a defendant of a particular
offense and is “independent of the jury’s determination that evidence on another count
was insufficient.” United States v. Powell, 469 U.S. 57, 67 (1984). Thus, the Supreme
Court has explicitly cautioned that sufficiency review “should not be confused with the
problems caused by inconsistent verdicts.” Id. Accordingly, in line with the high Court,
we emphasize that such challenges are more appropriately characterized as challenges
to the inconsistency of the jury’s verdict, rather than to the sufficiency of the evidence to
sustain a particular conviction.
[J-14-2014] - 3
In a unanimous published opinion, the Superior Court affirmed Appellee’s VUFA
conviction,4 but reversed his PIC conviction and remanded for re-sentencing,
concluding that, “since the jury acquitted Appell[ee] of committing any crime with the
firearm that he possessed, his conviction for PIC is infirm.” Moore, 49 A.3d at 898. In
reaching this conclusion, the Superior Court relied principally upon our decision in
Gonzalez. Therein, the appellant killed an individual with a shotgun, but asserted that
he did so in self-defense. Similar to the instant case, the jury acquitted the appellant of
murder and manslaughter, but nevertheless convicted him of PIC. The Superior Court
herein reasoned that we determined the evidence was insufficient to sustain the
appellant’s PIC conviction in Gonzalez because we found that the jury’s acquittal
reflected the jury’s acceptance of the appellant’s self-defense claim, and no other
evidence existed to support a finding that the appellant possessed his gun with the
intent to employ it criminally. Applying that logic to the instant case, the Superior Court
concluded that, even assuming arguendo that Appellee retrieved the gun from his car
rather than finding it at the speakeasy, because the offense of PIC requires a defendant
to have the intent to employ a weapon or a firearm criminally, and because Appellee
was acquitted of committing any crime with his firearm, Appellee lacked the requisite
criminal intent to sustain his PIC conviction.5
4
Specifically, the Superior Court found the evidence was sufficient to sustain this
conviction because Appellee stipulated that his criminal history rendered him a person
prohibited from possessing a firearm, and police discovered Appellee in possession of
the firearm in his car.
5
In so holding, the Superior Court stated that its ruling “flows from the elements of
[PIC], which unequivocally require that the weapon or firearm be employed criminally.”
Moore, 49 A.3d at 899. However, we note that the PIC statute requires only that an
individual intended to employ the weapon or firearm criminally, and does not contain an
element requiring the actual criminal employment of the weapon or firearm. 18
Pa.C.S.A. § 907(a) (“A person commits a misdemeanor of the first degree if he
possesses any instrument of crime with intent to employ it criminally.”).
[J-14-2014] - 4
While the Commonwealth argued that Appellee’s PIC conviction should stand
based upon Pennsylvania’s well settled acceptance of inconsistent jury verdicts, the
Superior Court rejected this contention, finding that principle inapplicable in the instant
case pursuant to our decision in Commonwealth v. Magliocco, 883 A.2d 479 (Pa. 2005)
(finding the evidence insufficient to convict an appellant of ethnic intimidation because
he was acquitted of terroristic threats, where the latter was a predicate offense at the
time of the appellant’s conviction). Specifically, the Superior Court interpreted
Magliocco as standing for the general proposition that, “where the offense in question
require[s] that the defendant commit a crime and where the trier of fact specifically
acquitted the defendant of the crime that was the necessary element of the offense for
which the defendant was convicted,” the general rule permitting inconsistent verdicts is
inapplicable. Moore, 49 A.3d at 902.
Following the Superior Court’s decision, the Commonwealth filed a petition for
allowance of appeal with this Court, and we granted review to consider whether a
defendant’s conviction for PIC may stand when that defendant was acquitted of the
related offenses involving the use of that instrument of crime;6 whether the Superior
Court contravened this Court’s precedent by extending Magliocco beyond its statutory
context; and whether we should clarify or overrule Gonzalez, which, as the
Commonwealth noted, “has been interpreted in this and other cases as forbidding a
conviction of [PIC] when the [Appellee] is acquitted of the non-weapons charges.”7 See
6
Our review is limited to inconsistent verdicts in cases where a defendant was
convicted of PIC, but was acquitted of related offenses involving the use of that
instrument of crime. No one challenges the general doctrine that juries are permitted to
reach verdicts that are inconsistent.
7
Amicus Curiae Defender Association of Philadelphia filed a brief on behalf of Appellee
challenging the constitutionality of a PIC conviction in cases where a defendant acted in
self-defense on the basis that such a conviction violates a citizen’s right to bear arms in
self-defense under Article I Section 21 of the Pennsylvania Constitution. Because
(continuedJ)
[J-14-2014] - 5
Commonwealth v. Moore, 68 A.3d 327 (Pa. 2013) (order). As these issues involve pure
questions of law, our standard of review is de novo, and our scope of review is plenary.
Miller, 35 A.2d at 1208 n.4.
Preliminarily, the Commonwealth notes that this Court has repeatedly held that
an inconsistent verdict does not by itself render evidence insufficient to sustain a
particular conviction, and that a jury’s acquittal on a charge “may not be interpreted as a
specific finding in relation to the evidence.” Appellant’s Brief at 12 (citing Miller, 35 A.3d
at 1213 (holding that appellant’s “acquittal of the predicate offense of robbery does not
necessitate the vacatur of his conviction of second-degree murder”); Commonwealth v.
Campbell, 651 A.2d 1096, 1100 (Pa. 1994) (accepting inconsistent verdicts with respect
to co-defendants in a conspiracy case); Commonwealth v. Carter, 282 A.2d 375, 377
(Pa. 1971) (upholding appellant’s aggravated assault and battery conviction despite the
fact that he was acquitted of separate count of simple assault and battery)). Thus,
according to the Commonwealth, the Superior Court’s decision to reverse Appellee’s
PIC conviction on the basis that the verdict was inconsistent with his murder and
attempted murder acquittals contravenes our established precedent and runs afoul of
the basic maxim that an acquittal shows nothing more than the fact that the jury was
“not convinced of the defendant’s guilt.” Appellant’s Brief at 12 (quoting Carter, 282
A.2d at 377).
The Commonwealth further contends that, in declining to apply the general rule
allowing inconsistent verdicts, the Superior Court improperly relied upon Magliocco and
wrongly extended it beyond its unique statutory context. Specifically, the
(Jcontinued)
neither party raises this issue and because amici are not permitted to raise issues that
have not been preserved by the parties, Holt v. LRC, 67 A.3d 1211, 1225 n.12 (Pa.
2013), we will not address this claim.
[J-14-2014] - 6
Commonwealth notes that, in Miller, we explicitly limited the Magliocco holding to the
ethnic intimidation statute — which contains an element requiring the commission of a
predicate offense — noting that Magliocco is “not generally applicable to other
offenses.” Appellant’s Brief at 17 (quoting Miller, 35 A.3d at 1213). The Commonwealth
also suggests that the Superior Court mistakenly relied upon Gonzalez in reaching its
decision, asserting that, in that case, we held the evidence was insufficient to sustain
the appellant’s conviction not because of the jury’s acquittal, but because the evidence
itself indisputably established self-defense. However, in the alternative, the
Commonwealth argues that, even if we were to find that Gonzalez did, in fact, hold that
evidence is insufficient to support a conviction of PIC in circumstances where the jury
acquits the appellant of the other offenses for which he is charged, that decision is
erroneous and should be overruled.
In response, Appellee maintains that the jury’s acquittal on his murder charges
evinces the jury’s acceptance of his self-defense claim. Thus, Appellee argues that,
because he was acting in self-defense, the Commonwealth failed to establish the
requisite criminal intent to sustain his PIC conviction, and, therefore, the Superior Court
properly overturned the conviction. In further support, Appellee cites to this Court’s
decision in Commonwealth v. Watson, 431 A.2d 949 (Pa. 1981), wherein we held that
an appellant who suffered from battered-spouse syndrome acted in self-defense when
she killed her common law husband, that no other evidence was present to establish
criminal intent, and, thus, that the appellant lacked the criminal intent necessary to
sustain her PIC conviction.
With these arguments in mind, we begin our analysis. Initially, the Superior
Court correctly observed that, in our decision in Gonzalez, authored by former Justice
Larsen, we refused to uphold the inconsistent verdicts at issue, which concerned a
[J-14-2014] - 7
defendant who, similar to Appellee, was acquitted of murder and voluntary
manslaughter, but was nevertheless convicted of PIC. Specifically, the defendant in
Gonzalez owned a small variety store in Philadelphia and threatened two gang
members who attempted to steal a radio from one of his customers, forcing them to
leave, and warning that he was “going to kill somebody.” Gonzalez, 527 A.2d at 107.
Minutes later, one of the men returned with 15 to 20 gang members, and the defendant
shot and killed him from the doorway of his store. Although the victim was unarmed, the
defendant asserted that the victim stated “I’m going to shoot your butt” and reached into
his jacket for a black, shiny object, which the defendant claimed prompted him to act in
self-defense. The jury convicted the defendant of PIC, but acquitted him of murder and
voluntary manslaughter.
On appeal, relying principally on our decision in Watson,8 we concluded that the
defendant did not commit a crime with his firearm because he acted in self-defense, and
that, as a result, his PIC conviction must be reversed. Even though Watson concerned
a sufficiency review of the defendant’s multiple convictions and not a review of
inconsistent verdicts, we nevertheless relied on its rationale in Gonzalez and concluded
that “Appellant did not commit a crime with the shotgun” — an apparent reference to his
homicide acquittal — and “[t]hus, the jury could not infer from the killing . . . that
appellant possessed intent to employ the shotgun criminally.” Gonzalez, 527 A.2d at
108. We further determined that the defendant’s statement that he was “going to kill
8
As we discuss further below, in Watson, we reviewed the sufficiency of the evidence to
sustain the defendant’s convictions for voluntary manslaughter and possession of a
concealed weapon. We found that the Commonwealth failed to present sufficient
evidence to disprove the defendant’s self-defense claim; that she necessarily acted in
self-defense; and that, therefore, she lacked the requisite criminal intent to sustain her
conviction for carrying a concealed weapon. Watson, 431 A.2d at 953. Importantly, we
reached our conclusion that the defendant acted in self-defense based upon the
evidence adduced at trial, rather than by making an inference from a jury’s acquittal.
[J-14-2014] - 8
somebody” was “consistent with an expression of [the defendant’s] preparedness to kill
in self defense (which is what the jury determined he did in this case).” Id. (emphasis
original). Such reasoning reflects that the Court inferred from the defendant’s acquittal
that the jury believed he killed in self-defense and, thus, lacked criminal intent relevant
to his PIC conviction — without conceding that doing so conflicted with the long line of
cases disapproving such jury inferences.9
9
Justice Baer opines in his Concurring Opinion that the Gonzalez Court’s basis for
reversal was the “lack of sufficient evidence to sustain the [defendant’s] PIC conviction,”
not an inference from his homicide acquittal. Concurring Opinion (Baer, J.), at 4; see
also id. at 8. Respectfully, we disagree. As noted above, the Gonzalez Court twice
referenced the jury’s determination. Furthermore, while Justice Baer correctly points
out that this Court engaged in a sufficiency review in Gonzalez, our review in that regard
was focused on whether the jury could have inferred criminal intent from the defendant’s
statement during his initial altercation with the victim, in response to the
Commonwealth’s argument that the jury could have inferred criminal intent from that
exchange. Gonzalez, 527 A.2d at 108. Admittedly, Gonzalez’s terse, six-paragraph
analysis is, as Justice Saylor implies, not a model of clarity. See Concurring Opinion
(Saylor, J.), at 2 (“[Gonzalez is subject to multiple, reasonable interpretations”).
Nevertheless, in our view, the Gonzalez Court’s reliance on an inference from the jury
acquittal predominates. Indeed, in his dissenting opinion in Gonzalez, Justice
McDermott described the majority opinion as “grounded in a belief that appellant’s [PIC]
conviction is invalid because a homicide conviction was not accomplished,” rather than
because there was insufficient evidence to render the appellant guilty of PIC. Id. at 109
(McDermott, J., dissenting). Moreover, courts have consistently interpreted Gonzalez in
this fashion. See Moore, 49 A.3d at 899 (noting the Gonzalez Court’s observation that
the jury’s acquittal “reflected an acceptance of [self-defense],” and stating that “since
Gonzalez was not guilty of committing a crime with his firearm, he could not, as a matter
of law, have intended to employ that item criminally”); In re A.C., 763 A.2d 889, 891 (Pa.
Super. 2000) (stating “a conviction for PIC cannot stand if the appellant is acquitted on
the underlying charge on the basis of self-defense,” citing Gonzalez); Commonwealth v.
Foster, 651 A.2d 163, 166 n.6 (Pa. Super. 1994) (describing Gonzalez as holding that
“evidence was insufficient to support conviction for possession of an instrument of crime
where defendant acted in self-defense” even though the jury in Gonzalez did not
expressly find that Gonzalez acted in self-defense); Weston, 749 A.2d at 461 (stating
that “[a]s this Court explained in Gonzalez, . . . the appellant could not be convicted of
PIC, since he was acquitted of the underlying killing on the basis of self-defense”);
Commonwealth v. Naranjo, 53 A.3d 66 (Pa. Super. 2012) (citing Gonzalez as support
(continuedJ)
[J-14-2014] - 9
Because Gonzalez supports the reversal of a defendant’s conviction for PIC
where, as here, the defendant raises a self-defense claim and is acquitted on other
related charges involving the use of that instrument of crime, the Superior Court
reasonably found that case was controlling herein. Nevertheless, as the
Commonwealth notes, Gonzalez is in substantial tension with the line of cases which
overwhelmingly permit inconsistent verdicts in a variety of contexts, as we discuss
below. As a result, we accept the Commonwealth’s invitation to revisit the validity of
that decision.
Federal and Pennsylvania courts alike have long recognized that jury acquittals
may not be interpreted as specific factual findings with regard to the evidence, as an
acquittal does not definitively establish that the jury was not convinced of a defendant’s
guilt. Rather, it has been the understanding of federal courts as well as the courts of
this Commonwealth that an acquittal may merely show lenity on the jury’s behalf, or that
“the verdict may have been the result of compromise, or of a mistake on the part of the
jury.” United States v. Dunn, 284 U.S. 390, 394 (1932); see also Carter, 282 A.2d at
376. Accordingly, the United States Supreme Court has instructed that courts may not
make factual findings regarding jury acquittals and, thus, cannot “upset” verdicts by
“speculation or inquiry into such matters.” Dunn, 284 U.S. at 394.
It is because of the inability to ascertain the rationale behind a jury’s decision to
acquit a defendant that the United States Supreme Court has proclaimed that
“[c]onsistency in the verdict is not necessary,” expressly holding that a defendant may
not challenge his conviction on one count when it is inconsistent with the jury’s verdict of
(Jcontinued)
for the proposition that “when a defendant is acquitted, based on self-defense, of the
crimes with which he is charged and there is no other evidence of criminal intent to
employ the weapon, he cannot be convicted of PIC”).
[J-14-2014] - 10
acquittal on another count. Id. at 393. This principle was first articulated by the United
States Supreme Court in the 1930s in Dunn, and was later reaffirmed by the Court in
Powell, wherein the Court — noting that “[t]he rule established in Dunn v. United States
has stood without exception in this court for 53 years” — rejected an appellant’s request
to adopt an exception to Dunn in cases where a defendant is acquitted of a predicate
offense, but convicted of the compound offense. Powell, 469 U.S. at 69.
We explicitly endorsed Dunn’s holding and rationale in Carter, wherein we upheld
an appellant’s aggravated assault and battery conviction despite the fact that the
appellant had been acquitted on a separate count of simple assault and battery, a
logical inconsistency. 282 A.2d at 377. In so doing, we rejected the notion that an
acquittal may be interpreted as a specific finding of innocence, and noted, consistent
with Dunn, that “[t]he most that can be said in such cases is that the verdict shows that
either in the acquittal or the conviction the jury did not speak their real conclusions, but
that does not show that they were not convinced of the defendant’s guilt.” Id. at 377
(internal quotation marks omitted).
In a series of cases following Carter, we continued to embrace the principle that
juries may reach inconsistent verdicts, along with its corollary that we may not interpret
a jury acquittal as a specific factual finding with regard to the evidence. See
Commonwealth v. (John) Reed, 326 A.2d 356, 358 n.2 (Pa. 1974) (logical inconsistency
in defendant’s conviction of second-degree murder and aggravated robbery and
acquittal of conspiracy did not justify a reversal); Commonwealth v. Strand, 347 A.2d
675, 676 (Pa. 1975) (upholding defendant’s second-degree murder conviction for
shooting and killing her victim despite the fact that she was acquitted of all VUFA
charges associated with her use of that firearm); Commonwealth v. Tallon, 387 A.2d 77,
82-83 (Pa. 1978) (opinion in support of affirmance) (upholding defendant’s voluntary
[J-14-2014] - 11
manslaughter and robbery convictions even though the defendant was acquitted of
felony murder); Commonwealth v. Gravely, 404 A.2d 1296, 1301 (Pa. 1979) (plurality)
(declining to reverse defendant’s second-degree murder conviction, which defendant
claimed was inconsistent with jury’s inability to reach a verdict with respect to his rape
charge, based upon longstanding principle permitting inconsistent verdicts); Campbell,
651 A.2d at 1101 (applying Dunn and Powell to approve inconsistent verdicts reached
as to multiple defendants charged with conspiracy in a joint trial); Commonwealth v.
Weston, 749 A.2d 458, 463 (Pa. 2000) (concluding that, where defendant asserted he
acted in self-defense and was convicted of voluntary manslaughter rather than murder,
the defendant’s voluntary manslaughter conviction did not negate the criminal intent
necessary to sustain his PIC conviction). Most recently, two years ago, in Miller, we
held that the defendant’s robbery acquittal did not necessitate vacating his second-
degree murder conviction, despite the fact that the verdicts appeared inconsistent,
reaffirming “the long-standing and well-established principle that consistency in a verdict
is not required” and our refusal “to speculate upon the nature of the jury’s deliberations.”
Miller, 35 A.3d at 1213.
Aside from Gonzalez, three relatively recent decisions from this Court —
Magliocco, Commonwealth v. (Richard) Reed, 9 A.3d 1138 (Pa. 2010), and Watson —
have been interpreted as exceptions to these long-standing principles. However, as we
discuss below, properly understood, they involve largely idiosyncratic sufficiency or
grading challenges that, critically, do not entail jury inferences and so are not in conflict
with the principle permitting inconsistent verdicts or its corollary that factual findings may
not be inferred from a jury’s acquittal.
First, in Magliocco, we addressed a challenge to the evidentiary sufficiency of a
defendant’s ethnic intimidation conviction. We agreed the conviction could not stand
[J-14-2014] - 12
because the defendant was acquitted of terroristic threats, which was a predicate
offense to ethnic intimidation at the time of the defendant’s conviction. Specifically, the
Crimes Code provided at that time that a defendant is guilty of ethnic intimidation “if,
with malicious intention toward the race . . . of another individual or group of individuals,
he commits an [enumerated] offense,” including terroristic threats. 18 Pa.C.S.A.
§ 2710(a) (1998). We interpreted the express statutory language of Section 2710(a)
and concluded that, because the jury acquitted the defendant, it essentially found that
the defendant did not “commit” terroristic threats, which was a specific element of the
crime and the only potentially applicable predicate offense in the defendant’s case, and
so the evidence was insufficient to sustain the defendant’s ethnic intimidation
conviction. Magliocco, 883 A.2d at 493. It was the fact of the jury’s acquittal — not any
factual inference drawn from the acquittal — and the statutory elements that drove our
discussion.10 As we later explained in Miller, our holding in Magliocco “was grounded in
the delineation of the elements of ethnic intimidation set forth in the text of that statute,”
and, thus, was not generally applicable to convictions under other statutes. Miller, 35
A.3d at 1213. Accordingly, to the extent the Superior Court below relied upon
Magliocco as support for its conclusion that inconsistent verdicts are grounds for
reversal in cases where a defendant is convicted of PIC, but acquitted of related
offenses involving the use of that instrument of crime, such reliance was misplaced.
Next, in (Richard) Reed, we addressed the proper grading of a defendant’s
attempted unlawful contact with a minor conviction when that defendant was acquitted
10
Notably, we explained that a defendant may be found to have “committed” an
enumerated predicate offense for purposes of the ethnic intimidation statute without
being formally convicted of that offense. Magliocco, 883 A.2d at 492. However, we
held that where, as in that case, the defendant was separately charged with and
prosecuted for the predicate offense, and the jury specifically acquitted the defendant of
that offense, a conviction for ethnic intimidation may not stand. Id. at 492-93.
[J-14-2014] - 13
of all of the underlying offenses for which he was charged.11 In so doing, we noted that,
at the time of the defendant’s offense, 18 Pa.C.S.A. § 6318(a) listed several underlying
offenses, which, if “committed” by the defendant while he was unlawfully in contact with
a minor, triggered higher grading than the statute’s default grading. We concluded,
however, that the statute’s default (lower) grading must apply in that case because the
jury acquitted the defendant of all the underlying offenses for which he was charged,
indicating that the jury “specifically determined” that the defendant did not “commit” the
other offenses. We opined that, were we to find otherwise, the sentencing court would
be forced to guess which of the underlying offenses the defendant sought to commit
when he contacted the minor, an absurd result. (Richard) Reed, 9 A.3d at 1148. As in
Magliocco, we later emphasized that (Richard) Reed, is “distinguished by the plain text
of [its] particular governing statute[], which controlled our disposition of [that] case[], but
[is] not generally applicable to other offenses.” Miller, 35 A.3d at 1213.
Lastly, in Watson, as noted above, the defendant was convicted of voluntary
manslaughter and possession of a concealed weapon despite raising a self-defense
claim. On appeal before our Court, the defendant challenged the sufficiency of the
evidence to sustain her convictions, arguing that the Commonwealth failed to meet its
burden of disproving her self-defense claim beyond a reasonable doubt and, thus, that
the evidence was insufficient to establish the necessary criminal intent to sustain her
convictions. We agreed, concluding the Commonwealth had failed to disprove the self-
defense claim, and, thus, essentially finding that the defendant killed her common law
husband in self-defense. Id. at 951. Applying that crucial finding to the defendant’s
possession of a concealed weapon conviction, we concluded that “criminal intent cannot
11
Pursuant to 18 Pa.C.S.A. § 6318(b), the offense of unlawful contact with a minor is to
be graded the same as the most serious underlying offense for which the defendant
attempted contact with a minor, or a first-degree misdemeanor, whichever is greater.
[J-14-2014] - 14
be inferred from the circumstances surrounding appellant’s possession of the gun which
killed her husband because appellant, having acted in self-defense, never used that gun
to commit a crime.” Id. at 953. Thus, Watson did not involve a jury acquittal, an
inference from a jury acquittal, or an inconsistent verdict challenge. Rather, our holding
with regard to the PIC conviction derived from this Court’s determination that the
defendant acted in self-defense by virtue of our conclusion that the Commonwealth
failed to disprove the defendant’s self-defense claim at trial.
Accordingly, in light of the above discussion, we reject any notion that Magliocco,
(Richard) Reed, and Watson represent exceptions to the long-standing principles that
juries may issue inconsistent verdicts and that reviewing courts may not draw factual
inferences in relation to the evidence from a jury’s decision to acquit a defendant of a
certain offense.
We now return to our decision in Gonzalez. As noted above, the defendant in
that case asserted that he shot and killed the victim in self-defense, and he was
subsequently acquitted of murder and manslaughter, but convicted of PIC. Without
reference to the case law, discussed above, permitting inconsistent verdicts and
prohibiting courts from drawing inferences from a jury’s acquittal on a particular offense,
the Gonzalez Court nevertheless inferred from the defendant’s acquittals a specific
factual finding with regard to the evidence: that the jury believed the defendant’s self-
defense claim. On that basis, the Court reversed the defendant’s PIC conviction,
concluding the conviction was logically inconsistent with the defendant’s acquittals. The
Commonwealth presently argues that Gonzalez patently conflicts with our precedent in
this area, and should be overruled.
We must be cautious in accepting the Commonwealth’s invitation to overrule
Gonzalez, however, as doing so would depart from the doctrine of stare decisis, which
[J-14-2014] - 15
“declares that for the sake of certainty, a conclusion reached in one case should be
applied to those which follow, if the facts are substantially the same, even though the
parties may be different.” Estate of Fridenberg v. Commonwealth, 33 A.3d 581, 589
(Pa. 2011) (citation omitted). We are ever mindful of the important role stare decisis
serves in “promot[ing] the evenhanded, predictable, and consistent development of
legal principles, foster[ing] reliance on judicial decisions, and contribut[ing] to the actual
and perceived integrity of the judicial process.” Pennsylvania State Ass’n of Cnty.
Comm’rs v. Commonwealth, 52 A.3d 1213, 1230 (Pa. 2012) (citation omitted). Yet, we
note that “stare decisis is not a vehicle for perpetuating error, but rather a legal concept
which responds to the demands of justice and, thus, permits the orderly growth process
of the law to flourish.” Buckwalter v. Borough of Phoenixville, 985 A.2d 728, 731 (Pa.
2009). We find such error to be manifest in Gonzalez.
First, as our discussion above demonstrates, Gonzalez departed from the long
line of cases from both this Court and the United States Supreme Court which
unequivocally permit inconsistent jury verdicts and prohibit drawing inferences from a
jury’s verdict of acquittal. In so doing, Gonzalez completely ignored Dunn, Carter, and
their progeny, failing to address this precedent or to explain why the Court declined to
adhere to it. Moreover, Gonzalez provided minimal analysis in support of this Court’s
rejection of the inconsistent verdicts in that case, relying principally upon our holding in
Watson. However, the Gonzalez Court failed to appreciate the critical distinction that
our holding in Watson arose out of a defendant’s challenge to the sufficiency of the
Commonwealth’s evidence to disprove her self-defense claim, rather than from a
claimed inconsistent jury verdict based upon an acquittal, and that we expressly
concluded in Watson that the defendant acted in self-defense based upon the evidence
adduced at trial, rather than by making an inference from a jury’s acquittal. As
[J-14-2014] - 16
emphasized above, “[a]n acquittal cannot be interpreted as a specific finding in relation
to some of the evidence.” Carter, 282 A.2d at 376 (internal quotation marks omitted).
In reversing the defendant’s PIC conviction therein, Gonzalez departed from that long-
standing precept. Thus, given the lack of meaningful analysis in Gonzalez, that the
Gonzalez Court misconstrued Watson, and, critically, that the decision was at odds with
well established case law, we now come to the conclusion that it must be overruled.
Without resort to Gonzalez, the Superior Court’s decision in the instant case
cannot be supported, as none of the other cases upon which the court relies permit a
reviewing court to reject a jury’s inconsistent verdict. Accordingly, although Appellee’s
murder and attempted murder acquittals may be logically inconsistent with Appellee’s
PIC conviction, in light of our enduring acceptance of inconsistent verdicts in
Pennsylvania, we conclude that the acquittals are not grounds for reversal of Appellee’s
PIC conviction, and, thus, we find the Superior Court erred in holding otherwise.
The order of the Superior Court is vacated. This case is remanded to the trial
court for reinstatement of Appellee’s judgment of sentence.
Former Justice McCaffery did not participate in the decision of this case.
Mr. Chief Justice Castille and Messrs. Justice Eakin and Stevens join the
opinion.
Mr. Justice Saylor files a concurring opinion.
Mr. Justice Baer files a concurring opinion.
[J-14-2014] - 17