Com. v. Kingston, S. ( 2014 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
SCOTT BRADLEY KINGSTON,
Appellant No. 2016 MDA 2012
Appeal from the PCRA Order October 22, 2012
In the Court of Common Pleas of Bradford County
Criminal Division at No(s): CP-08-CR-0000735-2009
BEFORE: BENDER, BOWES, and PANELLA, JJ.
CONCURRING AND DISSENTING MEMORANDUM BY BOWES, J.:
FILED OCTOBER 29, 2014
I agree with the distinguished majority that Appellant’s subject matter
jurisdiction claim is without merit. The courts of common pleas in
Pennsylvania are competent to try any criminal case arising in Pennsylvania
and therefore have subject matter jurisdiction. Commonwealth v. Bethea,
828 A.2d 1066 (Pa. 2003). Appellant’s actual challenge relates to venue. In
this respect, I concur with the majority’s assessment that his venue position
does not afford him relief. Appellant is not eligible for relief on his venue
issue because it was waived, 42 Pa.C.S. § 9544(b), and he has not raised it
as an ineffective assistance of counsel claim.1 However, I respectfully
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1
The majority finds Appellant’s venue claim is not cognizable. The use of
this phrase was the subject of a portion of my disagreement with the learned
(Footnote Continued Next Page)
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dissent from the majority’s suggestion that trial counsel may be ineffective
for not contesting Appellant’s sentences on three distinct solicitation to
commit perjury counts and three separate solicitation to hinder prosecution
charges, based on 18 Pa.C.S. § 906.
Initially, the majority incorrectly maintains that a similar § 906 issue
was presented but found to be waived in Commonwealth v. Wade, 33
A.3d 108 (Pa.Super. 2011) (Bowes, J.). See Majority Memorandum, at 9
n.2. Further, the majority errs in determining that Wade implicitly
recognized that § 906 would bar multiple convictions of possession of an
instrument of crime (“PIC”). Section 906 was not at issue in Wade and was
neither mentioned nor analyzed. Indeed, the defendant therein did not raise
any contention under § 906. This is because § 906 no longer pertains to
PIC, which was the relevant crime being discussed in the portion of Wade
relied on by the majority. Compare Commonwealth v. Ford, 461 A.2d
1281 (Pa.Super. 1983) (holding, based on an earlier version of 18 Pa.C.S. §
906, which read, “A person may not be convicted of more than one offense
defined by this chapter for conduct designed to commit or to culminate in
the commission of the same crime[,]” that a defendant cannot be sentenced
_______________________
(Footnote Continued)
author of the present majority in Commonwealth v. Descardes, 2014 PA
Super 210 (en banc). To the extent that the majority decision can be read
to suggest that Appellant could raise his venue challenge via a writ of
habeas corpus or coram nobis, I strongly separate myself from such a
reading.
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for both PIC and attempted murder where those two inchoate crimes have
the same criminal objective). The pertinent question in Wade was whether
the defendant’s multiple PIC convictions were part of one criminal episode.
Section 906 had no bearing on the outcome or analysis in that decision.
Accordingly, reliance on Wade is misplaced.
The majority also acknowledges that there are no reported decisions
supporting its conclusion that § 906 precludes multiple sentences for
criminal solicitations designed to culminate in the commission of perjury at
Appellant’s earlier DUI trial. Yet, it implicitly concludes that trial counsel
could be ineffective in not raising this novel statutory interpretation absent
some reasonable basis. The majority does state that it cannot determine
actual prejudice based on the record. However, the issue is a matter of
statutory interpretation, which is a pure question of law, subject to de novo
review. See Commonwealth v. Chester, __ A.3d __ (Pa. 2014) (filed
September 24, 2014). Either § 906 prohibits multiple sentences for criminal
solicitation that were intended to culminate in the commission of perjury and
hindering prosecution at one trial, or it does not. If § 906 does not operate
in the manner articulated by the majority, then, as a matter of law,
Appellant cannot establish prejudice (or arguable merit) and it would be
unnecessary to remand to the PCRA court for an evidentiary hearing.
Regardless, I find it perplexing to determine that trial counsel is
ineffective for failing to anticipate this Court’s potential novel interpretation
of § 906. While this interpretation would not be a new rule of law since it is
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based on statutory interpretation, see Fiore v. White, 757 A.2d 842 (Pa.
2000), I believe the majority misreads the statute and mistakenly extends
the law to Appellant’s commission of distinct criminal acts of solicitation.
Section 906 currently provides, “[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
import of this language has consistently been recognized: A defendant
cannot be sentenced for criminal attempt to commit murder, criminal
solicitation to commit murder, and criminal conspiracy to commit murder,
where a single murder was the objective of the attempt, conspiracy, and
solicitation. The same principle applies to other underlying crimes.
The statute does not preclude a sentence on multiple solicitation
counts where the defendant, on separate dates, solicited a person to commit
the same crime. This is because there are multiple solicitation crimes being
committed, i.e., distinct criminal acts and episodes. The majority essentially
re-writes the statute to say, “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.”
Instantly, the fact that the person being solicited would only be able to
perjure herself at one trial or hinder prosecution at that trial does not alter
the plain fact that Appellant committed separate criminal acts of solicitation.
This situation would be different had Appellant, in a single letter, solicited
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Ms. Mroz to commit perjury and offered three separate mechanisms to do
so.
Thus, the majority’s example of soliciting a burglarly is inapt. In that
situation, multiple sentences could be issued if the solicitations occurred on
three separate dates. See Commonwealth v. Grekis, 601 A.2d 1284,
1294 (Pa.Super. 1992). Of course, if the person only solicited the person
one time, but offered separate manners of completing the burglary, only one
solicitation occurred. Thus, the majority’s logic is faulty. This Court’s dicta
in Grekis supports my standard reading of the statute. In Grekis, the
defendant, on three separate occasions occurring weeks apart, solicited a
minor to engage in involuntary deviate sexual intercourse (“IDSI”). The
defendant was not sentenced on each count, however, he contended that he
could not be convicted of each separate count. This Court set forth that
even if the court imposed separate sentences on the charges it would not
have been improper because he committed three distinct acts of solicitation.
The majority distinguishes Grekis on the ground that the defendant
therein could have performed three IDSI crimes, rather than one IDSI crime.
See Majority Memorandum, at 10. Here, it is true that, based on Appellant’s
solicitations, Ms. Mroz could only perjure herself at Appellant’s original DUI
trial and not on multiple occasions outside of that trial. This distinction is
legally insignificant since in both situations the defendant committed
separate solicitation crimes. Under the majority’s logic, a person who
solicits a person on two occasions, a year apart, to murder his or her spouse
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could only be sentenced on one count of solicitation because the spouse
could only be murdered one time. In my view, the plain language of Section
906 does not support such a strained reading.
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. Section 906, at its core,
is a merger type statute. Merger statutes focus on prohibiting multiple
sentences for single criminal acts or episodes resulting in the commission of
one crime. Insofar as the majority decision implies that Appellant’s
solicitations were one criminal episode, such an issue would have to be
presented to the jury. See Wade, supra (discussing Commonwealth v.
Andrews, 768 A.2d 309 (Pa. 2001)). Appellant does not level an
ineffectiveness claim premised on counsel’s failure to seek a jury instruction
on this issue.
I am aware that § 906 issues have been held to implicate the legality
of sentence, see Commonwealth v. Jacobs, 39 A.3d 977 (Pa. 2012), and
would not necessarily require the issue to be forwarded under the
ineffectiveness rubric and can be raised sua sponte. Nonetheless, no
Pennsylvania court that I am aware of has sua sponte ruled that sentences
for separate solicitations to commit the same crime are illegal under § 906.
As the majority’s reading of the statute is unsupported by any case
law, could result in incongruous results, and is inconsistent with the ordinary
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reading of the statute, I cannot agree that trial counsel could potentially be
found ineffective for failing to advance the novel interpretation of § 906
posited by the majority.2 Nor would I find that Appellant’s sentence is
illegal. Therefore, I respectfully dissent and would affirm.
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2
I recognize that counsel may be found ineffective for failing to level a
challenge even where no case law exists on the subject where a plain
reading of a statute would support the argument. See Commonwealth v.
Jones, 416 A.2d 539 (Pa.Super. 1979). This case is not such a situation
because it is premised on a legally unsupported interpretation of 18 Pa.C.S.
§ 906.
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