Commonwealth, Aplt v. Kingston, S.

[J-61-2015] [M.O. - Wecht, J.]

IN THE SUPREME COURT OF PENNSYLVANIA

MIDDLE DISTRICT

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

DISSENTING OPINION

CHIEF JUSTICE SAYLOR DECIDED: August 15, 2016

The majority holds that Section 906’s prohibition against convictions “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” operates only horizontally, i.e., to foreclose convictions for combinations of different inchoate crimes, but not vertically to preclude convictions for multiple instances of any one of the named inchoate offenses. 18 Pa.C.S. §906. From my point of view, the statute is materially ambiguous in such regard, and accordingly, the rule of lenity should be applied to enforce horizontal and vertical preclusion.

In its reasoning rejecting vertical preclusion, the majority first states that acceptance of such proscription “would require us to privilege the unspoken ‘counts’ over the express enumeration of distinct inchoate offenses.” Majority Opinion, slip op. at 10. In point of fact, however, no such privileging is required, since extension of a rule of preclusion across the two categories which are facially encompassed within the statute simply is not an either-or proposition. Along these lines, I also do not see what is added through the observation that the Crimes Code may otherwise frequently speak in terms of “counts” or “violations.” See id. at 10-11. Straightforwardly, a crime is simply a violation of the law, see BLACK'S LAW DICTIONARY (17th ed. 1999); accord 18 Pa.C.S. § 106, so that the use of the terms “violation,” versus “count,” versus “crime” would seem to me to be immaterial. Accordingly, the answer to the majority’s defining question – “[m]ore than one what?” – seems apparent. Majority Opinion, slip op. at 12. Section 906 bars convictions of more than one crime or crimes in the delineated circumstances.

The majority also finds the Legislature’s use of the term “crimes” in Section 906, as opposed to “crime” to be clarifying. See Majority Opinion, slip op. at 11-12. From my point of view, again, little grammatical difference arises out of the use of the plural form, and certainly not one so great as to remove the manifest ambiguity from the statute.

In terms of the policy, it seems to me that the Legislature may have contemplated both horizontal and vertical preclusion to mitigate some of the conceptual difficulties surrounding inchoate offenses by curtailing their proliferation in association with a single object crime.1 Notably, and in all events, the Sentencing Code has been structured to allow a range of serious penalties and to afford sentencing courts discretion to consider various factors, which would include whether there may have been multiple acts or instances of solicitation, for example. In Appellee’s case, the status of solicitation of perjury as a third-degree felony (carrying a maximum prison sentence of seven years, see 18 Pa.C.S. §1103(3)), and solicitation of hindering prosecution as a misdemeanor of the second degree (implicating a maximum sentence of two years, see id. §1104(2)), would have left Appellant exposed to an aggregate maximum sentence of at least eighteen years’ imprisonment arising out of his various efforts to thwart his prosecution for DUI,2 even assuming that vertical preclusion would apply. See generally Commonwealth v. Hoke, 599 Pa. 587, 594, 962 A.2d 664, 668 (2009) (explaining that inchoate crimes have the same maximum sentences as the underlying crime, per Section 905(a) of the Crimes Code, 18 Pa.C.S. §905(a)).3

I recognize that the majority’s construction of Section 906 is consistent with the approach of some other courts, see, e.g., State v. Badillo, 317 P.3d 315, 320 (Or. Ct. App. 2013), and, in fact, may reflect the more likely underlying objective of the drafters of the Model Penal Code who originally formulated the proscription. See AMERICAN LAW INSTITUTE, PROPOSED OFFICIAL DRAFT OF THE MODEL PENAL CODE §5.05(3) (1962). Nevertheless, left to my own devices, in the face of these sorts of material ambiguities in statutes implicating substantial criminal liabilities, I favor more consistent application of the rule of lenity, thus leaving it to the Legislature to make its intentions plain and explicit to the degree that it favors more punitive approaches. Accord, e.g., Commonwealth v. Booth, 564 Pa. 228, 234, 766 A.2d 843, 846 (2001) (explaining that, “where ambiguity exists in the language of a penal statute, such language should be interpreted in the light most favorable to the accused” (citing Commonwealth v. Wooten, 519 Pa. 45, 53, 545 A.2d 876, 879 (1988))).4 In this vein, I regard some of the courts’ efforts to draw firm conclusions from ambiguous language to be problematic in their own right.

For the above reasons, I would affirm the order of the Superior Court.