*1 to confirm the award. See Beriker v. also Products, Inc.,
Permagrain Pa.Super. (1985).
102,
¶ 23 The award herein was rendered 2004, 2, Appellants’ petition
November 31, January beyond filed on well time thirty-day permitted frame under Hence,
Pennsylvania law. the trial court
correctly the petition denied based
its untimeliness.
¶ 24 Order affirmed. Pennsylvania,
COMMONWEALTH of
Appellee, AUSTIN, Appellant.
Randall
Superior Court of Pennsylvania.
Argued March 2006. Aug.
Filed *2 BENDER, BY J.:
OPINION ¶ appeal judgment 1 This is an from he imposed upon Appellant after sentence degree of second was convicted murder, aggravated assault and attempted reports to authorities. false four for our consideration. raises issues rephrase We them follows: sufficient to sustain Was evidence degree conviction for second Appellant’s murder) (felony where the un- acquitted Appellant derlying felony supporting and murder; charge degree second for second Appellant’s conviction Was against weight degree murder evidence; commit reversible error Did court refusing instruct on volun- upon unrea- tary manslaughter based belief, there was suffi- where sonable charge; to warrant such a cient evidence and sustain sufficient to
Was evidence Appellant’s conviction murder? Upon careful consideration herein, reverse the convic-
issues raised we remand degree murder and tion for second third- as to a for a new trial criminal homicide. degree murder and/or present case stem charges 3 The and shootings of Damon Williams Castle, Griffith, men from New Tyree two Delaware, 14, 2002, on 34th April North Philadelphia. case Street Williams, shooting proved fatal. Damon Philadelphia Police Offi- evening, On that Laver, Philadelphia, appel- Steven G. pa- on routine Craig Richardson was cer lant. by two women confronted trol and was Huber, Burns, Mary J. Jr. and Hugh of 38th the intersection approached he Com., Atty’s, Philadelphia, Asst. Dist. Philadelphia. The two Girard Streets appellee. that there told Richardson women Officer block TODD, shooting had been BENDER BEFORE: Street, along that runs GANTMAN, street North 34th JJ. vehicle Philadelphia the border Zoo. Offi- Williams then exited proceeded upon cer location displayed Richardson a frown his face. and, arrival, his observed men. vehicle, Upon reentering own men, One of later identified as Damon *3 wrong. Griffith asked Williams what was Williams, old, years who was was responded that he Williams believed crawling By backwards across the street. Appellant ting” really was and “bullsh — the time Officer Richardson reached did not he drugs promised. have had Williams, young man displayed no Appellant called then Griffith Griffith’s pulse signs man, of life. The other walkie-talkie and Griffith asked what was Griffith, Tyree was found half lying inside wrong with his brother. Griffith stated a Buick LeSabre and half Griffith outside. just to trying his brother was do moaning in pain approached by when get some and back to business Delaware. Officer Richardson and told the officer then I Appellant said “hold on. Here that a man named “Iran” had shot him and Appellant come.” then duffle retrieved a had then driven off a silver Mercedes. trunk, bag approached from his Williams’ ¶ 4 According testimony to provided vehicle, door opened the rear of Williams’ Griffith, trial by Griffith had Appel- known vehicle sat and entered vehicle and years prior lant for few shooting, to the Williams, down to next who was seated as Appellant drugs had sold Griffith on the back talk- began seat. The two men several April occasions. On Grif- ing Appellant his while stuck hand inside fith called him Appellant and told bag. Suddenly Appellant duffle brother, younger Williams, his wished to Williams, grabbed handgun drew buy cocaine, a “brick” of larger much bag “give up.” the duffel and said the shit than previous amount Griffith’s purchases. began away struggling get Williams Appellant agreed Griffith and upon price from Appellant get and was able to $10,500 for the Appellant brick and in- open door to vehicle when Appellant structed Griffith to meet him at the same single fired a shot into lower William’s prior drug location the exchanges had tak- back. struggling get As Williams was en place, bordering 34th Street the zoo. Appellant, free from he was simultaneous- day, Later in the Williams and Griffith ly lift trying to the armrest between the drove from Appellant Delaware to meet a gun front seats to retrieve he had bag containing agreed upon placed spot. At the time Williams purchase price. they approached As shot, and gun Griffith saw zoo, phoned Appellant notify Griffith grabbed and shot back fired a into the him they approaching were the ex- Appellant. seat Both then toward men change driving a site. Williams was Buick exchanged exited the vehicle and fire be- and passenger LeSabre Griffith was away fore Griffith from the car fleeing, seat. parked Williams and vehicle Appellant and toward own vehicle. Appellant Ap- waited for to arrive. When Griffith noticed return to then pellant vehicle, pulled up behind Williams’ bag Williams’ car where he retrieved the Griffith got and Williams out of the car money contained the intended and approached Appellant’s Ap- vehicle. then to his drugs. returned pellant stated that he to talk to wanted away own from the vehicle drove Williams. Williams then the vehi- entered scene. cle had a with Ap- short conversation ¶ 6 in the pellant while Griffith returned to the Le- had been struck passenger by by Sabre sat in the bullet fired down seat. hand Griffith in Griffith’s direction couple him shots be- to seek medical treatment prompting fleeing running his Mercedes and Fitzger- went to fore wound. Mercy Hospital for treatment whose the scene. ald they police that were staff notified the trial, Appel- At the conclusion of Upon treating gunshot question- wound. guilty found of murder lant was Appellant told them that police, murder, aggra- degree, second “Dontey Tucker” and that he his name was reports false making vated assault and being 71st had been shot while robbed However, police. Appellant was found not and Woodland Avenues. robbery. Due to his ¶ 7 of the scene police investigation offense for second *4 the shooting recovery the in of of resulted murder, a motion Appellant filed degree one casings three 9 mm. and .38 caliber contending relief extraordinary for handgun A was projectile. .38 caliber support was insufficient the evidence grounds Philadelphia the found on the of degree second murder the conviction for Griffith he gun that the Zoo. indicated against also conviction was and the brother, and then later taken from his weight of the evidence. a .38 cali- property, thrown onto zoo was extraordinary was denied motion for relief weapon that the Appellant ber. indicated 16, 2005, May Appellant proceeded and a mm. used was Police also recov- he he sentenced to sentencing where was of a the back seat sample ered blood murder imprisonment felony on the life Appellant. Buick that was later matched to 20 to 40 sentence of charge, a consecutive murder, Appellant charged was with years’ attempted for murder imprisonment robbery, aggravated a sentence one concurrent police making reports to assault and false years making false re- imprisonment jury in a tried trial was before ports. appeal followed. present The 29, 2005, commencing March and conclud- contends that Appellant first trial, Appellant April 2005. At insufficient sustain his the evidence was a very stand and offered took the witness (felo degree on second murder conviction of the events of the disparate version murder) him jury acquitted ny where tes- shooting than did Griffith. as operated which charge talking tified that after with Williams charge of felo predicate felony from his drugs he his vehicle retrieved statutory definition ny murder. The back seat of trunk and entered the provides: degree murder second complete the transaction. car to Williams’ § 2502. Murder began to retrieve When bag noticed drugs from his duffle he (b) degree.— Murder of second handgun for a making a move Williams A criminal homicide constitutes this, Seeing si- his waistband. degree is commit- of the second when multaneously pushing/grabbing made a engaged was ted while defendant drawing his motion at Williams while accomplice perpe- or an principal Upon re- handgun from his waistband. felony. tration of moving shot sin- handgun, felony.” “Perpetration The act of At into back. gle round Williams’ being engaging or time, the defendant grabbed gun point in Griffith of, or an commission accomplice Ap- Williams shot one round commit, com- flight or after attempt to Ap- him in hand. which struck pellant, rob- attempting or commit mitting, ear and fired a jumped out pellant bery, rape, or respect deviate sexual intercourse section 5504 ... with to such indi- force, arson, by force or threat of bur- ... respect vidual or to one more glary kidnapping. a group.” members of such Id. at 489. Supreme recognized Court that “the § 18 Pa.C.S. only potentially appbcable predicate of- ¶ 11 While acknowledging that the rob- fense issue in this case was Terroristic bery of Williams and pred- Griffith was the id., Threats, 2706,” § 18 Pa.C.S. an offense icate offense for mur- contained within same article as ethnic der, the Commonwealth contends that the Thus, by intimidation. virtue of the defini- is nothing more than an tion the offense and virtue of that, such, inconsistent verdict and no manner in Magbocco charged, relief is due Appellant. The Common- the offense of terroristic threats correctly wealth survey asserts that a overwhelmingly supports law offense for the offense of ethnic premise that verdicts need not be Ostensibly, consis- intimidation. Moreover,
tent.
the Commonwealth ethnic intimidation could not be unless the
points
jurisdictions
to cases from other
factfinder concluded
that the
of-
*5
which have
acquittal
held that an
aon
fense
terroristic
“com-
threats
been
predicate felony will not impugn
guilty
Thus,
acquittal
mitted.”
of terroristic
verdict on a
murder.
presented
threats
that
was inter-
general
While we
with the Com- nally inconsistent.
law,
summary
monwealth’s
¶ Magbocco appealed
13
judgment
Pennsylvania Supreme Court’s recent deci-
to
sentence
this Court and
attacked
sion in
Magliocco,
Commonwealth v.
conviction for ethnic intimidation
on
(2005),
Pa.
sonable return a verdict of to necessary support is a element a convic- underlying offense maintain ethnic tion for intimidation.” Id. greater conviction for the The countered “that Commonwealth ¶ Ultimately, the Court sided with produced Magliocco evidence it —that Magliocco. doing, In Court did not so kill all threatened to the children and oth- general propo- with the appear disagree block, while people er their race law forwarded the Common- sitions of brandishing a sufficient baseball bat —was states: wealth. Court prove that he fact committed terroris- forwarding argument respecting its threats, though the bench trial tic even proper way view the trial court’s him of that judge specifically acquitted verdict, speaks the Commonwealth Id. crime.” at 490. The Commonwealth legal gov- principles terms of the broad maintained that: function, ie., reviewing court’s erning since ethnic intimidation inway the verdict must be requires finding underlying construed, looking to evi- rather than committed, judge’s offense was the trial may of what the verdict fact dence ethnic intimidation verdict on have reflected. representing a must be construed as n. remarks: Id. 9. Later Court committed ter- Magliocco threats, though even she de
roristic agree with the We also separate him of it as a clined convict in ver- inconsistency that a facial mere inconsistency in the Any crime. trial which to dicts is a valid basis *6 verdicts, court’s the Commonwealth ar is upset a conviction which otherwise awarding for gues, is no basis relief consistency in proper, since verdicts is sufficiency of the evidence claim required. not in not re consistency since verdicts is Indeed, recognized at 492. the Court Id. “ an quired acquittal and ‘cannot be requirement no there was in specific finding as a interpreted rela charge even the defendant ” tion to some the evidence.’ Com underlying predicate offense with the Brief, 9-10, (quoting Com monwealth’s greater order to seek a conviction of 212, Campbell, monwealth v. 539 Pa. offense. (Pa.1994)). 1096, 1100 A.2d the Commonwealth that We with argued Id. The Commonwealth further required not a formal it was secure “misapprehended that this Court had ter- predicate crime of conviction for reading plain language of the statute a con- roristic threats order to secure statutory phrase ‘commits an offense’ ” for intimidation based viction ethnic if it ‘is convicted of an offense.’ as read Indeed, upon such terroristic threats. that, contended Id. The Commonwealth statute, as we read Common- law, Pennsylvania “in the term ‘convicted’ formally charge the wealth need not de- id., the meaning,” has a distinct essence offense, as predicate fendant with merely implicit finding which was an long it makes clear which offense is offense, the actu- guilt predicate on the but offense for pursuing predicate verdict as al return of intimidation purposes of the ethnic predicate offense. Commonwealth’s is made charge, and the factfinder so argument essentially provided that since and, a jury, case of so aware did not the term “con- legislature use of,” charged. the term “com- victed but instead used However, Id. the Court an prosecution, asserted ethnic intimidation Ma- changed circumstance is gliocco when the Com- committed terroristic threats monwealth does underlying Instead, with racial a malicious animus. acquittal offense and an is ren- actually offense was dered: charged actually and prosecuted, difficulty
Our prosecution the Commonwealth’s resulted in an acquit- position necessary that, reason, arises from the effect tal —a for whatever an crime actual of a in the prove the Commonwealth failed to be- admittedly pre- unusual circumstance yond a reasonable doubt that the defen- here, sented where that crime both dant “committed” terroristic threats. separately charged prosecuted special weight Given the afforded acquit- specific statutory is also a element of tals, since the factfinder this case charged another specifically Magliocco found that did threats, Id. at 492. commit the analysis, the Court’s offense terroristic reasoning intimidation, was that: conviction ethnic requires as an element the com-
Acquittals, course, have been accord- beyond a mission reasonable doubt of special weight ed in the law. United DiFrancesco, offense, 117, underlying simply cannot States 449 U.S. 129-30, 433, Accordingly, 101 S.Ct. stand. affirm Supe- 66 L.Ed.2d we (1980) (“The law rior particular Magliocco’s ‘attaches Court’s vacatur of con- (citation ”) significance acquittal.’ viction ethnic intimidation. omitted); D.M., Commonwealth v. 548 Id. at 492-93. (Pa.1997). question pres- 16 The the instant case Thus, D.M., this Court stated: Appellant’s acquittal ents is whether A defendant a trial enters cloaked the charge compels a similar presumption of innocence and ie., Magliocco, result as the reversal of his when the fact-finder reaches a verdict murder. As Ma- of acquittal, justification there nois to gliocco, question there is no or contention search for reasons to undermine the *7 the parties applicable between as to the verdict. Such a defendant has predicate felony for greater the offense of strongest achieved the vindication Here, predicate felony murder. the possible tradition, under our criminal robbery. murder is The Commonwealth laws, procedures[.] Magliocco’s holding contends that is “idio- The wrapped
Id. Court its up discussion on syncratic” and limited to the ethnic intimi- thusly: the matter dation statute. we that the While crime, To secure a for any nuances statutes must be various prove necessary Commonwealth must all in to determine whether dissected order beyond elements a reasonable doubt. control, Magliocco will not we do believe Cosnek, E.g. Commonwealth v. Supreme strictly that Court meant (Pa.2003). In principle holding limit behind the Magliocco guilty order to find of ethnic the ethnic intimidation statute. case, in intimidation this the factfinder Magliocco In arguing that the beyond had to conclude a reasonable apply decision to the facts of the that, does among things, he actu- doubt other case, present points the Commonwealth ally “committed” the offense of terroris- But, out in the or tic threats. did the subtle differences words that, of- merely allege phrases purposes predicate which connect the in the that did not occur in the homicide greater to the offense fense is, question. felony.” Ethnic intimidation That offenses of a “perpetration offense be required predicate that during occurred homicide could have malicious intent toward “committed” with of, after, an unsuccessful at- or course indi- group of an individual or the race In predicate to commit the tempt felony requires murder viduals whereas circumstance, jury’s that that conclusion in the “engaged kill another that one while committed, offense was not predicate felony.” The Common- perpetration 1.e., bar a conviction for completed, should term correctly argues wealth not bar a offense but would than the “commits” is more restrictive while the crime was that a death occurred of a “engaged perpetration phrase Thus, it would be “perpetrated.2” being “commit,” varia- felony.” The term or its to occur even possible felony for a murder “commission,” completion tion connotes the was not though predicate offense “engaged the term of the offense whereas fact, we Despite “committed.” the above suggests of’ that mere perpetration in the language do the distinction not believe attempt in a criminal will suf- participation inquiry, particularly when ends the course, felony in the case fice.1 Of is predicate offense actually is operative phrase here. statutory sup- defined and the definition robbery presents in the “engaged The offense of ports thesis than phrase Magliocco of’ is broader perpetration question vis-a-vis unique robbery the term “commit.” The definition is holding the offense because in- engaged perpetration in the phrase and, felony mur- broadly worded similar being in or language “engaging cludes offense, der, also contains a of, an accomplice in the or commission statutory defini- being theft. offense commit, attempt flight or after commit- robbery tion follows: Thus, by commit.” ting, attempting to Robbery § 3701. definition, felony order to convict (a) Offense defined.— find murder it is not essential that actually (1) if, offense was A person is effect, mur- completed. theft, all the committing a he: the course for the requires der statute (i) bodily injury upon serious inflicts a criminal homicide was conclude that another; participat- while the defendant committed (ii) inten- threatens another completed or an delin- ed of immediate tionally him puts fear eated, i.e., predicate, offense. *8 bodily injury; serious rele The distinction becomes (in) immediately commits or threatens in Magliocco inquiry the that to vant for felony first any of the or to commit felony murder does not the extent degree; second i.e., commission, of completion, require the (iv) bodily injury upon another inflicts offense, an of the acquittal the with or intentional- always mean or threatens another will predicate offense course, essentially 2. the fact that the offense Dictionary equates Of Law 1. Black’s "perpetrate.” completed quite pos- attempted could the term "commit” but not Ed.2004). (8th Dictionary 288 liability Law expose Black’s sibly the defendant to criminal in,” However, adding "engaged by the words attempt meaning. phrase a takes on broader ly puts him in bodily fear of immediate following elements have been injury; or proven beyond a reasonable doubt:
(v) physically prop- takes or removes First, that the defendant inflicted seri- erty person by from the of another force Williams; bodily ous harm Damon slight. however And, second, that the defendant did so (2) An act shall be deemed “in the in committing the course of a theft. committing course of a if theft” it occurs act Defendant’s is in the course of in an attempt to commit theft or flight committing a theft not if it occurs after attempt or commission. in the actual commission theft but § Pa.C.S. attempt also in an to commit theft. So there is no crime attempted such felony murder, robbery Like robbery. you’re If require does not the course com- completion of the offense, theft, theft, require mitting but it even if it is brought does that force fruition, be utilized or threatened while does constitute rob- in the course of committing theft. In bery. deed, the “perpetration felony” term of a N.T., 4/04/05, at 191-92. contained in the felony definition of mur considered, Ap- When the above is der is very similar to phrase “in the pellant’s acquittal robbery translates to course of committing theft” contained a determination that Damon robbery. the definition of practical For all Williams was not killed the course of purposes, phrase “in the course theft, committing a an attempt to commit committing a theft” is equivalent of the theft or in flight after or attempt com- “in the perpetration of’ language found in mission aof theft. Since Damon Williams felony murder statute. The effect of killed, and since the returned a language this an acquittal of rob jury’s ver- bery merely does not translate into the dict must be read to constitute a conclu-
jury’s finding that the offense had not sion that did not or steal at- i.e., completed, been that the contemplated tempt money to steal from Williams and Rather, theft was not committed. an ac Furthermore, Griffith. due to the broad quittal robbery into jury’s translates definition of this finding further (1) finding that either: no been force had negates possibility that the homicide of employed in the transaction that constitut Damon perpe- Williams occurred “in the completed theft, ed a attempted or includ robbery,” tration undisputed pred- flight after completed attempt or icate offense for this (2) theft, ed or that if force was employed, Thus, in case. fashion same that Ma- it did not occur during completed gliocco’sacquittal of terroristic threats ne- theft, flight ei after gated possibility terroristic Indeed, ther. wording broad threats had been committed “with mali- robbery negates, offense of for the most cious intention toward race part, the of another attempted robbery crime of individual,” any commit attempt overt theft will rob- bery constitute requisite negates possibility if the force is that Damon *9 employed. The court’s instruction to the perpetration Williams was killed “in the of jury on this matter is instructive in this robbery.” a Since the Commonwealth regard. The court stated: sought separate charge a conviction on the
In acting predicate murder, order to find the felony defendant as for you robbery, must jury acquitted be satisfied that Appellant since 1222 force, offense, Magliocco but must also show directs unlawful given provoking must he free from fault
that this verdict of
be
was
continuing
difficulty
To
which resulted
special weight.
paraphrase
Su-
by substituting the relevant
preme
killing.
Court
in the
case,
the factfinder in
facts of this
“since
Serge,
v.
A.2d
Commonwealth
Appellant
found that
specifically
this case
(Pa.Super.2003).
1265-66
commit
the offense
did not
¶ 25 The
contends that
which re-
charge
a
support
the evidence did not
killing
quires as an element the
while
if Appellant’s testimo-
this defense because
can-
perpetration
robbery, simply
ny
it would
had been believed
1223 justified a agree not reasonable. We medical doctor to understand that death argument. with this In our opinion, easily gunshot can ensue from a to wound such, Commonwealth’s characterization of this premise the abdomen. Id. As Appel- issue is bit more clear cut than argument ar- Appellant’s faulty and his testimony supports. lant’s Had gument accordingly. fails actually testified that Williams drawn ¶ reasons, 28 For the we above conclude and pointed weapon at him before he Appellant’s conviction for murder of Williams, fired or had testi- degree the second life and the sentence fied that Williams shot him before he imposed thereon must be reversed. More- fire, returned then the Commonwealth’s over, given in failing the error to instruct position clearly would be accurate. There jury voluntary manslaughter, be no would room for the to believe case will be remanded for a trial new self-defense/justifi- and not find degree of third or a murder lesser However, given cation. that Appellant did However, of criminal degree homicide. for this happen, wait to could the error related to the murder possibly conclude that Williams had not charge, there is no reason upset yet fully demonstrated intent shoot Nevertheless, remaining convictions. Appellant, making Appellant’s belief that the reversal of life sentence he needed to shoot unreasonable. In the potential upset has the court’s sen- call, close we believe benefit of the scheme,4 tencing subject bewill doubt must togo the defendant. A jury’s resentencing, either at the conclusion of guilty voluntary manslaughter his new trial or upon the Commonwealth’s testimony the above hardly would be re-trial, indication that will seek Thus, shocking. upon the evidence pre- should the Commonwealth choose that sented, we believe it error not to issue course of action. the instruction when requested. reversed, 29 Judgment of life sentence ¶ 27 Appellant lastly contends that judgment imposed of sentence on the re- support evidence was insufficient to maining convictions vacated. Case re- the conviction for murder of degree manded for new trial on third Tyree disagree. Griffith. We Although homicide murder criminal and/or and/or Appellant acknowledges that intent to kill resentencing. Jurisdiction relin- can be inferred from using the act of quished. deadly weapon part on a body, vital Judge a concurring opin- Todd files Appellant posits that the evidence was in ion. sufficient that he establish acted with intent to kill Tyree when he shot Griffith TODD, CONCURRING OPINION BY because he shot Griffith in the stomach. J.:
Appellant contends that the stomach is not
I
Majority
While
with the
part
vital
of the body. Appellant’s argu
second-degree
the conviction for
simply preposterous
ment is
and is con
vacated, I
trary to
must be
come to that
precedent.
established
See
conclusion
Com
route,
Sepulveda,
217,
monwealth v.
579 Pa.
a somewhat different
and thus
(2004).
783,
A.2d
788-89
One need not
all
be
concur
the result on that issue.
(1995)
disposition
may
Pa.Super.
"Because this
disturb the
630 n. 10
below,
sentencing
[Appel-
Goldhammer,
scheme of the court
(citing
judgment of
lant’s]
sentence is vacated in its
(1986)).
other jury my colleagues. of and did not commit an While esteemed incon- otherwise allowed to be verdicts are analy- Majority’s 2 I the conclude that sistent, inconsistency gross degree this of sis, degree specific to that it infers the Magliocco. is allowed under not jury’s acquittal from the of findings factual robbery is charge, on the not Appellant determine, Thus, unless we can 4 Pennsylvania accordance with caselaw. statutory elements based the emphatic been Supreme Our Court has offenses, the looking behind without acquittal interpreted “an cannot be that jury’s acquittal, verdict of that the jury’s relation to some of specific robbery neces- Appellant of acquittal evidence,” consistency jury’s because felony-mur- sarily the elements negates is required. verdict in a criminal case not der, felony-murder, on then the verdict 212, Campbell, v. Pa. 539 inconsistent, if must even stand. 1096, (1994)(“We 219, 651 A.2d 1100 inter- ¶ I an inference as neces- regard such no pret acquittal as more [than case, however, in this for the follow- sary power they jury’s] assumption of Herein, in- jury was reasons. exercise, they no right but which no such crime as structed that there was (internal lenity.” disposed through were robbery robbery, sub- attempted that omitted)). That Ma- quotation marks or, robbery, attempted pre- more sumed just factual inferences jority makes such Opinion, attempted Majority cisely, theft. analyzing import process instructions). Al- (quoting jury at 1221 robbery, on jury’s acquittal Appellant general not correct as a though this is view, this See my departs from directive. see, v. e.g., Commonwealth proposition, Majority logi- opinion, at However White, 18, 440 A.2d Pa.Super. be, I may cal conclude we these inferences (1982) in- (approving jury 1200-01 making For prohibited from them. are robbery), attempted crime of struction on that example, Majority concludes while instructed, nevertheless, jury, robbery im- acquittal necessarily at- not free to conclude did plies that the found that verdict, robbery; by its tempted a attempt money from not steal or steal jury necessarily acquitted Appellant victims, may I note that the have Further, attempted robbery. but, robbery stolen, money found that was indeed reason, of the relevant ele- I find the definition leniency or for through whatever felony-murder statute —“in nonetheless, Ap- ment of the illogically, acquitted [robbery]” this be so robbery. Campbell, pellant perpetuation Under —to I it that must free do. close jury’s verdict reveals conclude Magliocco, 3 Under Commonwealth by Maglioc- inconsistency prohibited gross (2005), con- I felony- By finding Appellant co. only evidentiary finding that clude that the jury necessarily found that acquittal may be drawn —and attempted a rob- Appellant completed Campbell exception to this is the —is yet, by bery; its a given not commit defendant did did found that also of- committing offense. And where robbery. Be- attempt a complete crime, the is an element of another fense inconsistency gross this level of cause not then the defendant jury may convict under jury’s allowed crime. To allow such verdict that other Majority I say, Magliocco, es- jury to be to allow the would *12 felony-murder conviction on must be reversed. Pennsylvania,
COMMONWEALTH of
Appellee, EDWARDS, Appellant.
Kenneth
Superior Pennsylvania. Court of 8,May
Submitted 2006. Aug. 22,
Filed