Lead
OPINION
We are asked to consider whether the sentencing enhancement codified at 42 Pa.C.S. § 9712, which imposes a mandatory sentence enhancement on a person who
I. Background
The facts underlying Appellant’s conviction are neither complicated nor subject to material dispute. The afternoon of April 21, 2001, found Derek Cunningham, the victim, speaking with Tiara Van Leer. Cunningham recently had sold Van Leer a car; presently, she was asking Cunningham to take back the car and refund the sales price. Cunningham agreed to take back the car, but offered to refund only $250 of the $300 sales price.
Van Leer’s cousin Ravah Dickson (Appellant), who stood nearby, expressed the view that Cunningham should refund Van Leer more than $250 of the sales price. Appellant then left the scene and returned a few minutes later with co-defendant William Brown and one Bruce Veney, also Van Leer’s cousin.
Appellant and Brown were arrested and tried together before a jury in the Court of Common Pleas of Philadelphia County. Brown was convicted of robbery and criminal conspiracy;
On March 25, 2002, the trial court convened a sentencing hearing. There, Appellant, noting that the original indictment was couched in terms of theft, robbery, and conspiracy to commit same, and further pointing out that he was convicted of conspiracy but acquitted of robbery, argued
Appellant next called the court’s attention to an Apprendi motion then pending.
Before the trial court could interject, Appellant then argued that application of the mandatory minimum “takes away the discretion of the court to impose a lesser sentence.” N.T., 3/25/02, at 4. Appellant proceeded to argue, based on the differences between Appellant’s and co-defendant’s conduct, that Appellant’s case warranted precisely the lesser sentence precluded by application of the § 9712 mandatory minimum. The court cut Appellant’s counsel off, however, foreclosing further argument:
I think case law is supportive of the Commonwealth’s position. I have no discretion.
Mr. Dixon, on bill of information 0022, January Term 2002, where the jury found you guilty of Conspiracy to Rob, this court sentences you to five to ten years in a state correctional institution, [and] 207 dollars cost[s] of court.
N.T., 3/25/02, at 5. Appellant’s judgment of sentence, therefore, was precisely the minimum sentence permissible given the trial court’s reading of the law to require imposition of the § 9712(a) mandatory minimum sentence of five years.
On direct appeal, Appellant contested the validity of the application of § 9712(a) to an unarmed co-conspirator. The Superior Court, noting that it repeatedly has rejected this argument, see, e.g., Commonwealth v. Chiari,
II. Waiver
Preliminarily, we must determine whether Appellant failed in the trial court to raise his challenge to the application of 42 Pa.C.S. § 9712, and, if so, whether this failure waived any later challenge on appeal. The Superior Court disregarded the first part of this inquiry, and summarily disposed of the latter part with a single sentence: “As Appellant’s claim implicates the legality of his sentence, Appellant may appeal as of right.” Super. Ct. Slip Op.
The Commonwealth contends that Appellant failed to preserve the argument raised before this Court — -that § 9712 in plain terms cannot apply to enhance the sentence of an unarmed co-conspirator. Rather, it argues, at sentencing “[Appellant] objected to the imposition of the mandatory minimum on the grounds that the jury had supposedly convicted him of conspiracy to commit theft, to which the mandatory minimum does not apply, and that the sentence violated Apprendi v. New Jersey,
Appellant, who did not anticipate the waiver argument in its principal brief to this Court, responds in his Reply Brief that the Commonwealth has misconstrued the record. Specifically, he argues that while he initially allowed that he “would certainly have to concede the mandatory issue,” Reply Brief for Appellant at 2 (quoting N.T., 3/25/02, at 2), he did so only after submitting three specific challenges to the trial court— “one directed to verdict; one directed to Apprendi ...; and one directed to the concern raised in this appeal.” Reply Brief for Appellant at 3. He then quotes an exchange in which he argued that “applying the mandatory minimum takes away the discretion of the court to impose a lesser sentence” and that his case called for precisely the sort of downward deviation precluded by a mandatory sentence. Reply Brief for Appellant at 3 (quoting N.T., 3/25/02, at 3-4). The court, however, cut off Appellant’s argument, observing, “I think case law is supportive of the Commonwealth’s position. I have no discretion.” N.T., 3/25/02, at 4. Focusing on the trial court’s statement precluding further argument on the application of the mandatory minimum sentence, Appellant argues that “[w]here, as here, the trial court correctly recognized [A]ppellant’s claim in its nascency [sic ], but cut [A]ppellant off before it could be fully articulated based upon a clear line of extant appellate authority, it would be unreasonable and unfair to hold the claim waived.” Reply Brief for Appellant at 4.
While the Commonwealth raises a colorable claim that Appellant did not expressly preserve the application of § 9712 to an unarmed co-conspirator in the robbery here at issue, Appellant ultimately must prevail. In context, the relevant colloquy reveals that Appellant exhausted his argument regarding whether the conspiracy conviction concerned the underlying theft or robbery charges, and indeed the court resolved any uncertainty when it stated on the record that the conspiracy charge applied to robbery. Upon losing that argument, Appellant shifted gears to make a brief argument under Apprendi and then segued seamlessly into his argument that the consequence of the mandatory
The Commonwealth is correct insofar as Appellant never explicitly argued that § 9712 cannot apply in this case because Appellant was not armed. Whether this deficiency occurred because counsel did not entirely appreciate the issue or because the court cut counsel off mid-argument to preempt any further discussion is something we cannot know at this time. What we do know is that counsel argued that Appellant’s conduct differed from his co-defendant’s to an extent counsel believed should have taken Appellant’s case outside application of the mandatory minimum. The trial court clearly ruled it had “no discretion.” N.T., 3/25/02, at 5. The court having made itself clear, we will not punish counsel for declining to resist the trial court’s unequivocal effort to cut off conversation on this point. Accordingly, because we disagree with the Commonwealth’s characterization of Appellant’s argument before the trial court, and find implicit in that argument the § 9712 argument raised before the Superior Court and now this Court, we conclude that Appellant preserved the issue for appellate review.
III. The Mandatory Minimum Sentence
This brings us to the question that lies at the heart of this case: Whether the mandatory minimum sentence set forth in 42 Pa.C.S. § 9712 applies to an unarmed co-conspirator where his accomplice visibly possesses a firearm during the commission of the underlying crime. Because this presents a pure question of law, our standard of review is de novo and the scope of our review is plenary. Craley v. State Farm Fire & Cas. Co.,
The instant question requires us to interpret § 9712. In interpreting a statute, we must ascertain and effectuate the intention of the General Assembly. See 1 Pa.C.S. § 1921(a). When statutory language is clear and free from all ambiguity, it generally furnishes the best indication of legislative intent; we must not disregard the statutory language under the pretext of pursuing its spirit. 1 Pa.C.S. § 1921(b); Bowser v. Blom,
Section 9712 provides, in relevant part,
(a) Mandatory Sentence.— ... [AJny person who is convicted in any court of this Commonwealth of a crime of violence as defined in section 9714(g) ... shall, if ike person visibly possessed a fireann or a, replica of a firearm, whether or not the firearm or replica was loaded or functional, that placed the victim in reasonable fear of death or serious bodily injury, during the commission of the offense,be sentenced to a minimum sentence of at least five years of total confinement notwithstanding any other provision of this title or other statute to the contrary. Such persons shall not be eligible for parole, probation, work release or furlough.
(c) Authority of court in sentencing. — There shall be no authority in any court to impose on an offender to which this section is applicable any lesser sentence than provided for in subsection (a) or to place such offender on probation or to suspend sentence.
42 Pa.C.S. § 9712 (underscoring added). Section 9714(g), from which § 9712 draws its definition of “a crime of violence,” provides:
[T]he term “crime of violence” means murder of the third degree, voluntary manslaughter, aggravated assault ..., rape, involuntary deviate sexual intercourse, aggravated indecent assault, incest, sexual assault, arson ..., kidnapping, burglary of a structure adapted for overnight accommodation in which at the time of the offense any person is present, robbery as defined in 18 Pa.C.S. § 3701(a)(l)(i), (ii) or (iii) (relating to robbery), or robbery of a motor vehicle, or criminal attempt, criminal conspiracy or criminal solicitation to commit murder or any of the offenses listed above, or an equivalent crime under the laws of this Commonwealth in effect at the time of the commission of that offense or an equivalent crime in another jurisdiction.
42 Pa.C.S. § 9714(g).
The question before us lies not in the validity of § 9712,
Appellant insists that the language of § 9712(a) is plain, and that the Superior Court’s two decades of decisions inconsistent with that language must be reversed. The Commonwealth insists that the Superior Court’s conclusions are valid, and moreover that amendments to related provisions in the wake of the Superior Court’s decisions have signaled the legislature’s acquiescence to those rulings. While we are not eager to disturb established precedent, where caselaw has obscured the legislative intent manifest in its most trustworthy source, the statutory language, we cannot simply fall back on an attenuated assertion of sub silentio legislative acquiescence and wash our hands of the stain.
Viewed in isolation, § 9712(a) could not be more clear that it is “the person” who
We begin by reviewing the Superior Court decision from which the instant challenge derives. In Commonwealth v. Williams, two young men robbed a man, with Williams’ co-conspirator threatening their victim with a pellet gun.
Nor are we the first to express reservations regarding the court’s approach in Williams. Following close on the heels of that case, another panel of the Superior Court applied Williams under similar circumstances but expressed grave doubts about the correctness of that decision. In Commonwealth v. Grimmitt,
When causing a particular result is an element of an offense, an accomplice in the conduct causing such result is an accomplice in the commission of the offense, if he acts with the kind of culpability, if any, with respect to that result that is sufficient for the commission of the offense.
The court then observed that, while § 306 assesses equal culpability for an accomplice, courts may impose “[disparate sentences” on co-conspirators in a given crime “so long as they accurately reflect the degree of culpability or the background of each defendant.” Id. (citing Commonwealth v. Landi,
is produced by the person wielding the firearm. It is that person who places the victim in greatest fear, and who can, with the slight pull of the trigger, kill or gravely injure the victim. To subject the armed felon to more severe punishment than the unarmed felon because of the immediate danger that the former presents to the victim would seem reasonable.
Id. Finally, the court noted that the courts are bound to construe penal provisions strictly in favor of life and liberty, see Wooten,
The Commonwealth, like the Superior Court in Williams and its progeny, avoids the plain language of § 9712. Instead, somewhat tendentiously, the Commonwealth argues that “[i]n 1995, the General Assembly amended § 9712, greatly expanding the types of crimes to which the mandatory minimum applied and expanding the statute to include conspiracy and solicitation to commit the enumerated offenses.” Brief for Appellee at 10 (emphasis in original). From this, the Commonwealth infers legislative intent “to include both armed and unarmed conspirators, because a conspirator need not even be present when the overt act occurs.” Brief for Appellant at 10-11. This amendment, the Commonwealth concludes, amounts to ratification of the Superior Court’s pre-1995 cases applying the mandatory minimum to unarmed co-conspirators.
The Commonwealth’s representation of the 1995 amendments, while not inaccurate, partially misinterprets the effect of those amendments in ways that call into doubt the wisdom of construing the amendments as a ratification of Superior Court precedent. In 1995, the legislature overhauled several aspects of Titles 18 (Crimes and Offenses) and 42 (Judiciary and Judicial Procedure), including § 9712. See Act of Oct. 11, 1995, Pub.L. 1058, No. 21 (Spec.Sess. No. 1), § 4. In the only changes to § 9712 material to this section, the legislature replaced the express definition of to whom the mandatory sentence applied in the former § 9712(a) with a
[a]ny person who is convicted in any court of this Commonwealth of murder of the third degree, voluntary manslaughter, rape, involuntary deviate sexual intercourse, robbery as defined in 18 Pa.C.S. § 3701(a)(1)®, (ii) or (iii) (relating to robbery), aggravated assault as defined in 18 Pa.C.S. § 2702(a)(1) (relating to aggravated assault) or kidnapping, or who is convicted of attempt to commit any of these crimes.
The 1995 amendment excised this language in favor of a cross-reference to “a crime of violence as defined in section 9714(g) (relating to sentences for second and subsequent offenses),” which then provided
(g) Definition. — As used in this section, the term “crime of violence” means murder of the third degree, voluntary manslaughter, aggravated assault as defined in 18 Pa.C.S. § 2702(a)(1) or (2) (relating to aggravated assault), rape, involuntary deviate sexual intercourse, arson as defined in 18 Pa.C.S. § 3301(a) (relating to arson and related offenses), kidnapping, burglary of a structure adapted for overnight accommodation in which at the time of the offense any person is present, robbery as defined in 18 Pa.C.S. § 3701(a)(1)®, (ii) or (iii) (relating to robbery), or robbery of a motor vehicle, or criminal attempt, criminal conspiracy or criminal solicitation to commit murder or any of the above offenses listed above, or an equivalent crime under the laws of this Commonwealth in effect at the time of the commission of that offense, or an equivalent crime in another jurisdiction.
42 Pa.C.S. § 9714(g) (reflecting the language of the subsection until the 2000 amendment took effect sixty days after May 10, 2000). Thus, the amendment cross-referencing § 9714(g) in effect extended the body of crimes to which § 9712 applied to include arson-related crimes, burglary of a structure, robbery of a motor vehicle, and also added crimes of attempt, conspiracy, or solicitation pertaining to the enumerated offenses.
The Commonwealth argues, in principal, that the legislature’s addition of “solicitation” to the applicable definition of “crime of violence” signifies the legislature’s intent to accept the Superior Court’s interpretation of § 9712(a) to apply to unarmed co-conspirators as well as the party or parties who visibly possessed firearms during the commission of the underlying crime. It argues that because sometimes a party guilty of solicitation to commit a crime will not be present at the scene, the legislature must have intended that even a co-conspirator not present during the commission of the offense might incur the mandatory minimum sentence where his cohort brandished a firearm during the commission of the underlying crime. That one soliciting a criminal act often will not be present at the scene of the crime, however, does not preclude such a party from actively participating in the crime. One might posit, for example, one person hiring another to assist him in the active commission of a crime. The same is true of the other categories of defendants included in the 1995 amendments to the definition of “crime of violence.” Thus, nothing in these newly added qualifying offenses requires us to conclude that the legislature intended to ratify existing precedent.
Further supporting these observations, Appellant notes that the legislature, in enacting § 9712.1, signaled its ability expressly to distinguish an armed party to a crime from his unarmed co-conspirator as follows:
(a) Mandatory sentence. — Any person who is convicted of a [predicate drug-related offense], when at the time of the offense the person or the person’s accomplice is in physical possession or control of a firearm, whether visible, concealed about the person or the person’s accomplice or within the actor’s or accomplice’s reach or in close proximity to the controlled substance, shall likewise be sentenced to a minimum sentence of at least five years of total confinement.
42 Pa.C.S. § 9712.1 (emphasis added). Appellant directs us to our decision in Commonwealth v. Bigelow,
The Commonwealth responds:
Unlike § 9712, ... § 9712.1 does not apply to persons convicted of conspiracy or solicitation. Moreover, it is absurd to contend that the inclusion of language in a statute enacted in 2004, more than twodecades after § 9712 was first enacted and ten years after the General assembly amended § 9712 without choosing to “correct” what [Appellant] deems a longstanding “incorrect” determination of legislative intent, is more instructive of legislative intent than subsequent legislative action on the statute in question.
Brief for Commonwealth at 12 n. 5. The Commonwealth, however, indulges a certain degree of sophistry when it rejects as absurd the utility of looking to § 9712.1 to inform the meaning of relevant language in § 9712(a) while its own argument substantially relies on § 9714, a provision with a far more autonomous role in the larger statutory scheme than § 9712.1, which in effect merely expands the function of § 9712(a) into the distinct realm of drug-related crime. Without a clear basis to distinguish the relevance of the two different modifications to an existing statute, we must consider both as probative of legislative intent insofar as a lack of clarity requires us to look outside the plain language of § 9712(a) at all.
There is, to be clear, a colorable argument that the legislature’s failure to amend § 9712 to resist the effect of the Superior Court’s pre-1995 holdings applying the mandatory minimum sentence to unarmed co-conspirators manifested its acquiescence to those rulings. The rules of statutory construction urge us to presume “[t]hat when a court of last resort has construed the language used in a statute, the General Assembly in subsequent statutes on the same subject matter intends the same construction to be placed upon such language.” 1 Pa.C.S. § 1922(4). Moreover, notwithstanding the clear import of § 1922(4) that it applies only where this Court has furnished a construction, this Court has recognized the extension in principle of § 1922(4)’s presumption to cases decided by the Superior Court.
It has been held, and rightly so, that where a decision of the Superior Court construing a statute was never modified by the Supreme Court, the presumption was that when the legislature subsequently enacted a similar statute dealing with the same subject matter, the legislature intended the same construction to be placed on the language of the subsequent statute.
In re Estate of Lock,
The question thus becomes whether our mandate to find legislative intent in the language of the statute must yield to the Lock presumption that the legislature declined to modify the statute in relevant ways in reliance on the then-prevailing body of law in the intermediate appellate court. It is true that in 1995, the legislature moved the description of to whom the § 9712(a) mandatory minimum sentence would apply to § 9714(g) and modified that definition to include the inchoate crimes of conspiracy and solicitation, the latter at least suggesting that one need not even be present at the commission of the crime in question to be guilty of a “crime of violence,” just as the Commonwealth has observed. Nevertheless, § 9712(a) provides in unequivocal and unambiguous language that it applies to a person convicted of a crime of violence “if the person ” visibly possessed a firearm or firearm replica during the commission of the crime. To read the language for what it appears to say neither brings any two sections of the statute into conflict nor renders any part of either section legally ineffective, in light of the fact that the § 9714(g) definition does double duty, furnishing a relevant definition for itself as well as § 9712(a). Reading these provisions together, according to their plain meaning, requires us to agree that a crime of violence occurs even in case of the solicitation by an absent party. Under § 9712(a), however, unless that soliciting party “visibly possesses” a firearm or firearm replica “during the commission of the crime” he does not fall within the class of offenders to which § 9712(a) applies.
That we have declined, until now, to address the Superior Court’s decisions on this issue, while perhaps regrettable, cannot be used as a brickbat to prevent us from bringing the decisional law of this Commonwealth into line with the plain language of § 9712(a). The legislature has proved time and again — in its deadly weapon sentence enhancement, in § 9712.1 — that it recognizes the value of expressly providing that a mandatory minimum sentence hinging on possession (§ 9712.1) or visible possession (§ 9712) of
IV. Conclusion
For all the foregoing reasons, and in light of the unambiguous language of 42 Pa.C.S. § 9712(a), we hold that the mandatory minimum sentence provided by that section applies only to those parties culpable for a crime of violence as defined by 42 Pa.C.S. § 9714(g) who visibly possess a firearm or firearm replica during the commission of the crime. Thus, unarmed co-conspirators do not fall within the ambit of § 9712(a). The Superior Court’s contrary order is reversed and the case remanded for proceedings consistent with this Opinion.
Notes
. Section 9712 provides, in relevant part:
(a) Mandatory Sentence.— ... [A]ny person who is convicted in any court of this Commonwealth of a crime of violence as defined in section 9714(g) ... shall, if the person visibly possessed a firearm or a replica of a firearm, whether or not the firearm or replica was loaded or functional, that placed the victim in reasonable fear of death or serious bodily injury, during the commission of the offense, be sentenced to a minimum sentence of at least five years of total confinement notwithstanding any other provision of this title or other statute to the contrary. Such persons shall not be eligible for parole, probation, work release or furlough.
* * * *
(c) Authority of court in sentencing. — There shall be no authority in any court to impose on an offender to which this section is applicable any lesser sentence than provided for in subsection (a) or to place such offender on probation or to suspend sentence.
42 Pa.C.S. § 9712.
. Also present was Ms. Angel Ruffin, who is Van Leer’s sister, Appellant’s and Veney’s cousin, and also was, it turns out, Cunningham’s girlfriend.
. See 18 Pa.C.S. §§ 3701, 903, respectively.
. Indeed, it is difficult to read the transcript in any other way. Although he originally was charged with theft, Appellant was arraigned only for robbery and criminal conspiracy, and therefore presumptively was tried for robbery and conspiracy to commit robbery. Notes of Testimony, 2/12/02, at 4-5.
. Plainly, Appellant referred to the United States Supreme Court's decision in Apprendi v. New Jersey,
. The parties do not dispute that robbery is a crime of violence pursuant to § 9714(g), and Appellant has not renewed his argument before this Court that his conviction for criminal conspiracy concerned the original charge of theft, which the Commonwealth did not pursue at trial.
. We upheld a predecessor version of § 9712 against constitutional challenge in Commonwealth v. Wright,
. Mr. Justice Castille finds fault in our refusal to ratify twenty years of Superior Court precedent. No passage of time, however, can diminish this Court’s mandate to glean legislative intent from the language chosen by the legislature where that language is clear and free from ambiguity, the guiding principle of statutory interpretation we find dispositive in this case. See Bowser,
. The language of § 9712(a) differed then from its current form, but in no respect material to the instant appeal. Then, as now, the statute imposed its penalty against ”[a]ny person” convicted of certain predicate offenses "if the person visibly possessed a firearm during the commission of the offense.” See infra at 377-80,
. Judge Hoffman concurred in the result.
. The same provision in the current statute provides: "Provisions of this section shall not be an element of the crime,” and goes on to establish a preponderance of the evidence standard of proof for application of the mandatory minimum sentence to be assessed by the trial court. 42 Pa.C.S. § 9712(b).
. The deadly weapons enhancement now is found at 204 Pa.Code § 303.10.
. Section 9714(g) was again amended in 2000 to add "aggravated indecent assault, incest, [and] sexual assault" to the enumerated crimes of violence. See Act of May 10, 2000, Pub.L. 74, No. 18, § 2.
. This extension of § 1922(4) beyond its terms to encompass lines of Superior Court precedent this Court has yet to disturb would seem to hinge at least in part on the idea that our decision not to review such cases is, itself, a form of acquiescence. But as this Court's then-Justice Samuel J. Roberts once observed, "A denial [of allocatur ] may merely reflect that the particular controversy was not the proper vehicle for deciding a question of law or that it was not presented in the proper posture.” Hon. Samuel J. Roberts, Foreword, Pennsylvania Supreme Court Review, 1980, 54 Temple L.Q. 403, 407 (1981); cf. Commonwealth v. Tilghman,
By contrast, Mr. Justice Castillo would find meaning in the “dozens of additional cases” it posits in which "Superior Court panels rejected Section 9712 claims in unpublished memorandum decisions applying 'Williams, and where allocatur was sought and review denied by this Court.” Diss. Op. of Justice Caslille at 391 n. 1,
. Mr. Chief Justice Cappy raises valid concerns regarding the soundness of our decision in Lock. That we acknowledge those concerns as valid, however, does not mean, as Mr. Justice Castille assumes, that we believe Lock was wrongly decided. Our disposition of this case, rather, does not depend on resolving these concerns, as it hinges solely on the plain language of §§ 9712(a) and 9714(g). As noted, where the plain language of a statutory provision clearly signals legislative intent, we do not disregard that language in pursuit of its spirit. 1 Pa.C.S. § 1921(b). We have addressed the parties' arguments from extra-textual indicia of legislative intent only to reject them as failing to demonstrate any reason to depart from the plain language of the relevant provisions. Moreover, because we find the statutory language conclusive of legislative intent, we need not reach questions concerning the effect of 1 Pa.C.S. § 1922(4) and the meaning and validity of our decision in Lock, because § 1922(4) and Lock speak to one of several means by which we discern legislative intent when the language in question is less than conclusive. We find it ill-advised, generally, to consider substantial questions not squarely presented and fully argued by the parties below and before this Court. See Commonwealth v. Mitchell,
Concurrence Opinion
concurring.
I join the majority opinion, save for its analysis of Section 1922(4) of the Statutory Construction Act and its treatment of our decision in Estate of Lock,
The rule of statutory construction found at 1 Pa.C.S. § 1922(4) instructs “That when a court of last resort has construed the language used in a statute, the General Assembly in subsequent statutes on the same subject matter intends the same construction to be placed upon such language.” Breaking with prior case law,
The Majority attempts to surmount the presumption by suggesting that the Court’s “mandate to find legislative intent” must not yield to the Estate of Lock presumption. Majority Opinion at 385,
Instead of engaging in the exercise of what our Court would require of itself by way of a burden to rebut the presumption created by the Superior Court’s interpretation of a statute, I believe that the presumption based upon Superior Court case law as articulated in Estate of Lock is itself what is faulty and should be repudiated.
First, Estate of Lock is in direct contravention of the plain language of the Statutory Construction Act. Section 1922(4) of the Act focuses on an interpretation of a statute by the “court of last resort.” There is no question that the Superior Court is not the “court of last resort” in Pennsylvania-it is the Supreme Court of Pennsylvania. See, e.g., Commonwealth v. Wallace,
Second, Estate of Lock’s presumption regarding legislative intent hinges on the existence of an intermediate court decision which has not been modified by our Court. As noted by the Majority, this approach fails to appreciate that our denial of allocatur of an intermediate court decision is not an endorsement of or rejection of the intermediate appellate court’s decision. Majority Opinion at 384-85 fn.14,
Finally, and perhaps most importantly, the continued use of Estate of Lock as a guide to statutory interpretation would diminish, at least to some extent, this Court’s power to interpret a legislative enactment and to freely reject an intermediate appellate court’s interpretation of a statute. This limitation on review is inconsistent not only with the structure of our Unitary Judicial System, which places the Supreme Court at its head, but also with our long-established standard of review concerning .matters of statutory interpretation — de novo review. To give the intermediate appellate court’s prior interpretation presumptive value, would be to give greater deference to that lower intermediate
For the reasons stated above, I would overrule Estate of Lock, and conform again our statutory construction jurisprudence to the clear terms of Section 1922(4) from which it deviated, and thus, confine the presumptive intent of the Legislature to statutory interpretations by the “court of last resort” which is, the Pennsylvania Supreme Court.
. See, e.g., Parish v. Philadelphia Zoning Board of Adjustment,
. While I do not lightly condone the overruling of our prior precedent, see, e.g., Grimaud v. Commonwealth,
. The Majority offers that while it is deciding this appeal "solely on the plain language” of the relevant statutes, it nevertheless believes itself compelled to address other arguments regarding the intent of the Legislature and in doing so, speaks to import of Estate of Lock. In seemingly contradictory fashion, the Majority characterizes its discussion regarding Estate of Lock as obiter dicta, "we need not reach questions concerning ... the meaning and validity of our decision in Lock ...," Majority Opinion at 386 fn. 15,
Dissenting Opinion
dissenting.
I join the Dissenting Opinion by Mr. Justice Eakin, as I agree that the issue upon which the Majority grants relief obviously was waived.
The Court today disapproves twenty years of Superior Court precedent construing 42 Pa.C.S. § 9712, precedent which became the governing construction of the statute when this Court elected not to exercise review soon after it came into existence (notwithstanding that a panel of the Superior Court had immediately questioned the wisdom of the precedent), or in the years since, precedent which the Superior
I recognize that this Court, in recent years, has undertaken to modify traditional notions of vicarious liability, thereby narrowing the exposure a criminal defendant faces when charged as an accomplice or conspirator. See generally Commonwealth v. Hannibal,
In addition to the fact that I am not convinced that the reading of the statute by the panel in Commonwealth v. Williams,
Second, irrespective of any principle of construction or presumption, in the Lock era, the General Assembly has shown itself quite capable of responding to what it believes is a judicial misinterpretation of a statute by an intermediate appellate court. See, e.g. Commonwealth v. Eddings,
. Furthermore, I note that “declining to resist” a "trial court's unequivocal effort to cut off conversation” is not a valid reason for failure to press, or to make clear, the specific contours of an objection. Majority Op. at 372,
. The Majority notes two instances where this Court denied allocatur in cases where published decisions of the Superior Court applied Commonwealth v. Williams,
. I am inclined to agree with both the Majority Opinion and the Chief Justice that Lock was wrongly decided, since the Superior Court most certainly is not a court of last resort. But, whether Lock was right or wrong in some absolute sense, it was the law during the ascendancy of the (unreviewed) Williams rule and its holding triggers the presumption of legislative agreement/acquiescence.
. As it is, of course, the General Assembly can corred the Court's interpretation today by amending the Section to read, "shall, if the person, or the person's conspirator or accomplice, visibly possessed, etc.”
Dissenting Opinion
dissenting.
I dissent because I believe Appellant waived his challenge to the application of 42 Pa.C.S. § 9712, by failing to raise the issue before the trial court.
“Issues not raised in the lower court are waived and cannot be raised for the first time on appeal.” Pa.R.A.P. 302(a). Appellant failed to challenge the application of § 9712 before the trial court. At sentencing, Appellant’s counsel stated, “With regard to [Appellant], I did speak to my appeals unit. I would certainly have to concede the mandatory issue with one additional argument.” N.T., 3/25/02, at 2. Counsel then argued the jury convicted Appellant of conspiracy to commit theft. The court disagreed, determining the jury found Appellant guilty of conspiracy to commit robbery. Id., at 3, 5. Next, Appellant’s counsel argued his sentence violated Apprendi v. New Jersey,
Furthermore, your honor, applying the mandatory minimum takes away the discretion of the court to impose a lesser sentence. If there is any case that cries out for a lesser sentence, it would be this particular case. You heard the codefendant testify in this matter and the court was aware of the discusting [sic] behavior of the codefendant throughout the trial. The jury clearly found my client not guilty of robbery. They found him guilty of conspiracy and I would submit that we have an inconsistency argument for a motion for acquittal.
[Appellant] is not a threat to society, your honor. This is not a gentleman who needs the mandatory minimum applied to him. As I said, when you apply the mandatory, you take away the court’s discretion and you, yourself, recognize the clear difference of my client’s behavior throughout the trial process, as well as the abhorrent behavior of the codefendant. That, itself, would deviate from applying the mandatory and sentencing my client to a—
Id., at 3-4. The court interrupted Appellant’s argument, stating, “I think case law is supportive of the Commonwealth’s position. I have no discretion.” Id., at 5.
Appellant failed to argue § 9712 cannot apply to him because he was not armed. Rather, Appellant argued the court should not apply the mandatory minimum since he is not a threat to society, and because of the difference in Appellant’s and his co-defendant’s behavior during trial. Appellant urged the court exercise leniency by not applying the sentencing enhancement; he did not assert the enhancement did not apply because he did not possess a firearm during the commission of the underlying
“[CJlaims concerning the illegality of the sentence are not waivable.” Commonwealth v. Vasquez,
I, like the majority, recognize the uncertainty regarding what challenges implicate sentence legality. Majority Op., at 370-71,
. The majority suggests finding Appellant's challenge to the application of § 9712 waived would “punish counsel for declining to resist the trial court’s unequivocal effort to cut off conversation on this point.” Majority Op., at 372,