*1 (1) Rudlоff, under her an insured father’s covering a motor vehicle policy A injured and I by person policy, at the is to UIM benefits occupied entitled exclusionary language time of the accident. in believe (2) to from policy prevent which seeks her covering a not policy A motor vehicle respect seeking express in accident to benefits violates the involved with these an insured. person which the inured is not be terms the MVFRL should upheld. application 1733. Absent Pa.C.S.A. exclusion, it undisputed of the household is entitled to UIM bene- Ms. Rudloff policy
fits the Nationwide as a rela- under residing
tive her father’s household. Assembly in
The 75 Pa.C.S.A. General 1733(a)(2) sought protection to offer Ms. Rudloff who seek recov- those such as Pennsylvania, COMMONWEALTH covering a ery policy motor vehicle from Appellee, accident not under which involved they The exclusion under the are insured. facts to bar operate of this case should MAGLIOCCO, Appellant. Eric J. contrary provi-
recovery express sions of the MVFRL. Superior Pennsylvania. Further, application the exclusion Nov. Argued protect not seek to this case does 11, 2002. Sept. Filed against same harms envisioned by Majority. injured cases cited purchase insur-
party in this case did UIM it in an amount purchased
ance. She
equal purchased her father
his with Nationwide. The stated policy reducing increasing
public policy en- support
costs does of insurance pres- the exclusion under the
forcement of facts, party seeking UIM
ent where it on her vehicle purchase did own
benefits as an
and seeks to recover insured exhausting after policy
her father’s that Ms. coverage.
her fact own UIM Hanover, coverage from purchased
Rudloff Nationwide, likely from her father on the costs impacted overall to have sought pur- Hаd she too
of insurance. Nationwide, it is most coverage
chase have entitled
likely family would been insuring all as a reward for discount company. cars with same family’s facts Thus, I the distinct conclude application not warrant
of this case do Ms. Majority. cited
the case law
¶ 2 racially This matter arises out aof charged City incident in the Philadel- phia Magliocco between and two African- American children. On ten- year-old Fatima Smith and her cousin Ta- walking mara were down the 1300 block of Magliocco, South Carlisle Street. resi- neighborhood, of the dent arose from his porch challenged front and asking, the two you looking “What are at?” When one of girls him speak- asked to whom he was ing Magliocco responded, “you, you black nigger.” Magliocco disappeared then into bat, his house and returned with a baseball which he over his swung head as he contin- girls using profani- ued to berate the both ty epithets. and racial swinging While still bat, Magliocco threatened, going “I’m get you. going to I’m to make sure that there are niggers no more who live on this girls, block.” of the One who did fact Defender, Rosalsky, Peter Public Phila- Street, live on the 1300 block of Carlisle delphia, appellant. ran to her house to call police. Two Marshall, Catherine L. Asst. Dist. Atty., Philadelphia Department Police officers Commonwealth, Philadelphia, for appellee Magliocco standing arrived and оbserved (submitted). house, steps on the front of his waving the bat, yelling that he “going was to kill McEWEN, P.J.E., JOHNSON, Before: every nigger the block.” When one of JOYCE, JJ. officers, Evans, Damian Magliocco told bat, drop Maglioccoresponded, “I’m JOHNSON, OPINION BY J.: you talking nigger,” but then ¶ 1 Magliocco Eric J. appeals judg- dropped bat doorway of his ment of imposed sentence following his home and walked inside. Police then ar- conviction of Ethnic Intimidation and Pos- rested him. (PIC). session of an Instrument of Crime trial, Following a bench the Honor- See §§ (respectively). Magliocco able Joan A. Brown convicted PIC, Concerning Maglioc- his conviction of PIC, Ethnic acquit- Intimidation and but co contends that the evidence failed to him Magliocco ted of terroristic threats. satisfy all speci- elements Extraordinary filed a “Motion for Relief’ fied Crimes Code section 907 on the denied, which the court and at a later date of his criminal Concerning acts. his sentencing hearing the imposed Intimidation, conviction for Ethnic Magli- years’ reporting probation sentence of two occo contends that the evidence failed mandatory with the condition of mental establish his of a predicate conviction of- counseling. Magliocco ap- health filed this required by fense Crimes section Code reasons, and in peal, preliminary supplemental 2710. For the affirm following we Magliocco’s Complained Statements of Matters of on PIC conviction but reverse his Appeal, challenged sufficiency conviction of Ethnic Intimidation. Sullivan, 472 (quoting evidence to either of his convic- sustain (1977)). Magliocco following raises the tions. now We will questions for review: our resulting on the basis reverse the verdict legal insufficiency where the testi Is the evidence insufficient *3 for Possessing
sustain the conviction mony inherently that a “is so unreliable of due to failure Instruments Crime it to no upon verdict based could amount prove to that baseball bats are com- Karka conjecture.” more surmise or monly criminal purposes? for used omitted). ria, (citations at 1170 625 A.2d insufficient to Is the evidence question, In of first support 5 his for In- sustain the conviction Ethnic Magliocco ad contends that the evidence failure to the prove timidation due to satisfy statutory duced failed to at trial “other element of offense” “instrument crime” and was definition of of crime? to convic insufficient sustain his therefore Appellant Brief for at 8. 7-8 tion Brief for at Appellant of PIC. ¶ Magliocco’s questions 4 two each raise 907(d)). This is a (quoting 18 Pa.C.S. evidentiary sufficiency. When issues statutory for question of construction a reviewing challenge sufficiency plenary. which our standard review is evidence, we must determine “wheth- Hockenbury, v. 549 See Commonwealth er, viewing admitted at all the evidence (1997). 1334, 527, n. 3 Pa. 701 A.2d 1336 trial, all together with reasonable infer- Magliocco argues that the definition therefrom, light ences in the most favor- July 7, PIC on when this effective Commonwealth, able to the the trier of occurred, “instru incident recognized each fact could have found that element of “com things crime” those ments of was charged supported offense[] Brief monly” used for criminal purposes. and in law to evidence inferences sufficient for at 7-8. the Com Appellant Because doubt.” prоve guilt beyond reasonable on failed to evidence monwealth introduce Jackson, v. Commonwealth commonality bats with which baseball Normally, A.2d evi- crime, Ma are used commission support dence is deemed sufficient cannot gliocco concludes his conviction underlying if: convictions Id. The trial court conclud be sustained. testimony offered establish there operative ed that the definition each material element of the crime Magliocco’s had date of conduct charged prove and to commission the re been amended to delete previously beyond offense accused a rеason- commonality. Trial Court quirement of credibility question doubt. The able 3/2/01, Accordingly, 5-6. Opinion, and the will jury is left verdict the Commonwealth concluded jury not be if the determines disturbed evidence had in fact adduced sufficient worthy of belief. the evidence is Trial conviction of PIC. Magliocco’s sustain Karkaria, Commonwealth v. 3/2/01, at 6. Opinion, (1993) (citations omit 625 A.2d us to argument requires Magliocco’s ted). all, free to factfinder is believe ver- competing apparent resolve conflict evidence, or none part “[t]he 1995, 907. Prior to sions of Section by the facts and circumstances established defined crime of PIC as Crimes Code absolutely in ‘nеed not be follows: defendant’s inno compatible with the ’ Possessing instruments Hodge, cence.” Commonwealth (1995) Pa.Super. 387-88
(a) generally.— Criminal Instruments Section See Act of P.L. A person (effective commits misdemeanor of the 27, § No. days after degree first if he possesses any instru- enactment). date of In apparent response ment of crime employ with intent to it reasoning, Justice Castille’s the amend- criminally. ment deleted the word the definition of “instrument of crime.” statute then de- crime,” text, fined “instrument of in pertinent the official the deletion appears part, bracketed, as follows: in bold-face type, as follows:
(2) anything commоnly
(2)
used for criminal
[commonly]
anything
used for crim-
purposes
possessed
by the actor
purposes
possessed
inal
by the actor
*4
under
manifestly
circumstances not
ap-
manifestly
circumstances not
ap-
propriate for lawful
it may
uses
have.
propriate for
may
lawful uses it
have.
6,
Act
1482,
of December
P.L.
No.
§
Id. See also 1 Pa.C.S.
1951 (prescribing
334, § 1.
manner which deletions from statutory
¶
7 In
Pennsylvania
Supreme
language
designated).
must be
applied
the foregoing definition to
¶
legislature
again amend-
legal
determine the
sufficiency of evidence
ed Section 907. The amendment included
where,
sustain a conviction for PIC
as
extensive
language
additional
to proscribe
here, the defendant used a baseball bat.
as a third-degree felony the use or posses-
See
Commonwealth v. Ngow, 539 Pa.
sion
body
during
armor
the commission
(1995) (Filed 1/11/95).
¶
Magliocco аrgues
8 Within six months
co’s acts.
that the re-
of the Court’s
in Ngow,
legislature
decision
appearance
amended
word
con-
Secondly,
provides
the Act
an effective amendment of the
stitutes
where,
here,
the com-
of a
statutory language reintroducing
the latest amendment
monality requirement
previous
incorporate
deletions
statute does
Appellant
Brief for
amendments,
amendment deleted.
those dele-
by prior
made
reasons,
for
disagree
at 11-12. We
two
nevertheless,
to be
tions remain effective
Statutory
both rooted
Construction
the current amendment. See
read into
Act.
as fol-
1954. Section
reads
lоws:
man-
Initially,
prescribes
Act
datory
designation
print
process
Merger
subsequent
§ 1954.
lan-
existing
new
or deletion of
language
amendments
statutory material.
guage from
See
a statute has been more
Whenever
governing
C.S.
Section
amended,
latest amendment
once
statutes,”
amendatory
di-
“[p]rinting of
original
read into the
shall be
rects,
part,
that:
pertinent
such
previously amended and not into
Legislative
Refer-
[of
Director
rule
originally enacted. This
statute as
printed
ence
shall cause
Bureau]
applies
previous
whether or
*5
brackets,
words, phrases,
the
or
between
to and whether
amendment
referred
statute,
any,
if
provisions
existing
of the
in the
language
incorporated
or not
its
elimi-
which have been stricken out or
in
latest amendment.
insertions
If
adoption
nated
of the amend-
by
and the deletions
the statute made
ment,
in
printed
he shall cause to
be
in-
are not
previous
amendment
all
underscoring
or with
new
italics
latter,
nev-
corporated
they
shall
words,
any,
if
phrases
provisions,
or
be read
the later amend-
ertheless
into
been inserted into or added
which have
though they had in
been
ment as
fact
passage
of such
the statute
incorporated therein.
amendment.
(italics added).
inter-
§
1954
We
Pa.C.S.
§
1 Pa.C.S.
concluding language
provi-
pret
recog-
Act
we
also directs that
or
legislative recognition
sion as
that error
to inter-
apply
nize and
these conventions
intervening
may frus-
other
circumstances
amendatory
pret
material. See
expression
legislative
trate accurate
that “in as-
1951 directs
Section
will,
paper-
even
in the official
as recorded
reading,
the correct
status and
certaining
Indeed, if
legislature
books.
did
statute,
amendatory
interpretation of an
circumstances,
contemplate
pro-
such
shall
the matter inserted within brackets
purpose.
serve no
See
vision would
omitted,
or
and the matter in italics
1922(2)
leg-
(stating presumption
C.S.
interpreted
underscored shall be read
that
statute be effec-
islative intent
entire
Id. Neither Sec-
part
as
statute.”
certain).
importantly, Sec-
tive and
More
us to
empower
tion 1104 nor Section
1954 mandates corrective construction
tion
portion of an
accept
controlling any
succeeding
amend-
when the content of
in the des-
printed
that is not
recognize the deletions of its
ment fails to
the word “com-
manner. Because
ignated
case such construc-
predecessor.
under-
monly”
italicized or
appear
does
recognize
requires
tion
we
amendment,
11,1996
July
we
scored
though
deletion of the word
accept Magliocco’s contention
cannot
incorporated” into the
it “had in fact been
material
amendatory
its inclusion
Thus, we hold that the
1996 amendment.
legislative
expression
an
constitutes
amendment,
in con-
construed
when
will.
formity
Statutory
with the
respect
Construction
with
to such individual or his or
Act,
Section
did not reintroduce the
her
or
property
respect
with
to one or
requirement of commonality to the defini-
more
group
members
such
or to their
tion of “instrument of crime.” The word
property.
“commonly,” as it
appears
the text of
(italics added).
amendment,
the 1996
expression
is not an
¶ Magliocco argues
that a conviction
is, therefore,
legislative
will and
a under
requires
this statute
that the defen-
Thus,
legal nullity.
the definition of “in-
predicate
dant first be convicted of a
strument of crime” controlling on the date
3503, Chapter
under Section
Section
Magliocco’s conduct,
continuing
(exclusive
3307),
B
Section
or Article
effect on the date of this Opinion, is:
(“this article”) of the Crimes Code. Article
Anything
purposes
used for criminal
and B of
comprised
the Crimes Code is
possessed by the actor
circum-
27, 29, 31,
chapters
and 32. The
manifestly
stances not
appropriate for
record establishes that the Commonwealth
lawful
it mаy
uses
have.
charge Magliocco
did not
with
offense
Act of
P.L.
No.
under Section
Section
or Chap-
1104(a), 1951,
§§
See also 1 Pa.C.S.
Additionally,
ter 33.
acquitted
the court
Applying this definition to the record be-
Threats,
him
of Terroristic
Article
us,
fore
we conclude without hesitation B
charged. Magliocco
offense
argues, ac-
that Magliocco’sacts on July
1999 did in cordingly,
separate
offense ele-
fact constitute
Magliocco
PIC.
does not ment of the crime of Ethnic Intimidation
argue that
the facts support any other was not established.
compelled
We are
conclusion. Consequently, we shall affirm agree.
*6
his judgment of sentence for PIC.
¶
by
17 Ethnic Intimidation
explicit
its
¶ 14 Magliocco’s
question
second
crime,
a contingent
terms
proof of which is
appeal
is directed to his conviction for dependent upon the
of a
establishment
Ethnic Intimidation. As in the case of his predicate crime. See Commonwealth v.
question,
first
this challenge
raises
is Ferino,
Pa.Super.
640 A.2d
sue of
construction of which our
(1994),
by
an evenly divided
affirmed
standard of
plenary.
review is
See Hock Court,
(1995)
Offense defined.-—A person commits Code.”). under the In Crimes Common- if, the offense of ethnic intimidation with Caine, wealth v. Pa.Super. race, malicious intention toward the col- (1996)(en banc), or, this Court re- religion or origin national of another viewed a defendant’s conviction for a simi- group individuals, individual or of he where, here, contingent lar crime commits an any under other offense acquitted factfinder had the defendant of provision Chap- this article or under of arson, only predicate with ter which he was (relating S3 criminal mis- Caine, destruction) charged. chief and the Commonwealth property other charged by exclusive of section in- the defendant with homicide (relating vandalism) influence, driving stitutional vehicle while or under section under the (relating 350S trespass) driving to criminal or under the influence of while under section alcohol. A.2d at (relating (citing to harass- See 683 891 n. 550k address) by ment communication or (respectively)). 75 Pa.C.S. Appellant “convict” provid- formally failure to statutory definitions of the crimes ed, part, pertinent driving as follows: under influence renders support by Appel- evidence insufficient Homicide while vehicle
driving by [the] under influence lant’s conviction of homicide vehicle driving the influence as a while under who un- Any person Offense defined. — еssence, to- its intentionally causes of another matter law. Reduced the death of a violation person as the direct result legal issue is whether conviction driving under (relating section 3731 driving homicide vehicle while under sub- influence of alcohol or controlled influence a formal requires convic- stance) who is violating convicted under driving tion for the influ- while felony of guilty 3731 is of a section ence. We can read the statute no other when the violation is the degree third way than it does. sentencing of death and the cause í¡í sj; í*í ifc :Jí person a mini- order to serve shall not of inconsistent This is a case ver- imprisonment mum term of lеss Rather, judge’s dicts. the trial verdict years. three specific fail- was error because of the 3735(a) (italics added). satisfy required ure to element of sec- Driving [the] under influence by vehicle [Homicide tion 3735 while alcohol or controlled substance driving under “conviction” influence]—a person defined. —A shall Offense [Driving violating section 3731 drive, physical or in actual operate influence of alcohol or controlled sub- any control of movement of vehicle: This failure have been stance]. (1) while under the influence of alcohol trial oversight, judge since the a[n] but per- degree to a which renders Appellant guilty found sеction driving; incapable of safe son charge, action is judge’s beyond # amendment. (4) while the amount of alcohol Id. person weight blood of argues that 19 The Commonwealth or greater[.] 0.10% *7 from be- distinguishable this case is Caine 3731(a)(1), § 75 Pa.C.S. cause the Ethnic Intimidation statute does ¶ judge, sitting trial as the fact- 18 The require prove Commonwealth finder, of defendant convicted the an that the offender was “convicted” of charge, vehicle see homicide offense, a merely requires showing but guilty § him of all but found predicate offense. “commit[ed]” he charge which charges, other included for its relies conten- alcohol, under the of driving influеnce this decision Com- upon tion Court’s appeal § the de see 75 Pa.C.S. 3731. On Cassidy, Pa.Super. monwealth that was in argued fendant “the evidence denied, (1993), A.2d 9 appeal ... to sustain his conviction be sufficient (1993), 619, 637 A.2d where this Court him did the court not convict cause a conviction for cor- defendant’s sustained influence, which is an under the driving he organization though even had been rupt driv homicide vehicle while element of underlying criminal acts. of the acquitted Caine, 683 A.2d the influence.” ing under Cassidy is control- conclude that We vacated the conviction 893. We ling. conclusion tha t: ¶ interpreted the Cor- Cassidy 20 In we section language clear Given the Act, see 18 Pa.C.S. Organizations rupt trial court’s must concede that we provides Judgment § much defi- FIRMED. imposed which broader sentence than proscribed Magliocco’s nitions of the Sec- on conviction of Ethnic Intimi- conduct tion which defines Ethnic Intimi- dation REVERSED. Corrupt Organization dation. Under the ¶ McEWEN, P.J.E. files a
Act,
by-
an offense could be established
Dissenting
Concurring
Opinion.
&
alia,
proving, inter
person
a
received
racketeering
“from a pattern
income
AND
CONCURRING
DISSENTING
in which
activity
participated as a
[he]
McEWEN,
BY
P.J.E.
OPINION
911(b)(1).
18 Pa.C.S.
principal.”
¶
Majority Opinion
l The author of the
statute defined the element of “racketeer-
his usual
perceptive
has undertaken
“any act which
ing” as
is indictable”
rationale,
I
persuasive expression of
chap-
a
number of
prescribed
Crimes Code
join in
part
Opinion supporting
911(h)(l)(i).
Signifi-
18 Pa.C.S.
ters.
of appellant’s
the reversal
conviction for
cantly,
require any
language
does not
I am compelled,
ethnic intimidation.
how-
conviction,
pattern
criminal
but merely a
ever,
respectfully,
quite
depart
of “indictable” acts.
affirm appellant’s
the decision to
conviction
Secondly,
in this case
of an
possession
instrument of crime.
underly-
makes clear that conviction of the
¶ 2
contends
Appellant
the Com-
an
ing
grad-
offense is
essеntial
element
evidence was insufficient
monwealth’s
ing the substantive offense. That subsec-
an
possessing
sustain the conviction for
tion provides:
it
instrument of
because
failed
(b) Grading.
offense under
—An
prove
bats
that baseball
are
shall
section
be
as mis-
classified
Major-
purposes.
used for criminal
As the
if
degree
demeanor of the third
recounts,
ity Opinion
argument impli-
other offense is classified as a sum-
principles
cates fundamental
Otherwise,
mary
offense.
of-
construction.
fense under
shall
this section
“possessing
3 The offense of
instru-
classified one
degree higher
ments of crime”
defined
the Crimes
specified
classification
sеction
Code as follows:
offenses)
(relating to classes of
person
A
commits misdemeanor of
the classification of the other of-
if-
degree
possesses any
first
he
instru-
fense.
it
employ
ment of crime with intent to
2710(b). Thus,
18 Pa.C.S.
if the defen-
criminally.
acquitted
underlying
dant has been
An
“instrument
offense,
or “other”
Ethnic
crime of
as:
crime” is defined
logically
graded.
Intimidation
can not be
*8
commonly
the trial
acquitted Maglioc-
Because
used for criminal
Anything
co of the
with
underlying
purposes
possessed by
offense
and
the actor
compelled
ap-
which was charged,
manifestly
he
we are
to
under circumstances not
that he
propriate
conclude
is entitled to relief on this
for lawful uses it
have.
issue,
his
and
conviction must be reversed.
907(d)(2)
sup-
(emphasis
Judgment
22
imposed
plied).1
of sentence
on
latter definition is derived
This
AF-
Magliocco’s conviction of PIC
from the
amendment to section
1996
language
reproduced
divergence
the
1.
between what
This
differs from that
unusual
Pennsylvania
and
that
reports
in Purdon's
Stat-
official
the unofficial volume
Consolidated
Annotated,
depended upon
lawyers and
by
the
utes
which does not contain
is so often
courts,
“commonly.”
sought
this
highlighted word
Given this
Court
certification
trial
significant propor-
“a
during
the
That amendment
followed a
evidence
Code.2
bats.”
tion of
baseball
involve[d]
assaults
that had deleted the
amendment3
Id. 297,
1289
¶
(1995),
Pennsylvania
5 The
746
Statutory
principle
Con- A.2d
summarized this
provides
struction Act
relevant part
as
of
construction
follows:
that:
statute,
When
a
the court
interpreting
(a)
object
interpretation
of all
must ascertain
effectuate the intent
construction of
is to
statutes
ascer-
give
full effect to
legislature and
tain and effectuate the intention of
provision
each
if
at all
Assembly.
the General
Every stat-
possible.
1921(a);
1 Pa.C.S.
Com-
construed,
ute
if possible,
shall be
Brown,
264,
423 Pa.Super.
monwealth v.
give
provisions.
effect to all its
266,
1213,
(1993);
620
1214
A.2d
Com-
(b) When the
of a
words
statute are
Edwards,
Pa.Super.
monwealth v.
384
clear
ambiguity,
and free from all
63,
(1989), appeal
559 A.2d
66
the letter of
it is
to be disre-
denied,
640,
523
565
Pa.
A.2d 1165
garded
pretext
pursu-
under the
(1989).
construing
a statute to de-
ing
spirit.
its
meaning,
termine its
courts must first
1921(a),(b)
(emphasis
sup-
may
determine
the issue
whether
be re-
plied).
express
solved
reference
lan-
late,
legendary
6
Justice James T.
statute,
guage of the
which is to be read
McDermott, opined
Supreme
for the
Court
according
meaning
to the plain
Lobiondo,
in Commonwealth v.
501 Pa.
words. 1 Pa.C.S.
See Com-
(1983),
at at 74 Pa. meaning explicit- their until 1921(c)). rely uals §C.S. Texas, v. 529 U.S. ly changed.” Carmell Grom, supra 21, 120 1632 n. 531 n. S.Ct. contends, The Commonwealth (2000).7 594 n. L.Ed.2d essentially agrees, that we Majority I can- the above-stated reasons For history extrapolate should from this join “correct” what is the decision to interpretation section 907 mistake, and perceived legislative sup- “commonly.” that omits the word “cor- position any must adhere the Commonwealth port argument under- recting” of this statute should be Statutory 1954 of upon relies section Since, Assembly. taken the General Act, provides, inter Construction which therefore, I would measure the Common- alia, if in and the deletions “insertions lan- against explicit wealth’s evidence previous statute made [a] [a] statute,8 I am compelled guage incorporated are not the Commonwealth’s conclusion latter, they shall nevertheless be read into appel- was insufficient sustain evidence they though had later amendment of an instru- possession lant’s conviction сrime, Pa. incorporated Ngow, fact been therein.” v. ment of therefore, would, I supra, con- vacate C.S. 1954. While “corrective this charge. conviction on section be effective struction” statute,6 it simply a civil cannot context of scrutiny in the crimi-
stand constitutional context, the law clear that
nal where is fair
legislative “give enactments must provisions” as one the cate- showing ''[pjenal eates require that instrument com- require purposes). gories "strict” construction. monly which used criminal 1928(b)(1). however, mention, It that research bears law, in which the effective- discloses no instances pure question our this is 8.Because been tested. inquiry ness of this section has governing of review standard Hockenbury, 549 plenary. Commonwealth n. 3 Pennsylvania 531 n. 701 A.2d emphasis It that the also bears specifically Statutory Act delin- Construction