COMMONWEALTH of Pennsylvania, Appellant v. Antoine MILLER, Appellee.
Supreme Court of Pennsylvania.
Argued May 11, 2011. Decided Jan. 20, 2012.
35 A.3d 1206
PER CURIAM.
AND NOW, this 20th day of January 2012, the pro se Petition to Remove Counsel and Go Pro Se and Terminate Direct Appeal is DENIED. The Petition for Allowance of Appeal is DENIED.
35 A.3d 1206
COMMONWEALTH of Pennsylvania, Appellant
v.
Antoine MILLER, Appellee.
Supreme Court of Pennsylvania.
Argued May 11, 2011.
Decided Jan. 20, 2012.
William E. Ruane, Spiros Ernest Angelos, Dеlaware County Public Defender‘s Office, for Antoine Miller.
BEFORE: CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, MCCAFFERY, ORIE MELVIN, JJ.
OPINION
Justice McCAFFERY.
The question presented for our review implicates the issue of inconsistent verdicts in the context of a second-degree murder conviction. Because the Superior Court erroneously concluded that a jury‘s verdict of guilt on a second-degree murder charge and its acquittal on the predicate felony of robbery were impermissibly inconsistent and could not stand, we vacate the Superior Court‘s order.
On or about April 11, 2006, Antoine Miller (“Appellee“) brutally murdered Wallace Bivens in his Delaware County apartment and then stole his vehicle. Appellee was arrested later that evening after police noticed him driving the victim‘s vehicle without headlights and he engaged the officers in a high-speed chase. Appellee was charged with a number of violations of the Motor Vehicle Code, including fleeing or attempting to elude an officer, accident involving damage to unattended vehicle or property, and reckless driving.1 Not yet realizing that the owner of the vehicle that Appellee was driving had been murdered, police impounded the vehicle and sent a notice of impoundment to the victim‘s residence. Approximately two weeks later, on April 24, 2006, while attempting to serve an eviction notice on the victim, a state constable discovered the victim‘s decaying body in the living room closet of his apartment. An autopsy revealed that the victim had
In a trashcan in the victim‘s apartment, police found an iced tea can and a cigarette butt, which, upon subsequent analyses, were shown to contain Appellee‘s fingerprint and DNA, respectively. In addition, Appellee‘s thumbprint was detected on the outside doorknоb of the door to the closet in which the victim‘s body was found. The victim‘s cell phone and cell phone holder, stained with blood, were found in the victim‘s impounded vehicle. DNA analysis revealed that the blood on the cell phone and holder matched that of the victim, as did blood found on a sneaker worn by Appellee when he was arrested in possession of the victim‘s vehicle. The final call made from the victim‘s cell phone was to Appellee.
Appellee was charged with first-, second-, and third-degree murder; robbery, which was the Commonwealth‘s predicate offense for the second-degree murder charge; aggravated and simple assault; theft, by unlawful taking and by receiving stolen property; and possessing an instrument of crime.2 Following a jury trial, Appellee was found guilty of second-degree murder, theft by unlawful taking, and fleeing or attempting to elude an officer, but he was acquitted of first-degree murder, rоbbery, aggravated assault, and possessing an instrument of crime. The jury rendered no verdict on third-degree murder and theft by receiving stolen property. On April 17, 2007, following a pre-sentence investigation and psychiatric evaluation, the court sentenced Appellee to life imprisonment without parole for the second-degree murder conviction, as well as to a total term of not less than three nor more than six years’ imprisonment for the theft and fleeing an officer convictions.
Appellant appealed to the Superior Court, contending that the evidence was insufficient to sustain his second-degree murder conviction because he had been acquitted of the predicate offense of robbery. The Superior Court reversed Appellee‘s second-degree murder conviction and vacated his
The Commonwealth filed a petition for allowance of appeal with this Court, which we granted on the following issue:
Does an acquittal of the felony upon which a second-degrеe murder charge is predicated necessitate reversal of the jury‘s second-degree murder conviction?
Commonwealth v. Miller, 607 Pa. 305, 5 A.3d 814 (2010).3,4
The question before us implicates the general issue of inconsistent verdicts, which, under longstanding federal and state law, are allowed to stand so long as the evidence is sufficient to support the conviction. See Dunn v. United States, 284 U.S. 390, 393, 52 S.Ct. 189, 76 L.Ed. 356 (1932) (holding that “[c]onsistency in the verdict is not necessary” and refusing to allow inconsistent verdicts to be upset by “speculation or inquiry” into the possibility of compromise or mistake on the part of the jury); United States v. Powell, 469 U.S. 57, 58, 105 S.Ct. 471, 83 L.Ed.2d 461 (1984) (applying Dunn‘s rule, which the Court explained as follows: “a criminal defendant convicted by a jury on one count could not attack that conviction because it was inconsistent with the jury‘s verdict of acquittal on another count“). In affirming a verdict of aggravated assault and battery, despite the jury‘s acquittal of the accused on a separate count of assault and battery, this Court reitеrated that “[a]n acquittal cannot be interpreted as a specific finding in relation to some of the evidence.” Commonwealth v. Carter, 444 Pa. 405, 282 A.2d 375,
In Commonwealth v. Campbell, 539 Pa. 212, 651 A.2d 1096 (1994), this Court relied on the reasoning of Dunn and Powell to conclude that a conspiracy conviction was valid even though the defendant‘s sole alleged co-conspirator had been acquitted after a joint trial. In reaching this holding, we summarized the various rationales that the Powell Court had advanced in support of the Dunn rule. First, the High Court reasoned that inconsistent verdicts “should not necessarily be interpreted as a windfall to the Government at the defendant‘s expense.” Powell, supra at 65, 105 S.Ct. 471 (cited in Campbell, supra at 1100). Rather, the High Court determined, it was equally possible that the jury was convinced of guilt and accordingly reached a verdict of guilty on the compound offense, but “then through mistake, compromise, or lenity,” reached an inconsistent verdict of acquittal on the lesser offense. Id. Thus, although an inconsistent verdict constitutes jury “error,” it is not at all clear whether the error was made at the expense of the Government or the defendant. “Given this uncertainty, and the fact that the Government is precluded [by double jeopardy considerations] from challenging the acquittal, it is hardly satisfactory to allow the defendant to recеive a new trial on the conviction as a matter of course.” Id. As the High Court concluded, “the fact that the inconsistency [in the verdict] may be the result of lenity, coupled with the Government‘s inability to invoke review, suggests that inconsistent verdicts should not be reviewable.” Id.
A second factor recognized by the Powell Court in accepting inconsistent verdicts is the fact that “an individualized assessment of the reason for the inconsistency [either] would be based [] on pure speculation, or would require inquiries into the jury‘s deliberations that courts generally will not undertake.” Id. at 66, 105 S.Ct. 471 (cited in Campbell, supra at 1100). Finally, the Powell Court noted that “a criminal defen-
This Court has previously addressed the issue of inconsistent verdicts in a second-degree murder case. See Commonwealth v. Gravely, 486 Pa. 194, 404 A.2d 1296 (1979) (plurality). In Gravely, the defendant/appellant was found guilty of second-degree murder, but the jury was unable to reach a verdict as to the predicate charge of rape. Gravely sought relief on the grounds that the verdict was inconsistent, relief that this Court denied with little discussion or analysis, simply reiterating that “consistency in a verdict is nоt necessary.” Id. at 1301.5
In Commonwealth v. Magliocco, 584 Pa. 244, 883 A.2d 479 (2005), this Court returned to the issue of inconsistent verdicts, this time in relation to a conviction for ethnic intimidation,
In concluding that Magliocco‘s ethnic intimidation conviction could not stand, we first reiterated that “a mere facial inconsistency in verdicts is not a valid basis upon which to upset a conviction which is otherwise proper, since consistency in verdicts is not required.” Id. at 492. We also pointed out that, while the Commonwealth was not required to formally charge a defendant with the predicate offensе in order to charge him or her with and secure a conviction for ethnic intimidation based upon that predicate offense, the Commonwealth did in fact charge the Magliocco defendant. In this “admittedly unusual” circumstance, the offense of which the defendant/cross-appellee was acquitted, i.e., terroristic threats, was a specific statutory element of the offense of which he was convicted, i.e., ethnic intimidation. Id. Noting the “special weight” that acquittals have traditionally been accorded in the law, we held as follows:
[S]ince the factfinder in this case specifically found that Magliocco did not commit the offense of terroristic threats, the conviction for ethnic intimidation, which requires as an element the commission beyond a reasonable doubt of the underlying offense, simply cannot stand.
Id. Accordingly, we affirmed the Superior Court‘s vacatur of the Magliocco cross-appellee‘s conviction for ethnic intimidation.
As the Superior Court has already concluded, the Marcavage decision does not affect our analysis in the instant case.
§ 6318. Unlawful contact with minor
(a) Offense defined.—A person commits an offense if he is intentionally in contact with a minor for the purpose of engaging in an activity prohibited under any of the following, and either the person initiating or the person being contacted is within this Commonwealth:
(1) Any of the offenses enumerated in Chapter 31 (relating to sexual offenses).
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(b) Grading.—A violation of subsection (a) is:
(1) an offense of the same grade and degree as the most serious underlying offense in subsection (a) for which the defendant contacted the minor; or
(2) a misdemeanor of the first degree; whichever is greater.
In Reed, the jury convicted the defendant of unlawful contact with a minor, but acquitted him of all charged underlying offenses, including attempted rape of a child and attempted involuntary deviate sexual intercourse, which are first-degree felonies; attempted statutory sexual assault, which is a second-degree felony; and attempted indecent assault, which is a first-degree misdemeanor. Concluding that Section 6318‘s grading scheme was not contingent upon the defendant actually being cоnvicted of the underlying offense, the trial court relied on subsection (b)(1) and graded the defendant‘s conviction for attempted unlawful contact with a minor as a first-degree felony. The Superior Court vacated the judgment of
Justice Saylor authored a concurring opinion in which he expressed his unease with “the amorphous scope of the special weight afforded to acquittals, as referenced by the majority.” Id. at 1148 (Saylor, J., concurring). Justice Saylor noted his previous identification of the “substantial tension” between allocation of a special weight to acquittals and the courts’ allowance of inconsistent verdicts in the first instance. Id. at 1149 (citing Magliocco, supra at 494 (Saylor, J., concurring and dissenting)). Recognizing that Magliocco and the special-weight policy have altered the general rule as to allowance of inconsistent verdicts in some cases, and referencing this Court‘s acceptance of the appeal in the instant case, Justice Saylor suggested that “substantial uncertainty remains concerning the boundaries of the special-weight jurisprudence.” Id.
Turning now to the instant case, the Superior Court purpоrted to rely on Magliocco, as interpreted by that court in Commonwealth v. Austin, 906 A.2d 1213 (Pa.Super.2006), appeal denied, 591 Pa. 721, 920 A.2d 830 (2007), in vacating Appellee‘s second-degree murder conviction. Because Appellee had been acquitted of robbery, the predicate felony, the Superior Court concluded that the Commonwealth had failed to prove that Appellee killed the victim while in perpetration
To secure a conviction for ethnic intimidation, thе Commonwealth must prove that the defendant “committed” the predicate offense “with malicious intention toward the race” of an individual or group. Magliocco, supra at 489, 493 (quoting
In contrast to the ethnic intimidation statute, the second-degree murder statute does not set forth or require the commission of the predicate offense as an element. To secure a conviction for second-degree murder, the Commonwealth must prove that the defendant committed a murder “while [he or she] was engaged ... in the perpetration of a felony.”
[B]y [statutory] definition, in order to convict for felony murder it is not essential that the jury find that the predicate offense was actually completed. In effect, all the felony murder statute requires is for the jury to conclude that a criminal homicide was committed while the defendant participated in a completed or an attemрted delineated, i.e., predicate, offense.
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... to the extent that felony murder does not require the commission, i.e., completion, of the predicate offense, an acquittal of the predicate offense will not always mean that the homicide did not occur in the ‘perpetration of a felony.’ That is, the homicide could have occurred during the course of, or after, an unsuccessful attempt to commit the predicate offense..... Thus, it would be possible for a fеlony murder to occur even though the predicate offense was not ‘committed.‘”
In other words, in contrast to the crime of ethnic intimidation, second-degree murder does not require, as an element of the crime, the completion of the predicate offense. Thus, Magliocco, which was grounded in the delineation of the elements of ethnic intimidation set forth in the text of that statute, does not control the outcome of the instant case, where a very different statute is at issue. Accordingly, relying on the long-standing and well-established principle that consistency in a verdict is not required, we hold that Appellee‘s acquittal of the predicate offense of robbery does not
In Gravely, supra, a case decided thirty years ago as discussed above, this Court affirmed the appellаnt‘s conviction for second-degree murder even though the jury was unable to reach a verdict as to the predicate offense of rape. We reach an analogous decision today.
Order of the Superior Court is vacated. This case is remanded to the trial court for reinstatement of Appellee‘s conviction for second-degree murder.
Chief Justice CASTILLE, Justices EAKIN, BAER, TODD and ORIE MELVIN join the opinion.
Justice SAYLOR files a concurring opinion.
Justice SAYLOR, concurring.
I have difficulty with the majority‘s treatment of the Supеrior Court‘s decision in Commonwealth v. Austin, 906 A.2d 1213 (Pa.Super.2006). The majority relies on a passage from Austin for the proposition that, in order to obtain a felony murder conviction, the Commonwealth is not required to prove that the accused actually committed the predicate offense. See
Indeed, I am sympathetic to the Superior Court‘s treatment in Austin, since, as I indicated in my concurring and dissenting opinion in Commonwealth v. Magliocco, 584 Pa. 244, 883 A.2d 479, (2005), I believe that Magliocco‘s reasoning lends itself to application beyond the scope of the ethnic intimidation statute. See id. at 268, 883 A.2d at 493 (Saylor, J., concurring and dissenting); see also Austin, 906 A.2d at 1222 (“To paraphrase the Supreme Court by substituting the relevant facts оf this case, ‘since the factfinder in this case specifically found that Appellant did not commit the offense of robbery, the conviction for felony murder, which requires as an element the killing while in the perpetration of a robbery, simply cannot stand.‘“) (citing Magliocco, 584 Pa. at 267, 883 A.2d at 493); Commonwealth v. Miller, No. JA 05-02408, slip op. at 14-15 (Pa.Super., Nov. 23, 2009). I support the majority‘s decision effectively to limit Magliocco to its facts, because I am not persuaded, at least at this juncture, that the practice of tolerating inconsistent verdicts should be abandoned, while, again, acknowledging that there are policy considerations on both sides of this question. See Magliocco, 584 Pa. at 268-70, 883 A.2d at 493-94 (Saylor, J., concurring and dissenting).