Commonwealth v. Shaffer

liability increased risk of stands contrast sharp Bank, Continental wherein the suretyship agreement express- ly provided that “any the Axlers had waived notice of other materially fact which might increase their risk.” finding We conclude that the Court erred notices, Mrs. Scigliano including waived all those which fore- bonds, any increase in liability casted her risk of on under the terms of the 1984 Continuing Agreement. Indemnification The order of the judgment reversed and the entered common pleas Scigliano court favor of Mrs. is reinstated. Pennsylvania, Appellee

COMMONWEALTH of SHAFFER, Appellant. Louis Pennsylvania. Court of Argued Sept. July Decided Ceraso, for Louis Shaffer. Greensburg, R. Thomas Graci, McKenna, for the Harrisburg, Robert A. F. Andrea Com. ZAPPALA, CAPPY, FLAHERTY, C.J.,

Before SAYLOR, NIGRO, CASTILLE, JJ. NEWMAN OPINION ZAPPALA, Justice. in this granted appeal

We allowance of matter determine holding legisla- whether the Court erred Pennsylvania Corrupt Organizations ture’s amendment of the (Pa.C.O.A.), seq., wholly et to include illegitimate enterprises, applied activity to criminal that oc- amendment, curred under the Act effect to the which solely this Court interpreted applying legitimate enter- prises in Commonwealth v. follow, For the reasons that find that the Superior we

Court erred. Accordingly, we reverse its decision.

Appellant was found guilty by jury single counts of substance, of a possession controlled with intent possession substance, deliver a delivery controlled of a sub- controlled stance, criminal conspiracy, corrupt organizations and corrupt organizations (conspiracy). He was sentenced to term of imprisonment of forty-eight ninety-six months for delivery of a controlled substance and concurrent terms of twenty- sixty seven to for months each of the conspiracy corrupt organization convictions.1

Appellant appealed judgment the of sentence to Superi- the or Court. appeal pending, While his this Court issued its decision in interpreted where we applicable the Pa. C.O.A. not encompassing prosecution wholly illegiti- enterprises. mate Accordingly, Appellant argued that be- cause charges relating to his corrupt organization convic- tions solely stemmed from the government’s allegation of his in participation wholly illegitimate drug enterprise, his con- victions could not rejected stand.2 The Superior Court argument, that noting Besch were pronouncement

[i]f the last relevant concerning scope statute, of the corrupt organizations we would be history 1. Superior A more detailed factual is contained in the Court’s opinion Shaffer, below. Commonwealth v. 180-182 (Pa.Super.1997). dispute among parties enterprise There is no at issue here wholly illegitimate drug enterprise. was a It not. conviction. appellant’s to reverse constrained decision, Pennsylva after the Besch Within two weeks statute, doing and in so ex amended the nia supreme ruling.[3] court’s disagreement pressed to exempt that it never intended The stated Act. from the reach of the businesses illegal Michael Fisher at 183. Former Senator Shaffer, 696 A.2d seeking motive Representatives’ the House of explained He stated before the Senate: amend the Pa.C.O.A.. President, Repre- Mr. the House importantly, most [B]ut sentatives, on added they April action which took an to overrule attempt to that bill in amendments majority of the majority, person the four decision on Pennsylvania Supreme April th 36, at 2028 Legis. Journal No. Legis.; S.B. added). (June 5,1996) (emphasis foregoing legislative action Court found Superior the Pa. controlling regarding Moreover, decisions of the C.O.A. because Court, of this had non-precedential opinion and one with the legislature’s Pa.C.O.A. accordance interpreted the intent, Court concluded subsequently stated See in Besch had no effect on its determination. our decision Yacoubian, id., citing at A.2d 228 and Commonwealth Pa.Super. J., Wetton, (Zappala, A.2d 579 n. 5 Reversal, wherein Yacoubian was cited Support Opinion dicta). Yacoubian, where the to with approval racketeering act could be read Pennsylvania’s Court held as encompass illegitimate as well broadly enough preamble the rejecting argument “enterprises” entities, was the statute to application limited of in overruled Besch. the Although Superior Court stated that the amended Besch, actuality, in two weeks of our decision in Pa.C.O.A. within amendment, proposed which was Representatives made its House of legislative within two weeks. The actual then sent to the Senate 19, 1996, on June effective amendment to the Pa.C.O.A. occurred immediately, April 1996 decision in Besch. two months after our duty to maintain and recognized Court

While Court, legisla- law of this the decisional effectuate our contrary to ture’s stated intent the court concluded instant of the disposing the rationale of Besch apply legislature, despite ignore would be to the intent

case discerned and correctly court’s belief that it had the Besch same[,] applied holding,

Shaffer, By 696 A.2d at 183. Besch. effectively overruling action as legislature’s treated the effect, if any, We must now decide what Pa.C.O.A. had on our subsequent amendment since, “[i]f in Besch as noted decision Appellant’s relevant pronouncement,” Besch were the last conviction would be reversed.4 charged violating with and convicted of

Appellant was as the Besch. provisions appellant same the Pa.C.O.A. 911(b)(3) sections, (4), §§ provide: These 18 Pa.C.S. & (3) any person employed by It shall be unlawful for or or any enterprise participate, associated with to conduct enterprise’s conduct of such directly indirectly, or racketeering activity. affairs through pattern (4) any person conspire It shall be unlawful for violate any provisions paragraph “enterprise” The Pa.C.O.A. defined individual, association or other any partnership, corporation, legal entity, group union or of individuals associated although legal entity, engaged in fact not a commerce. 911(h)(3). charged and convicted Appellant properly Whether could of the Pa.C.O.A. in effect at the foregoing provisions under activity depended upon time his criminal occurred whether the us. The 4. We wish to make clear that this is the issue before parties dispute do not that if the amendment did not affect our decision Besch, Appellant’s in wealth, conviction must be reversed. The Common- however, alternative, in the advocates that we overrule Besch Appellant’s and affirm conviction. wholly illegitimate Pa.C.O.A. embraced Once the enterprises. efforts, signed finished and Pa.C.O.A. was Courts, law, into it ultimately was for the this interpret legislative language. We did so Besch. examining

After the extensive and specific preamble to the Pa.C.O.A., this Court concluded

[tjhere is no the clear of this escaping intent statute. The Assembly great pains General went to set forth the parameters piece legislation. of this Pa.C.O.A. is direct- preventing ed at the infiltration of legitimate business organized crime in order to promote protect legitimate development Pennsylvania. Although economic within acknowledges Commonwealth this to be the intent of precise Pa.C.O.A., Assembly the General in enacting they choose to However, ignore same. once the intent of the General Assembly has been ascertained that intent cannot be ig- nored, rather, it must be effect. (citations omitted). 674 A.2d at 659

Thus, upon interpretation, applicable based our Appellant Pa.C.O.A. that was convicted of violating did not Erb, apply wholly illegitimate enterprises. Harry See C. Co., Inc. v. Shell Pa.Super. Construction Schaller, citing City Philadelphia 148 Pa.Super. (1942) 276, 25 (judicial A.2d 406 construction of a statute part legislation becomes from of its the time enact ment); Peters, see also (1973) (per A.2d 901 curiam noting order this Court that our interpreting decision Pa.R.Crim.P. 118 was the law rule). Commonwealth after the effective date of the Although amended the act to state a meaning different as “enterprise” follows: individual, ‘Enterprise’ any means partnership, corpora- tion, association or other legal entity, union or group of although individuals associated fact not a legal entity, engaged commerce and includes as well as entities governmental entities. amended, 911(h)(3), immediate- June added), could the amendment ly effective Statutory 1953 of the Con- Section applied prospectively. statutes,” Act, amendatory “Construction struction entitled provides: amended, the of a statute is part a section

Whenever original into the merging shall be construed as amendment statute, thereof, replace part amend- part become a ed, statute and the original and the remainder of the and viewed as one stat- together amendment shall be read time; of the statute passed portions ute at one but the shall be con- by not altered the amendment which were enactment, original as from the time of their strued effective only the new shall be construed provisions effective the amendment became the date when effective. from added). Moreover, amendatory 1 Pa.C.S. 1953 if retroactively only such con- statutes are to be construed of the provisions indicated under the clearly struction is Scoleri, Pa. 160 A.2d statute. Commonwealth v. 399 227 in legislature clearly indicate the amen

The failed of the Pa.C.O.A. should be datory act that the amendment legislative history accom applied retroactively. Although the de legislators the amendment indicated certain panying in legislature to overrule our decision lacked sired Pa. Sutley, Commonwealth v. authority do so. See Greenough, citing Greenough (1849) (the cannot, legislature assembly, Pa. 489 an act of decision). Nor create judicial legislature overrule a can the by passing “clarifying” legislation. St. authority retroactive Lead Inc. v. Potter Joseph Company Koppers Company, (“[I]t Township, 398 cannot retro elementary authority create The intent actively simply by passing ‘clarifying’ legislation. must as of the time the of the be determined act original passed.”)5 was

5. We are not unaware of our decision in Commonwealth v. Chamber- lain, -Pa.-, (1999), where we concluded that the decision, in treating nullity The Court’s Besch as a upon legislature’s subsequent based amendment Pa.C.O.A., clearly erroneous. The Superior essence, statutory reinterpreted language of the Pa.C.O.A. contrary interpretation a manner that was to our in Besch. However, clear, foregoing as the makes once this Court inter- act, preted legislative language applicable contained our became a from interpretation part legislation date of its enactment. clearly failure set forth its act original intent could be remedied ' Thus, later prospectively by amendment. duty Court violated its effectuate the decisional law of this Court since our enactment con- trolled the matter.6

As affirming Appellant’s Court erred convictions 911(b)(3) 911(b)(3) (4), §§ based upon Sections & 18 Pa.C.S. & Pa.C.O.A., of the regard. we now reverse its decision concurring opinion. Justice CASTILLE files a Justice NEWMAN and Justice SAYLOR concur in the result. Code, County amendment of Section 1420 of the 16 P.S. § obviously which was amended to correct our Lawson, legislative the intent of Section 1420 in Commonwealth (1997), holding 699 A.2d 1246 "eviscerated the and rationale Chamberlain, amending of Lawson.” 731 A.2d at 599. In Section 1420, however, here, (d) legislature, specified the unlike in subsection amendment, apply pending that it "shall to all cases the on thereafter, including, effective date of this subsection and all cases but to, post-trial appeal.”

not limited those cases on or on extremely by 6. We Superior wish to note that we are troubled the seemingly disregard precedent Court's effortless of our established in speculate regarding Besch. While we do wish not to the court’s to, regard, necessary again, motives in this we feel it once the remind Superior duty obligation Court of its and to follow the decisional law of only ago, this Court. It was several months in Commonwealth v. (1998), Randolph, 553 Pa. that we it found neces- sary Randolph, to admonish the a Court in similar fashion. In emphasized precept judicial system we that a "[i]t is fundamental of our may disregard by that a lower tribunal not the standards articulated a higher equally court.” Id. at 1245. This canon is relevant to within again emphasize applicability. case and we CASTILLE, Justice, concurring. Court when it held

I to that this erred continue believe Besch, A.2d Organi- Pennsylvania Corrupt for the intended (“the Act”), § seq., encompass 18 Pa.C.S. 911 et zations However, because legitimate enterprises. businesses only the law time the Court reviewed Besch was at the I believe that judgment sentence to the Act retroac- applying erred the amendments in the reached I am to concur result tively, constrained majority.1 subject that in to be majority

In held order Act, needed to establish the Commonwealth business; thus, a legitimate was to a “enterprise” connected cartel, business, drug an such as a illegitimate connection majority’s At the not the Act. time of covered under individual, part- “enterprise” “any the Act holding, defined association, entity or other corporation, legal nership, although group associated in fact of individuals union legal entity, engaged commerce.” not added). 911(h)(3) plain language Act to for the statute indicated that the intended Neverthe- to both activities. apply less, majority disagreed. in Besch enterprises, ruling applied

In that the Act divergent took from the United State majority path Turkette, States v. U.S. which United 2524, (1981), 246 576, 101 69 L.Ed.2d considered S.Ct. found in federal Racke- “enterprise” definition of identical statute, 18 U.S.C. Corrupt Organizations Influenced teer and 1961(4),2 § and concluded that: majority opinion, in 1996 to 1. As noted in the was amended illegitimate legitimate enter- provide applied that PCOA as well as prises. RICO, individual, “any partnership, enterprise defined as 2. Under association, legal entity, group or corporation, other union although legal entity.” not 18 U.S.C. in fact of individuals associated 1961(4). § RICO is equally applicable to a criminal enterprise has legitimate no yet dimension or has to acquire Accept- one. ing primary purpose cope RICO is to with the businesses, of legitimate infiltration applying the statute in terms, accordance with its so as to reach criminal enterpris- es, would seek to deal with the problem very at its source. Id. at 591.3 majority justified ignoring plain language of the

statute, as well as the United States Court’s inter- pretation of the language, identical on based one sentence preamble the Act’s which states that: The vast amounts of money power accumulated organized crime are increasingly used to infiltrate cor- rupt operating businesses within the Common- wealth, together with all of techniques violence, intimidation, and other forms of unlawful through conduct which money such and power are derived. 911(a)(3). this, From majority Besch went

on to conclude that:

There is no escaping the clear intent of this statute. The General Assembly went to great pains to set forth the parameters of this piece legislation. Pa.C.O.A. is direct- at ed preventing the infiltration of legitimate business by 3. The decision in Turkette was consistent with a number of federal cases which had enterprise held that the definition under the RICO statute See, included enterprises. e.g., as well as Russel States, 16, 296, (1983); lo v. United 464 U.S. 104 S.Ct. 78 L.Ed.2d 17 Errico, 152, (2d Cir.1980) denied, United States v. 635 F.2d cert. 911, 3142, (1981); U.S. 101 S.Ct. 69 L.Ed.2d 994 United States v. Provenzano, (3d Cir.), denied, 899, 620 F.2d 985 cert. 449 U.S. 267, (1980); Whitehead, S.Ct. 66 L.Ed.2d 129 United States v. 618 F.2d 523, (4th Cir.1980); Aleman, 298, 525 n. 1 United States v. 609 F.2d Cir.1979), (7th denied, 946, 1345, 304-05 rt. 445 U.S. 100 S.Ct. ce (1980); Rone, 564, (9th L.Ed.2d 780 United States 598 F.2d 568-69 Cir.1979), denied, 946, rt. 445 U.S. 100 S.Ct. 63 L.Ed.2d 780 ce (1980); Swiderski, United States v. 593 F.2d 1248-49 cert. denied, (1979); 441 U.S. 99 S.Ct. 60 L.Ed.2d 662 United Elliott, (5th Cir.), denied, States v. 571 F.2d 896-98 cert. 439 U.S. 99 S.Ct. 58 L.Ed.2d 344 legitimate protect and promote in order to crime

organized Pennsylvania. within development economic 659. 674 A.2d at 544 Pa. at ruling However, this Court’s two weeks after this Court’s erroneous to correct Assembly acted General clarify the defini- process by beginning interpretation and Act to include both enterprise under tion of the amendments At the time enterprises.4 and Representatives House of Act, of both the members this Court’s disagreement their made clear the Senate Representative For State example, of the Act. stated: H. Masland Albert vote, decided by a four-to-three Supreme

Our Act did not Corrupt Organization’s [sic] Pennsylvania wholly engaged who organizations corrupt to those apply said, words, corrupt they In other activities. illegal business involved had to also be organization purview under the for that to come enterprises intent, I That was not Act.... Corrupt Organizations the act believe, back in 1970 when of this do not I today, and I it is our intent do not think passed. in his Justice Nix join with Chief ought think we Castille Sandra along with Justices dis[s]enting opinion, Newman, our act so that the rest change Schultz what we intend. Court understands (Pa.Super.1997) Shaffer, added). (Pa.1996)) Legis. 180th (citing (now Attorney Moreover, Michael Fisher Gen- former Senator eral) stated: added with the amendments [B]y concurring

... clarifying that stat- ... we are of Representatives House that, drug organiza- in fact it is our intent say ute to provides: Following the statute now the amendments individual, corporation, partnership, associ- "Enterprise” means group entity, any union or of individuals legal ation other legal entity, engaged in commerce although not a associated in fact govern- illegitimate entities and legitimate as well as and includes mental entities. amended, 911(h)(3), June tions and drug enterprises Pennsylvania across and other illegitimate Pennsylvania across enterprises were intended by to be covered Statute.

Id. at 185 (citing 1172, Legis; S.D. 180th Journal Legis. (June 1996)) added). 36, 5, p. No at 2028-29 The Senate went on to pass clarifying amendment to the Act by a unanimous vote. “While statements made by legislators during the process dispositive enactment are not of legislative intent, they may properly considered as part the contem- Baxter, poraneous legislative history.” Washington v. 553 Pa. 434, (1998). 738 together,

Taken legislative comments and the alacrity with which the General Assembly following acted the decision Besch, in provides ample evidence to support the conclusion legislature that the did not for only intend the Act to apply to Besch legitimate enterprises. The in majority erroneously determined the intent. It is well in established the Commonwealth that failure of Assembly “[t]he the General the law change which has been interpreted by the courts creates a presumption interpretation was in accor Shandon, Inc., intent.” Fonner v. legislative dance with the Commonwealth v. 555 Pa. 724 (citing A.2d Products, Inc., Willson 78, 87-88, 412 Pa. 194 A.2d (1963)).5 Assembly When the General does act make clear that the court’s interpretation is inconsistent with legisla intent, tive we guidance should follow the and, where possible, amend earlier interpretations. erroneous Lassiter, See Commonwealth v. (1998) (“actions

n. 3 undertaken in subsequent sessions of the Legislature are relevant interpreting statute which was passed previous session of Legislature.”) Moreover, prior to the decision in Court had held ‘enterprise’ that "the sufficiently term is unrestricted and broad to illegitimate enterprises.” include both Commonwealth v. Yacoubian, Pa.Super. Had this been a wrong interpretation, was free to act to amend the statute, not, but since it did this Court in Besch should have greater presumption deference to the statutory interpretation Fonner, Yacoubian was correct. See 724 A.2d at 906. cling continues to to its in the instant matter majority The clarifying amendments to the belief unsupported only Assembly, applied the General appli- crimes added new that the amendments enterprises That is not what in the future. under the Act cable disagreement Assembly obvious The General occurred. statute, acted to demon- this Court’s trying erred how the Court had strate to this Court that the Act cover Assembly’s intent the General determine matter in the instant majority organizations. to cede its error. unwilling case, Nevertheless, heard this when Therefore, it was law of this Commonwealth. Besch was the the interpret of stare decisis to under the doctrine constrained The enterprises.6 only legitimate encompassing statute as court, obligat- Court, appellate is as an intermediate Superior of the to the decisions apply ed follow this deci- disagrees it Court’s Pennsylvania, even where of this after majority “If of the Justices sion. a an join issuing opinion, ... reviewing appeal an before us on the courts of this binding precedent opinion becomes [the] 578, 543 Pa. Tilghman, v. Commonwealth.” Commonwealth (1996). 898, 903 673 A.2d attempt that the Court’s agree majority

I with the decision, affirming rejecting the trial court and justify to Act, to the is subsequent Besch based on the amendments is reasoning with the Court’s problem flawed. The provide the amendments do evidence that while accurately legisla- to ascertain the majority Besch failed intent, not overrule the Besch the amendments do ture’s cannot create elementary legislature “It is decision. ‘clarifying’ legislation.” St. authority retroactively by passing Potter, 368, 638, 361, v. 398 Pa. 157 A.2d Joseph Lead Co. (1959). expressly provide failure to legislature’s certainty, for sake of a “The of stare decisis declares that rule follow, applied to should be those which conclusion reached in one case same, though parties may substantially be are even if facts 898, Tilghman, v. 543 Pa. different.” Commonwealth 903 n. 9 a applied retroactively prohibit finding amendments should be Therefore, I the courts.7 believe that contrary by Court was constrained to follow however distastefully. stability clarity by ensures a level of

Stare decisis is.8 providing guidance Haphazard assured as what the law majority, clarifying 7. As noted the effect of the amendments savings provi- would been different had the included a have apply post-trial sion such that the amendments would to all cases on Chamberlain, appeal. Commonwealth v. 731 A.2d 593. In Chamber- on lain, we held that the amendments to Section 1420 of the Code, attorney County (permitting a 16 Pa.S.C. district assistant) appoint deputy attorney-general as an enacted less than a a Lawson, year holding in 548 Pa. after this Court’s (holding under section district attor- ney authority appoint deputy attorney general lacks as an assistant case) drug holding prosecutor possession ‘‘eviscerated the rationale of Lawson." This Court went on to state that the amendments interpreted response "can as a to Lawson with the evident purpose correcting legislative our intent under- lying” matter, distinguishable section 1420. Chamberlain from the instant because in the amendments to section (d) savings by specifying provision included the in subsection apply pending amendment that it "shall to all cases on the effective date thereafter, to, including, subsection and all cases but not limited post-trial appeal.” those cases on or on position IWhile have taken a in certain cases that stare decisis should followed, very my position not be these situations are limited and Education, Ayala Philadelphia warranted under Bd. Public (1973) ("the doctrine of stare decisis is not error, perpetuating legal concept a vehicle for but rather which and, thus, justice orderly responds permits to the demands of See, flourish.”) growth process e.g., Pennsylvania of the law State Commonwealth, 324, County Association Commissioners v. 545 Pa. of (1996) (Castille, (stare dissenting) 681 A.2d 699 decisis should be wrongly County Allegheny abandoned where this Court held in v. 65, (1987) Pennsylvania, Commonwealth 517 Pa. 534 A.2d 760 requirement judicial system the state constitutional be unified requires responsibility funding that the Commonwealth assume all for branch); judicial Karaffa, Commonwealth v. 551 Pa. (1998) (Castille, (the dissenting) decision in v. Oleynik, holding 524 568 A.2d 1238 that the submission jury during unfairly of written instructions to the deliberations was prejudicial, wrongly decided and should be reversed. Trial courts particularly long complicated need discretion trials where the jury legal principles will be unable to understand or remember the charge); Selby, in the oral Commonwealth v. 547 Pa. (Castille, (the dissenting) decision in Commonwealth v. Brion, (1994) requiring judicial approval a level of confidence by judiciary erodes reversals Therefore, I while continue system. in the court people place decided, I wrongly that the decision Besch was to believe by to concur with the result reached feel constrained “savings by of a clause” majority given the absence pending its amendments to cases. legislature applying A.2d 848 Agent Pennsylvania Society Clayton HULSIZER, an Cruelty Animals, Appellant, Prevention of for the COMMITTEE, INC., Appellee. DAY LABOR Clayton Hulsizer, Agent Pennsylvania Society an Cruelty

for the Prevention of to Animals Day Committee, Labor Inc. Clayton Hulsizer, agent Pennsylvania

Appeal of an Soci- ety Curelty Animals, for the Prevention of and the Penn-

sylvania Society Cruelty for the Prevention of to Animals. Pennsylvania. Court of

Argued April 1999. July Decided Reargument Aug. Denied wearing wiretap may before an informer a consensual enter another police individual’s home to record a conversation to used investigation an undercover was erroneous. A defendant abandons expectation privacy by discussing his criminal involvement person). another

Case Details

Case Name: Commonwealth v. Shaffer

Court Name: Supreme Court of Pennsylvania

Date Published: Jul 21, 1999

Citation: 734 A.2d 840

Court Abbreviation: Pa.