Commonwealth v. Magliocco ( 2005 )

CONCURRING AND DISSENTING OPINION

Justice SAYLOR.

On the fair-warning issue implicated by Appellant’s conviction for possessing an instrument of a crime, I agree with the position taken by President Judge Emeritus McEwen in his concurring and dissenting opinion in the Superior Court. See Commonwealth v. Magliocco, 806 A.2d 1280, 1290 (Pa.Super.2002) (McEwen, P.J.E., concurring and dissenting). Principally, I support the position that, under applicable due process principles requiring fair warning of punitive consequences, the corrective construction of the possession-of-an-instrument-of-crime statute applied by the majority is too remote from the statute’s prescribed terms to justify departure from those plain terms to support the imposition of criminal punishment. See generally McBoyle v. United States, 283 U.S. 25, 27, 51 S.Ct. 340, 341, 75 L.Ed. 816 (1931) (“Although it is not likely that a criminal will carefully consider the text of the law before he murders or steals, it is reasonable that a fair warning should be given to the world in language that the common world will understand, of what the law intends to do if a certain line is passed.”).

On the inconsistent verdicts issue, I would adopt the Superi- or Court’s view that, particularly given the significance of the grading of the offense of terroristic threats to grading of the derivative, ethnic intimidation offense, see 18 Pa.C.S. § 2710(b), as a matter of statutory construction, the particular statute under consideration should be construed as requiring an actual conviction of the underlying offense as an essential element. See Magliocco, 806 A.2d at 1287; accord Commonwealth of Pennsylvania Commission on Sentencing, Sentencing Guidelines Implementation Manual § 308.3(d), at 95 (5th ed.1997) (indicating that “[cjonviction for Ethnic Intimidation necessarily requires conviction for one of the underlying offenses listed”).¹ I am less comfortable with the majority’s approach, which appears to rely on principles of constitutional law and/or to represent a common-law ruling extending outside the ethnic intimidation context. To the degree that constitutional principles are involved, the majority’s holding appears to me to be in tension with decisions of the United States Supreme Court. Cf. United States v. Powell, 469 U.S. 57, 64-69, 105 S.Ct. 471, 476-79, 83 L.Ed.2d 461 (1984) (declining to overturn a criminal conviction based upon inconsistency between verdicts, where jurors convicted a defendant of using the telephone to facilitate the commission of certain felonies, but acquitted on the felony counts themselves).² In terms of common law decision making, I acknowledge that there are reasonable counterarguments lodged against the approach taken in prevailing decisions governing inconsistent verdicts. See, e.g., Eric L. Muller, The Hobgoblin of Little Minds ? Our Foolish Law of Inconsistent Verdicts, 111 Harv. L.Rev. 771 (1998). It has been the concern of the United States Supreme Court however, that, once exceptions to the general rule against the affordance of relief based on inconsistent verdicts are devised, they are likely to overcome the general rule. See Powell, 469 U.S. at 67, 105 S.Ct. at 478. The Court’s reasoning is that distinctions defining the exceptions, including the prescribed-necessary-offense basis adopted by the majority here, cannot be reasonably maintained. See id. (rejecting a prescribed-necessary-offense exception to the general rule proscribing relief based on inconsistent verdicts as “fall[ing] almost of its own weight”).

Given such difficulties, I would reserve the broader review for a case in which it is essential to the mandate.

1 . As Magliocco notes, such construction also avoids any conflict with the Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), line of decisions in instances in which there is no jury waiver.

2 . Similar holdings have been rendered in matters in which there was a jury waiver. See Harris v. Rivera, 454 U.S. 339, 102 S.Ct. 460, 70 L.Ed.2d 530 (1981).