Commonwealth, Aplt. v. Baker-Myers, J. ( 2021 )

[J-80-2020]
IN THE SUPREME COURT OF PENNSYLVANIA
WESTERN DISTRICT
BAER, C.J., SAYLOR, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.
COMMONWEALTH OF PENNSYLVANIA, • No. 54 WAP 2019
Appellant Appeal from the Order of the
Superior Court entered May 21,
2019 at No. 1398 WDA 2016,
V. affirming in part and vacating in part
the Judgment of Sentence of the
Court of Common Pleas of Mercer
JAMES DUANE BAKER-MYERS, County entered August 19, 2016 at
No. CP-43-CR-0001303-2015 and
Appellee remanding.
: ARGUED: September 17, 2020
OPINION
JUSTICE DOUGHERTY DECIDED: JULY 21, 2021
In 2010, the legislature amended the corruption of minors statute, 18 Pa.C.S.
§6301, to include new subsection (a)(1)(ii), which provides for additional penalties when
the act or acts that corrupt the morals of a minor are sexual offenses. The subsection
provides: "Whoever, being of the age of 18 years and upwards, by any course of conduct
in violation of Chapter 31 (relating to sexual offenses) corrupts or tends to corrupt the
morals of any minor less than 18 years of age, or who aids, abets, entices or encourages
any such minor in the commission of an offense under Chapter 31 commits afelony of
the third degree." 18 Pa.C.S. §6301(a)(1)(ii). We granted discretionary review in this
case to consider whether the Superior Court properly determined the language "in
violation of Chapter 31" is an essential element of an offense under the statute. Upon
review, we agree with the Superior Court's assessment. And, because appellee James
Baker-Myers was acquitted of all Chapter 31 sexual offenses charged in the indictment
and submitted to the jury, we further agree that, under these circumstances, appellee's
conviction for corruption of minors, graded as athird-degree felony, cannot stand. We
therefore affirm in all respects.
1.
In the early morning hours of July 19, 2015, appellee, who was then 20 years old,
attempted to contact the 17-year-old victim by calling her phone nearly a dozen times.
The victim, who had been friends with appellee for several years but had not seen him in
weeks, missed his calls because she was sleeping. When she texted him back that
afternoon, appellee stated he needed to talk with her in person. The two exchanged
several messages before appellee twice called the victim around 9:00 p.m. and stated he
was outside her house. The victim greeted him at the end of her driveway before agreeing
to take aride with him on his dirt bike.
Appellee first drove the pair to some baseball fields located afew blocks from the
victim's house. Once there, appellee instructed the victim to leave her phone, explaining
he wanted their conversation "to be private and no one to listen into it." N.T. Trial,
4/12/2016 at 31. The victim complied and they then continued to drive to another location
along some railroad tracks. When they arrived, the victim removed abutton-up shirt that
was covering a swimsuit top as the shirt had become soaked in mud during the ride.
Afterwards, the victim and appellee talked for approximately twenty minutes.
At some point during the conversation, according to the victim, appellee "started
to get really touchy." Id. at 39. The victim responded by telling appellee she did not feel
that way about him and that she was seeing someone else. Undeterred, appellee began
to touch the victim's breasts before undoing part of her bathing suit top from behind. While
the victim attempted to retie the part appellee had undone, he undid the other part,
[J-$0-2020] -2
removed the bathing suit top entirely, and tossed it into a nearby bush. The victim
reiterated that she did not have feelings for appellee and attempted to retrieve her bathing
suit top from the bushes, but appellee picked her up and carried her approximately ten
feet further down the tracks, where he laid her on the grass.
The victim alleged that appellee proceeded to get on top of her, using his body
weight to pin her arms behind her back. He then removed her belt and started to undo
her pants. The victim again stressed she "didn't want to do this[,]" but appellee continued
to remove her pants and threw them to the side. Id. at 45. Then, while still restraining
her arms behind her back, appellee digitally penetrated the victim's vagina. Appellee next
began to disrobe. When he stood up to remove his pants, releasing the victim from his
grip, the victim attempted to get away from him and collect her clothing because she
"didn't want to have sex with him." Id. at 47. However, after removing his pants, appellee
grabbed the victim and placed her back on the ground, with his own body on top of her.
Despite the victim's pleas that she "really didn't want to do this[,]" appellee proceeded to
have vaginal intercourse with her. Id. at 48. Over the course of approximately ten
minutes, the victim tried to push appellee off her while repeatedly telling him to stop, but
he persisted, stating that she "probably liked him." Id. at 49. After the encounter, both
appellee and the victim got dressed and returned to the baseball fields to collect their
phones before appellee took the victim home.'
The Commonwealth subsequently charged appellee with rape, sexual assault,
aggravated indecent assault, and indecent assault (the sexual offenses). 2 He was also
'Appellee, who did not testify at trial, gave astatement to police in which he eventually
"admitted that they did have sex" but denied that it was without the victim's consent. N.T.
Trial, 4/12/2016 at 97. He also denied engaging in any of the other sexual conduct alleged
by the victim. See id.
2 18 Pa.C.S. §§3121, 3124.1, 3125, and 3126, respectively.
[J-80-2020] -3
charged with corruption of minors, graded as athird-degree felony. 3 In describing this
charge, the criminal information averred as follows:
Count 4: Corruption of Minors
The District Attorney of Mercer County, Pennsylvania, by this Information presents
that on (or about) July 19, 2015
defendant, above named, being of the age of 18 years and upwards by any course
of conduct related to sexual offenses corrupted or tended to corrupt the morals of
aminor less than 18 years of age, or did aid, abet, entice or encourage any such
minor in the commission of an offense under Chapter 31, in that defendant did
engage in sexual intercourse with a seventeen (17) year old female victim, said
incident occurring along an abandoned railroad grade in the Borough of Stoneboro,
Mercer County, Pennsylvania,
in violation of 18 Pa.C.S.A [§]6301(a)(1)( ik]
Criminal Information, 11/2/2015 at 2(emphasis in original).
The case proceeded to atwo-day jury trial. At the conclusion of the evidence, the
trial court charged the jury on the sexual offenses and on corruption of minors. Following
its initial charge on corruption of minors, the court conferred with the parties before giving
the following amended instruction:
The attorneys have asked me to clarify acouple of my instructions.... I'm
going to read specifically the charge for corruption of minors one more time.
Whoever being of the age of 18 and upwards by any course of conduct
in violation of Chapter 31, relating to the other sexual offenses being
rape, sexual assault, indecent assault, corrupts or tends to corrupt the
morals of any minor of less than 18 years of age or aids, abets, entices or
encourages any such minor in the commission of an offense under Chapter
31, again the sexual offenses[,] commits afelony of the third degree.
N.T. Trial, 4/13/2016 at 147-48 (emphasis added). 4 Twice after the jurors retired to
deliberate, they returned with questions concerning the corruption of minors charge. See
3 18 Pa.C.S. §6301(a)(1)(ii).
4 The trial court's original instruction on corruption of minors stated:
To find the defendant guilty of this offense, you must find that each of the
following three elements have [sic] been proven beyond a reasonable
[J-80-2020] -4
N.T. Deliberations, 4/13/2016 at 2, 8. In response, the trial court reiterated, in substantial
part, the instruction detailed above. See id. at 4, 8-9. The court also opined: "I don't
think it's the age that is the sticking point here. I
think it is the course of conduct in violation
of Chapter 31 relating to sexual offenses." Id. at 9.
Ultimately, the jury returned averdict of guilty of corruption of minors and not guilty
of the charged sexual offenses. The trial court later imposed asentence of one to two
years' imprisonment and a consecutive term of three years' probation. Additionally,
appellee's conviction for corruption of minors classified him as aTier Isexual offender,
thereby requiring him to comply with the fifteen-year registration and reporting
requirements of the Sexual Offender Registration and Notification Act. 5 Appellee did not
file post-sentence motions, but he did file atimely appeal.
doubt. First that the defendant was 18 years of age or older at the time of
the incident giving rise to the charge. Second, that the minor in this case
... was under 18 years of age at that time; and third, that the defendant
corrupted or intended to corrupt the morals of the minor by the following
alleged conduct: that he did aid, abet, entice or encourage her ... to
engage in sexual intercourse[.]"
N.T. Trial, 4/13/2016 at 138-39. Defense counsel complained that this instruction was
deficient since "only the first part [of subsection (a)(1)(ii)] applies[.]" Id. at 145. Counsel
also argued the jury should be instructed that, with respect to corruption of minors, "they
must []find beyond areasonable doubt [that appellee] committed one of the offenses for
which he's charged." Id. at 146. For his part, the prosecutor suggested the court should
"make it clear to the jury that ... sexual assault, rape[,] indecent assault, and aggravated
indecent assault are all under [C]hapter 31 of the crimes code." Id. at 145.
We observe that subsection (a)(1)(ii) "identifies two distinct offenses. The part at issue
addresses the application of the corruption of minors statute to sexual offenses committed
by the adult defendant. The second part ... addresses the application of the ... statute
where the defendant ``aids, abets, entices or encourages' a minor to commit a sexual
offense." Commonwealth v. Kelly, 102 A.3d 1025, 1030 (Pa. Super. 2014) (en bans),
quoting 18 Pa.C.S. §6301(a)(1)(ii). Aside from the trial court's initial charge, there has
otherwise been no suggestion throughout this case that the second part of subsection
(a)(1)(ii) applies to the present facts. We thus do not discuss it further.
5 See 42 Pa.C.S. §§9799.14(b), 9799.15(a)(1).
[J-80-2020] -5
On May 21, 2019, a sharply divided panel of the Superior Court sitting en Banc
affirmed in part and vacated in part appellee's judgment of sentence, and remanded the
case for resentencing. Commonwealth v. Baker-Myers, 210 A.3d 1093, 1096 (Pa. Super.
2019) (en banc). 6 The majority opinion, authored by Judge Alice Beck Dubow and joined
by four other jurists, concluded it was "constrained to agree" with appellee "that the
Commonwealth failed to prove an essential element of corruption of minors under
subsection (a)(1)(ii). Id. at 1094. The majority explained:
[I]n the instant case, the Commonwealth charged and prosecuted [appellee]
for [corruption of minors graded as athird-degree felony] and the Sexual
Offenses, but failed to obtain a conviction on any of the Sexual Offenses.
By acquitting [appellee] of the Chapter 31 Sexual Offenses, the jury found
that the Commonwealth had failed to establish beyond areasonable doubt
that [appellee] acted 'in violation of Chapter 31.' Thus, because the jury
found that [appellee] had not acted 'in violation of Chapter 31,' an essential
element of [corruption of minors graded as a third-degree felony], the
Commonwealth was unable to establish every element of [the crime].
Id. at 1096. In reaching its conclusion, the majority acknowledged it had uncovered no
authority directly on point. See id. Still, it resolved that our decision in Commonwealth v.
Magliocco, 883 A.2d 479 (Pa. 2005), guided its analysis. Although we discuss the
circumstances of Magliocco in much greater detail below, for present purposes it is
enough to note we held that where ajury "specifically found that Magliocco did not commit
the offense of terroristic threats, [his] conviction for ethnic intimidation, which requires as
an element the commission beyond a reasonable doubt of the underlying offense," was
infirm. Id. at 493. Having concluded appellee's conviction for corruption of minors graded
6 Previously,
on December 29, 2017, a divided three-judge panel of the Superior Court
reached the same result; however, en banc reargument was granted at the
Commonwealth's request.
[J-80-2020] -6
as athird-degree felony was similarly defective, the majority here vacated and remanded
for resentencing. 7
Judge Victor P. Stabile authored adissenting opinion joined by three other jurists.
In the dissent's view, the majority erred by "narrowly focusing on Magliocco, disregarding
post-Magliocco decisions that quarantine its reach, and overlooking [that court's] own
cogent analysis of the [corruption of minors] statute in [Commonwealth v. Anderson, 550
A.2d 807 (Pa. Super. 1988) (en banc)]." Baker-Myers, 210 A.3d at 1098. Along those
lines, the dissent first argued that Magliocco is not controlling, because the ethnic
intimidation statute at issue in that case had materially different language than the
corruption of minors statute's "course of conduct" element. See id. at 1102 ("Ethnic
intimidation requires proof of ``commission' of a predicate crime; [corruption of minors]
does not require proof of the 'commission' of a predicate crime, but only proof of a
'course of conduct,' i.e., acts that corrupt the morals of aminor.") (emphasis in original).
The dissent next examined in detail a series of decisions rendered after we decided
Magliocco — all of which we discuss further infra — that the dissent believed restricted
Magliocco's applicability. See id. at 1099-1102 (discussing Commonwealth v. Reed, 9
A.3d 1138 (Pa. 2010), Commonwealth v. Miller, 35 A.3d 1206 (Pa. 2012), Commonwealth
v. Moore, 103 A.3d 1240 (Pa. 2014), and Commonwealth v. Aikens, 168 A.3d 137 (Pa.
2017)). The dissent took the position that those decisions "demonstrate that Magliocco
does not pertain to the present case," and it faulted the majority for failing even to discuss
Citing Kelly, supra, the en banc majority proceeded to explain that a misdemeanor
charge of corruption of minors under subsection (a)(1)(i) is a lesser-included offense of
corruption of minors graded as a third-degree felony under subsection (a)(1)(ii). Thus,
although the majority vacated appellee's conviction for felony corruption of minors, it
noted a"[m]isdemeanor conviction remains valid as a lesser-included offense." Baker-
Myers, 210 A.3d at 1096, citing Kelly, 102 A.3d at 1032-33; see also Commonwealth v.
Sims, 919 A.2d 931, 938 (Pa. 2007) (it is settled law "that adefendant may be convicted
of an offense that is a lesser-included offense of the crime actually charged"). There is
no issue in this appeal challenging this aspect of the Superior Court's holding.
[J-80-2020] -7
them. Id. at 1102. Finally, the dissent similarly criticized the majority for ignoring the
Superior Court's decision in Anderson. The dissent noted, "[i]n the present case, as in
Anderson, the information did not allege commission of the [sexual offenses] as the basis
for the [felony corruption of minors] charge ... [but rather] on a course of conduct
culminating in sexual intercourse with the victim, and the Commonwealth presented
evidence of this course of conduct during trial." Id. at 1103 (emphasis in original).$
Accordingly, the dissent would have held appellee's sufficiency challenge failed.
The Commonwealth sought allowance of appeal, which we granted to address the
following two questions:
(1) Whether the Superior Court [], citing the case of [Magliocco], properly
held the language 'in violation of Chapter 31' is an essential element
necessary for a conviction of Corruption of Minors as afelony of the third
degree[?]
(2) Whether the evidence was sufficient for a conviction of Corruption of
Minors as afelony of the third degree despite the jury's acquittal of Rape,
Sexual Assault, Aggravated Indecent Assault and Indecent Assault[?]
Commonwealth v. Baker-Myers, 221 A.3d 182 (Pa. 2019) (per curiam). As these present
questions of law, our standard of review is de novo and our scope of review is plenary.
In re J.B., 189 A.3d 390, 414 n.24 (Pa. 2018).
II.
The principal area of disagreement in this case, as highlighted by the parties'
arguments and the competing opinions below, concerns the applicability of our decision
in Magliocco to subsection (a)(1)(ii) of the corruption of minors statute. For that reason,
we begin with acloser examination of Magliocco and its treatment in later decisions.
A.
8 Anderson was decided by the Superior Court more than two decades before the
legislature added subsection (a)(1)(ii) to the corruption of minors statute. As such, it does
not speak to the issue implicated here, and we do not consider it further.
[J-80-2020] -8
Magliocco concerned a sufficiency-of-the-evidence challenge in the "admittedly
unusual circumstance" where the defendant was convicted of ethnic intimidation but
acquitted of terroristic threats, the predicate offense. Magliocco, 883 A.2d at 492. 9 At the
time the defendant was charged, the ethnic intimidation statute provided, in pertinent part,
that aperson is guilty of ethnic intimidation
if, with malicious intention toward the race ... of another individual or group
of individuals, he commits an offense under any other provision of this
article or under Chapter 33 ... or under section 3503 ... or under section
5504 ... with respect to such individual ... or with respect to one or more
members of such group[.]
18 Pa.C.S. §2710(a) (emphasis added). Recognizing the ethnic intimidation statute
incorporates as an element a predicate offense — the applicable predicate offense in
Magliocco being terroristic threats — we pointedly remarked "the verdicts in this case are
inconsistent." Magliocco, 883 A.2d at 492 n.11. But, we also explained "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, citing
Commonwealth v. Carter, 282 A.2d 375, 376 (Pa. 1971) ("An acquittal cannot be
interpreted as aspecific finding in relation to some of the evidence.") (internal quotation
and citation omitted). Our analysis thus shifted to a more straightforward consideration
of whether the Commonwealth had proven all necessary elements of ethnic intimidation
beyond a reasonable doubt where the crime of terroristic threats, on which the jury
acquitted the defendant, was "separately charged and prosecuted and is also aspecific
statutory element of another charged offense." Id.We held the Commonwealth failed to meet its burden under those circumstances.
Although we emphasized the Commonwealth was not required to charge or secure a
conviction for the predicate crime in order to secure aconviction for ethnic intimidation,
9 See 18 Pa.C.S. §§2701 and 2706, respectively.
[J-80-2020] -9
we declined to ignore the special weight acquittals have been accorded in the law. See
id. (citations omitted). As aresult, we concluded that in order to sustain the defendant's
ethnic intimidation conviction "the factfinder had to conclude beyond areasonable doubt
that, among other things, he actually 'committed' the offense of terroristic threats" — a
burden the Commonwealth did not satisfy given that the jury, by means of its acquittal,
"specifically found [the defendant] did not commit the offense of terroristic threats[.]" Id.
at 492-93. We nevertheless emphasized that the Commonwealth need not formally
charge apredicate offense in such situations "as long as it makes clear which offense it
is pursuing as the predicate offense for purpose of the ethnic intimidation charge, and the
factfinder is so made aware and, in the case of ajury, so charged." Id. at 492.
This concept came into sharper focus afew years later in Reed. There, we found
Magliocco provided "limited guidance" in our interpretation of astatute prohibiting unlawful
contact with aminor. Reed, 9A.3d at 1147. See 18 Pa.C.S. §6318(1) ("A person commits
an offense if he is intentionally in contact with aminor ... for the purpose of engaging in
... [a]ny of the offenses enumerated in Chapter 31 (relating to sexual offenses). "). In
that case, ajury convicted the defendant of unlawful contact with a minor but acquitted
him of a number of underlying charged sexual offenses. We granted review to consider
what effect the defendant's acquittals had on the grading of his unlawful contact
conviction, since the grading depended on the nature of the underlying offense, i.e., "the
purpose" for which the defendant contacted the minor. Id.; see id. §6318(b). In this
respect, we discerned asalient difference between the circumstances in Magliocco and
those in Reed, in that the former involved predicate offenses and the latter did not. At the
same time, we recognized the cases shared "one common feature: . . . the
Commonwealth was not required to charge the defendant with the" predicate offenses in
order to secure a conviction for the offenses under review, i.e., ethnic intimidation in
[J-80-2020] -10
Magliocco and unlawful contact in Reed. Reed, 9 A.3d at 1147. But since the
Commonwealth did charge the underlying offenses in Reed, and the jury acquitted the
defendant of those crimes, we held the acquittals "cannot be ignored when applying the
appropriate grading[.]" Id.; see id. (we "cannot countenance" situation where "the
sentencing court had to guess which offense [the defendant] sought to commit when he
contacted [the minor]").
We revisited the issue of inconsistent verdicts in Miller — this time where the
defendant was convicted of second-degree murder but acquitted of the predicate felony
of robbery. Initially, we restated that the decision in Magliocco "reflects our conclusion
that the Commonwealth fails to prove an element of the offense of ethnic intimidation if
the factfinder acquits the accused of the predicate offense." Miller, 35 A.3d at 1212; see
id. (" From aplain reading of the statutory text, there is no question that the commission
of the predicate offense is an element of ethnic intimidation.") (emphasis in original).
However, we reasoned this principle had little to do with the language of the second-
degree murder statute, which "does not set forth or require the commission of the
predicate offense as an element." Id.; see id. (the phrase "[p]erpetration of afelony" as
used in the second-degree murder statute, 18 Pa.C.S. §2502(b), "is statutorily defined in
a very broad manner" and does not require the Commonwealth to prove the accused
actually committed the predicate offense). Accordingly, we held that Magliocco, which
was grounded in the delineation of the elements of ethnic intimidation as established in
the text of that statute, did not control the outcome in Miller, "where avery different statute
is at issue." Id. at 1213; see id. at 1212 ("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.") (emphasis added).
[J-80-2020] -11
We reached a similar conclusion in Moore, a case in which ajury acquitted the
defendant of murder and attempted murder but convicted him of possession of an
instrument of crime (PIC) for his role in agunfight. We began our decision in Moore by
remarking that, although the defendant had framed his issue as asufficiency challenge,
"such challenges are more appropriately characterized as challenges to the inconsistency
of the jury's verdict, rather than to the sufficiency of the evidence to sustain a particular
conviction." Moore, 103 A.3d at 1242 n.3. Accord United States v. Powell, 469 U.S. 57,
67 (1984) (cautioning that sufficiency review "should not be confused with the problems
caused by inconsistent verdicts" because the former entails an assessment of whether
the evidence was sufficient to convict on aparticular offense and is "independent of the
jury's determination that evidence on another count was insufficient"). Beyond this point,
we proceeded to express our continued recognition that jury acquittals should not be
interpreted as specific factual findings arising from the evidence; rather, an acquittal "may
merely show lenity on the jury's behalf, or that 'the verdict may have been the result of
compromise, or of amistake on the part of the jury."' Moore, 103 A.3d at 1246, quoting
United States v. Dunn, 284 U.S. 390, 394 (1932). Taking these principles into account,
we clarified that the decisions in Magliocco and Reed, properly understood, "involve
largely idiosyncratic sufficiency or grading challenges that, critically, do not entail jury
inferences and so are not in conflict with the principle permitting inconsistent verdicts or
its corollary that factual findings may not be inferred from ajury's acquittal." Id. at 1247-
48. Instead, we reasoned, "[i]t was the fact of the jury's acquittal — not any factual
inference drawn from the acquittal — and the statutory elements that drove our
discussion" in those cases. Id. at 1248. And, consistent with this understanding, we held
in Moore that although the defendant's "murder and attempted murder acquittals may be
logically inconsistent with [his] PIC conviction, in light of our enduring acceptance of
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inconsistent verdicts in Pennsylvania, ... the acquittals are not grounds for reversal of
[the defendant's] PIC conviction[.]" Id. at 1250. 10
Finally and most recently, in Aikens we again addressed the unlawful contact with
aminor statute that was at issue in Reed. Similar to Reed, ajury in Aikens convicted the
defendant of unlawful contact but acquitted him of the underlying substantive offense for
which he contacted the minor — in that case, involuntary deviate sexual intercourse
(IDSI). Unlike in Reed, however, we deemed it significant that the trial court in Aikens
"specifically instructed the jury that [the defendant's] contact with the victim was alleged
to be for the purpose of engaging in IDSI and, thus, this was the only basis upon which
[the defendant] could have been convicted of unlawful contact with aminor." Aikens, 168
A.3d at 143; see id. (" in convicting [the defendant] of the offense of unlawful contact with
aminor the jury necessarily found as fact that [he] contacted the minor victim in this case
for the specific purpose of engaging in IDSI "). 11 Stated otherwise, we found Aikens
distinguishable from Reed because although the jury acquitted the defendant of the
Chapter 31 offenses underlying his conviction for unlawful contact with a minor, "any
guesswork this Court was concerned about in Reed regarding the purpose for which the
10 Justice Saylor authored a concurring opinion in Moore in which he opined, "it should
be reasonably clear that Magliocco has been effectively limited to its facts." Moore, 103
A.3d at 1250-51 (Saylor, J., concurring). Then-Justice (now Chief Justice) Baer, in a
separate concurring opinion, likewise noted "Magliocco is distinguishable from the case
at bar, which does not involve acompound offense." Id. at 1251 n.1 (Baer, J., concurring).
11 More precisely, the trial court in Aikens instructed the jury as follows:
The [defendant] has been charged with unlawful contact with a minor. To
find [the defendant] guilty of this offense, you must find that each of the
following elements has been proven beyond areasonable doubt: First, that
[the defendant] was intentionally in contact with aminor — the victim in this
case — second, that contact was for the purpose of engaging in an
unlawful act— and in this case, that unlawful act is alleged to be [IDSI],
the crime that we just discussed[.]
Aikens, 168 A.3d at 138 (internal quotations and citation omitted; emphasis added).
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defendant made the unlawful contact was eliminated by the trial court's instruction and
jury verdict on that charge." Id. at 143-44.
B.
Having reviewed the pertinent case law, we now return to the arguments of the
parties in the present appeal. The Commonwealth, drawing heavily from Judge Stabile's
dissent below, maintains the en banc Superior Court majority erred in relying on
Magliocco because (1) Magliocco's statutory analysis is distinguishable, and (2) post-
Magliocco case law limits Magliocco's scope. See Commonwealth's Brief at 11. With
respect to the first point, the Commonwealth argues that whereas the ethnic intimidation
statute expressly requires commission of apredicate offense, subsection (a)(1)(ii) of the
corruption of minors statute "only requires the Commonwealth establish 'any course of
conduct in violation of Chapter 31."' Id. at 18, quoting 18 Pa.C.S. §6301(a)(1)(ii). In this
vein, the Commonwealth emphasizes it did not charge the specific sexual offenses as the
underlying basis for the offense of corruption of minors, "but merely charged acourse of
conduct ending in sexual intercourse with the minor victim." Id. It further claims the trial
court's jury instruction did not require the jury to find appellee actually committed the
sexual offenses; rather, it only required the jury to find appellee "corrupted the morals of
a minor by any course of conduct in violation of Chapter 31, relating to the other
sexual offenses." Id. at 22 (emphasis in original); see id. ("the jury was still free to fully
consider the evidence and render a verdict of guilty based upon specific acts, not
offenses, in violation of Chapter 31 ") (emphasis in original). Relative to its second point,
the Commonwealth asserts that, "[fjollowing Magliocco and Reed, this Court has
continually rejected opportunities to apply Magliocco to criminal statutes other than
[e]thnic [i]ntimidation." Id. at 14; see id. at 14-18 (discussing Miller, Moore, and Aikens).
[J-80-2020] -14
Appellee disagrees on both fronts. He first argues "the principles, authority and
logic of Magliocco command the same result in the present case." Appellee's Brief at 10.
As appellee sees it, there is no meaningful distinction between the language in the ethnic
intimidation statute — which requires proof the defendant commits an offense under
one of the delineated statutes — and corruption of minors under subsection (a)(1)(ii) —
which requires proof the defendant commits acts in violation of Chapter 31. See id. at
13 ("Simply stated, whether adefendant is acquitted of committing an offense under or
acts in violation of a particular statute is a distinction without substance .... In both
cases, once the overarching offense incorporates a predicate offense as a material
element, acquittal on the predicate offense renders a conviction on the overarching
offense a logical and practical impossibility.") (emphasis in original). 12 Regarding this
Court's post-Magliocco case law, appellee detects no inconsistency in our decisions,
explaining we "correctly declined to apply Magliocco since these cases did not involve
patently inconsistent verdicts for predicate and overarching offenses." Id. at 18. More
importantly, appellee submits that here, as in Magliocco, "[s]ince there was an acquittal
on the predicate offense(s), there could be no basis for the conviction to the overarching
offense, since the factfinder concluded the predicate offense, as an element of the
overarching offense, was not proven beyond areasonable doubt." Id. at 10. 13
12 The Defender Association of Philadelphia filed an amicus curiae brief in support of
appellee wherein it reinforces these arguments. See, e.g., Amicus Curiae Brief at 7
("Committing a predicate offense is no different than engaging in conduct in violation of
the law defining the predicate offense. Both statutes require the same thing —
substantive culpability for the underlying predicate offense[.]"); id. at 10 ("[T]he post-
Magliocco cases cited by the Commonwealth show nothing other than that statutes that
do not require substantive culpability for the predicate offense are not controlled by
Magliocco.") (emphasis in original).
13 Appellee raises an additional argument in his brief, contending his sentence "should
also be vacated since the evidence was insufficient to establish that [he] committed acts
constituting a'course of conduct."' Appellee's Brief at 22; see id. at 22-24 (discussing the
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Ill.
As an initial matter, we candidly acknowledge our prior jurisprudence in this arena
is helpful only up to acertain point. The parties recognize — and rightfully so — that the
language of subsection (a)(1)(ii) of the corruption of minors statute is facially different than
the language at issue in Magliocco and those decisions following in its wake. This patent
textual difference requires that we engage in statutory construction of subsection (a)(1)(ii),
a relatively new provision we have never before examined. We do so mindful that the
object of all statutory interpretation and construction "is to ascertain and effectuate the
intention of the General Assembly." 1Pa.C.S. §1921(a). Where the language of astatute
is unambiguous, "the letter of it is not to be disregarded under the pretext of pursuing its
spirit." 1Pa.C.S. §1921(b). The Statutory Construction Act further directs that we must
interpret words in astatute "according to their common and approved usage; but technical
words and phrases ... shall be construed according to such peculiar and appropriate
meaning or definition." 1 Pa.C.S. §1903. It is only when the language in a statute is
ambiguous that we resort to other canons of statutory construction. See 1 Pa.C.S.
§1921(c).
We begin by restating once more the pertinent statutory language: "Whoever,
being of the age of 18 years and upwards, by any course of conduct in violation of Chapter
31 (relating to sexual offenses) corrupts or tends to corrupt the morals of any minor less
than 18 years old of age ...commits a felony of the third degree." 18 Pa.C.S.
§6301 (a)(1)(ii). At bottom, the parties disagree over the meaning of the discrete phrase
"by any course of conduct in violation of Chapter 31." The Commonwealth more narrowly
Superior Court's decision in Kelly, 102 A.3d at 1031-32, wherein that court held "the use
of the phrase ``course of conduct' in the first provision of subsection (a)(1)(ii) imposes a
requirement of multiple acts over time"). Given our disposition, we do not address this
secondary argument or the propriety of the decision in Kelly.
[J-80-2020] -16
focuses on the first part of the phrase, i.e., "any course of conduct," to argue the statute
requires only afinding of specific acts, not offenses. In other words, the Commonwealth
does not view the statute's phrasing as creating "predicate and overarching offenses," or
a"compound offense," as our precedents have variably described them. Appellee takes
adifferent approach and reaches the opposite conclusion. Highlighting the second part
of the phrase, i.e., "in violation of Chapter 31," appellee maintains this language clearly
incorporates apredicate offense as amaterial element of the overarching offense —just
as we determined with respect to the ethnic intimidation statute at issue in Magliocco.
Moreover, appellee does not dispute the Commonwealth's portrayal of the statute as
requiring afinding of specific acts, but he argues that only those acts that are "in violation
of Chapter 31" satisfy the commands of the statute. We conclude appellee has the better
of the two arguments.
Most significantly, we find the Commonwealth, like the dissent below and here,
sets its sights on the wrong statutory target. The dispositive language in the statute is
not, as the Commonwealth posits, the phrase "any course of conduct"; instead, this case
is properly resolved by interpreting the language that directly follows, i.e., the phrase "in
violation of Chapter 31." The key word in this phrase is "violation," an undefined term.
We have previously recognized that "[o]ne way to ascertain the plain meaning and
ordinary usage of terms is by reference to adictionary definition." In re Beyer, 115 A.3d
835, 839 (Pa. 2015). According to Black's Law Dictionary, the noun "violation" typically
refers to "[a]n infraction or breach of the law; a transgression." Violation, BLACK's LAw
DICTIONARY (11th ed. 2019). Applying this definition here, it becomes clear that the phrase
"in violation of is not all that different from the phrase "commits an offense" as interpreted
in Magliocco; both are aimed at some act that amounts to illegal conduct under the law.
Thus, the most natural understanding of the phrase "in violation of Chapter 31," as used
[J-80-2020] -17
in subsection (a)(1)(ii) of the corruption of minors statute, is that it operates to create —
as an element of the offense — a requirement that the Commonwealth prove beyond a
reasonable doubt that the accused engaged in acourse of conduct involving abreach of
some law or laws contained in Chapter 31 of the Crimes Code.
However, this is not to say the Commonwealth must formally charge or obtain a
conviction on the Chapter 31 offense or offenses serving as the predicate for the felony
corruption of minors charge in order to sustain aconviction for corruption of minors. It is
on this limited point that our precedents provide more useful guidance. As we have
repeatedly held in cases like Magliocco and Reed, where an indictment alleges and the
jury is specifically charged on the underlying predicate offense, an acquittal of that
underlying predicate offense renders the evidence insufficient as a matter of law with
respect to the primary offense. But there is no similar evidentiary sufficiency problem
when the Commonwealth elects to forego charging one or more predicate offenses, "as
long as it makes clear which offense it is pursuing as the predicate offense for purposes
of the [felony corruption of minors] charge, and the factfinder is so made aware and, in
the case of ajury, so charged." Magliocco, 883 A.2d at 492. 14
Nevertheless, we reject the Commonwealth's argument that it did not run afoul of
these principles in this particular case. First, with respect to the criminal information, while
it is true the only "predicate" conduct alleged was that appellee "did engage in sexual
intercourse with" the victim, Criminal Information, 11/2/2015 at 2, we also observe the
offense description curiously omitted the phrase "in violation of Chapter 31" and replaced
it with a less stringent showing of "conduct related to sexual offenses." Id. (emphasis
14 Appellee conceded this very point at oral argument before this Court. See Oral
Argument, Morning Session, 9/17/2020, at 1:50:20-1:51:00 (available at
hops://www.youtube.com/watch?v=FvJgcyHceXs&t=6652s). Amicus likewise agrees.
See Amicus Curiae Brief at 2("[T]his crime requires substantive culpability for a'predicate
offense' (not aconviction for this 'predicate offense,' but substantive culpability for it). ").
[J-80-2020] -18
added). Even more importantly, contrary to the Commonwealth's suggestion — based
on aselective quotation from the transcript — that the trial court did not instruct the jury it
was required to find appellee actually committed one or more of the charged sexual
offenses, see Commonwealth's Brief at 22, areview of the court's full instruction proves
otherwise. Notably, the trial court instructed the jury that it was required to find "any
course of conduct in violation of Chapter 31, relating to the other sexual offenses being
rape, sexual assault, indecent assault[.]" N.T. Trial, 4/13/2016 at 147 (emphasis
added). In light of this clear instruction regarding the applicable predicate offenses, which
was given in part at the prosecutor's request, see supra n.4, we are unpersuaded by the
Commonwealth's attempt to salvage appellee's felony corruption of minors conviction by
analogizing the circumstances of his case to those in Aikens. See Commonwealth's Brief
at 18, 22 (arguing this case is "similar to Aikens" because the Commonwealth did not
charge the Chapter 31 offenses as the underlying basis for the corruption of minors
offense and the trial court did not so instruct the jury). The decision in Aikens does not
support the Commonwealth's position under the facts presented.
IV.
In sum, we conclude the Superior Court properly determined the language "in
violation of Chapter 31" is an essential element of afelony corruption of minors offense
under 18 Pa.C.S. §6301(a)(1)(ii). Although the Commonwealth is not required to formally
charge or secure aconviction for apredicate Chapter 31 offense, where, as here, the jury
is specifically instructed on the predicate offense or offenses pertaining to the corruption
of minors charge, and the jury then renders an acquittal on all such predicates, a
conviction for felony corruption of minors cannot stand. In reaching this conclusion, we
do not disturb the longstanding principle permitting inconsistent verdicts or its corollary
that factual findings may not be inferred from a jury's acquittal. Instead, we simply
[J-80-2020] -19
recognize the statute's unusual phrasing has left it vulnerable to "idiosyncratic sufficiency
... challenges" like the one launched in Magliocco. Moore, 103 A.3d at 1247-48. And,
as demonstrated, it is "the fact of the jury's acquittal — not any factual inference drawn
from the acquittal — and the statutory elements" of the offense that drive this conclusion.
Id. at 1248.
The order of the Superior Court is affirmed.
Chief Justice Baer and Justices Saylor, Todd, Donohue, and Wecht join this
opinion.
Justice Mundy files adissenting opinion.
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