Com. v. Baker-Myers, J. ( 2017 )


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  • J-S43009-17
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    COMMONWEALTH OF PENNSYLVANIA                        IN THE SUPERIOR COURT
    OF
    PENNSYLVANIA
    Appellee
    v.
    JAMES DUANE BAKER-MYERS
    Appellant                      No. 1398 WDA 2016
    Appeal from the Judgment of Sentence August 19, 2016
    In the Court of Common Pleas of Mercer County
    Criminal Division at No: CP-43-CR-0001303-2015
    BEFORE: STABILE, SOLANO, and FITZGERALD, * JJ.
    DISSENTING MEMORANDUM BY STABILE, J.:                  FILED DECEMBER 29, 2017
    The learned Majority concluded that the evidence in support of
    Appellant’s conviction for felony-three corruption of minors was legally
    insufficient.   In reaching its conclusions, the Majority relied primarily upon
    Commonwealth           v.    Magliocco,        
    883 A.2d 479
       (Pa.   2005),   and
    Commonwealth v. Kelly, 
    102 A.3d 1025
     (Pa. Super. 2014) (en banc). The
    Majority also distinguished the instant matter from Commonwealth v.
    Aikens, 
    168 A.3d 137
     (Pa. 2017). Because I disagree with the Majority’s
    conclusion, I would affirm the judgment of sentence for the following reasons.
    Our Supreme Court explicitly limited the holding in Magliocco to the
    ethnic intimidation statute, and expressly stated that it was not “generally
    ____________________________________________
    *   Former Justice specially assigned to the Superior Court.
    J-S43009-17
    applicable to other offenses.” Commonwealth v. Miller, 
    35 A.3d 1206
    , 1213
    (Pa. 2012) (discussing, inter alia, the applicability of Magliocco). Yet, despite
    the limited applicability of Magliocco, the Majority applies it to the case sub
    judice.
    To the extent Magliocco is applicable, I would note that operative
    language in Section 6301 of the Crimes Code at issue here is different from
    the operative language in Section 2710 of the Crimes Code at issue in
    Magliocco.
    At the time Magliocco was decided, Section 2710 of the Crimes Code
    provided that a person 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 a group.”
    18 Pa.C.S.A. § 2710(a) (emphasis added).
    The crime of corruption of minors, at issue here, is defined in the Crimes
    Code as follow:
    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 a felony of the third degree.
    18 Pa.C.S.A. § 6301(a)(1)(ii) (emphasis added). As can be seen, proof of
    commission of a predicate crime was an element of the crime of ethnic
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    intimidation in Magliocco. Here, the felony crime of 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 a minor.
    The Majority finds that the Section 2710 and Section 6301 are similar in
    that both require proof of the commission of predicate crimes. The Majority
    states “Kelly makes clear that felony-three COM, like the ethnic intimidation
    statute discussed in Magliocco, requires that the defendant commit
    predicate crimes….”         Majority Memorandum at 10 (emphasis added).       I
    believe this to be incorrect, as this Court in Kelly held that “any course of
    conduct” requires proof of more than one act.
    1 Kelly, 102
     A.3d at 1033.
    Proof of acts, as opposed to proof of the commission of a predicate crime, to
    establish the felony-three corruption of minor crime is consistent with how
    Section 6301 has been construed. See Commonwealth v. Anderson, 
    550 A.2d 807
     (Pa. Super. 1988) (en banc).
    In Anderson, we sustained a conviction for corruption of a minor even
    though the defendant had been acquitted of two counts of indecent assault
    based upon the same acts underlying the corruption of a minor charge. We
    reinstated the jury’s verdict for corruption of minors stating:
    ____________________________________________
    1 In Kelly, our Court, sitting en banc, merely addressed the question of what
    constitutes “course of conduct” for purposes of Pa.C.S.A. § 6301. We held
    that course of “conduct of conduct” requires proof of multiple acts over time
    in violation of Chapter 31. Kelly, 102 A.3d at 1031.
    -3-
    J-S43009-17
    Because we find that the convictions resulted from the
    introduction of sufficient evidence of specific acts by
    Anderson, and because these underlying acts, and not
    indecent assault, formed the basis of the corruption of minors
    charge, we reverse the trial court’s order, reinstate the jury
    verdict and remand for sentencing.
    Id. at 807. (Emphasis added). Indeed, we noted with disapproval that
    [i]n its discussion, the trial court refers to “indecent assault” and
    the underlying alleged “specific acts” interchangeably, implying
    that they amount to the same thing. The court then proceeds on
    the assumption that indecent assault is an element of corruption
    of a minor and so interprets the general jury verdict as presenting
    a finding that the underlying act was not committed.
    Id. at 808.
    We explained that:
    It is well settled that “[a]n acquittal cannot be interpreted as a
    specific finding in relation to some of the evidence.”
    Commonwealth v. Carter, 
    444 Pa. 405
    , 408, 
    282 A.2d 375
    , 376
    (1971) (citation omitted). When a general verdict is rendered,
    knowledge of the basis of the decision rests only with the jury
    itself. Therefore, it is impossible, not to mention improper, to
    draw specific conclusions from a general verdict. Applied to the
    present case, this principle yields the conclusion that an acquittal
    on indecent assault cannot be interpreted to mean as a matter of
    law that there was insufficient evidence to establish that the
    underlying acts in fact occurred.
    Id. at 809.
    Further, we noted that:
    the information did not allege the crime of indecent assault as the
    basis of the corruption of minors charge. Rather, the information
    specifically based the corruption of minors charge upon the acts
    of cunnilingus. Although the jury returned a verdict of not guilty
    of indecent assault by committing the acts of cunnilingus, we
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    J-S43009-17
    cannot determine if the jury decided that the acts of cunnilingus
    did not occur, or if the acts of cunnilingus occurred but the victims
    consented to them, or if the jury was simply exercising leniency.
    We cannot determine why the jury returned a verdict of not
    guilty, and therefore cannot say as a matter of law that the
    jury believed that the acts of cunnilingus did not occur.
    Id. (emphasis added).
    Here, similar to Anderson, the information did not allege rape, sexual
    assault, aggravated indecent assault, or indecent assault as the basis for the
    corruption of minors charge. Rather, the information based the corruption of
    minors charge on the act of engaging in sexual intercourse with a 17 year-old
    victim. Although the jury returned a verdict of not guilty on the charges of
    rape, sexual assault, aggravated indecent assault, and indecent assault, it is
    impossible to determine whether the jury decided that the act of sexual
    intercourse did not occur, or that other elements of the other crimes charged
    were not proven to the jury’s satisfaction, or whether the jury was simply
    exercising leniency.    In light of Anderson, I would reject Appellant’s
    sufficiency of the evidence challenge.
    Moreover, as in Aikens, the trial court here specifically instructed the
    jury that, to find Appellant guilty of corruption of minors, it was required to
    find that Appellant corrupted or tended to corrupt the morals of a minor while
    engaged in a course of conduct in violation of Chapter 31 relating to the other
    sexual offenses being rape, sexual assault, and indecent assault. See N.T.
    Trial, 4/12/16-4/13/16, at 147.    Because the jury found Appellant was guilty
    of corruption of minors, the conviction for corruption of minors must stand
    -5-
    J-S43009-17
    even if the jury ultimately found Appellant did not commit any of the
    underlying Chapter 31 offenses.     Thus, in my view, the Commonwealth
    presented sufficient evidence to support Appellant’s conviction of corruption
    of minors.   While the verdicts rendered here are inconsistent, inconsistent
    verdicts are lawful. See, e.g., Commonwealth v. Talbert, 
    129 A.3d 536
    ,
    545 (Pa. Super. 2015). Accordingly, I would affirm the judgment of sentence.
    -6-
    

Document Info

Docket Number: 1398 WDA 2016

Filed Date: 12/29/2017

Precedential Status: Non-Precedential

Modified Date: 12/13/2024