Commonwealth v. Miller

Justice SAYLOR,

concurring.

I have difficulty with the majority’s treatment of the Superi- or 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 Majority Opinion at 593-95, 35 A.3d at 1212-13. Yet, the import of Austin’s rational is that the Commonwealth is, in fact, required to essentially establish the predicate offense when that offense is robbery. See Austin, 906 A.2d at 1220-22. To the extent that the majority is rejecting the Superior Court’s reasoning on this point, I believe the rationale should be addressed on its terms, particularly because the predicate offense in this case, also, is robbery.

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 of 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).