DocketNumber: 22 & 23 EAP 2003
Judges: Cappy, Castille, Nigro, Newman, Saylor, Eakin, Lamb, Former
Filed Date: 9/28/2005
Status: Precedential
Modified Date: 10/19/2024
CONCURRING AND DISSENTING OPINION
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
. 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.
. 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).