Com. v. Baker-Myers, J.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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
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* Former Justice specially assigned to the Superior Court.
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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:
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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.
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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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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
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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.
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