J-S40045-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

SCOTT BRADLEY KINGSTON,

Appellant No. 2016 MDA 2012

Appeal from the PCRA Order October 22, 2012

In the Court of Common Pleas of Bradford County

Criminal Division at No(s): CP-08-CR-0000735-2009

BEFORE: BENDER, BOWES, and PANELLA, JJ.

CONCURRING AND DISSENTING MEMORANDUM BY BOWES, J.:

FILED OCTOBER 29, 2014

I agree with the distinguished majority that Appellant’s subject matter 

jurisdiction claim is without merit. The courts of common pleas in 

Pennsylvania are competent to try any criminal case arising in Pennsylvania 

and therefore have subject matter jurisdiction. Commonwealth v. Bethea, 

828 A.2d 1066 (Pa. 2003). Appellant’s actual challenge relates to venue. In 

this respect, I concur with the majority’s assessment that his venue position 

does not afford him relief. Appellant is not eligible for relief on his venue 

issue because it was waived, 42 Pa.C.S. § 9544(b), and he has not raised it 

as an ineffective assistance of counsel claim.1 However, I respectfully 

____________________________________________

1

 The majority finds Appellant’s venue claim is not cognizable. The use of 

this phrase was the subject of a portion of my disagreement with the learned 

(Footnote Continued Next Page)
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dissent from the majority’s suggestion that trial counsel may be ineffective 

for not contesting Appellant’s sentences on three distinct solicitation to 

commit perjury counts and three separate solicitation to hinder prosecution 

charges, based on 18 Pa.C.S. § 906. 

Initially, the majority incorrectly maintains that a similar § 906 issue 

was presented but found to be waived in Commonwealth v. Wade, 33 

A.3d 108 (Pa.Super. 2011) (Bowes, J.). See Majority Memorandum, at 9 

n.2. Further, the majority errs in determining that Wade implicitly 

recognized that § 906 would bar multiple convictions of possession of an 

instrument of crime (“PIC”). Section 906 was not at issue in Wade and was 

neither mentioned nor analyzed. Indeed, the defendant therein did not raise 

any contention under § 906. This is because § 906 no longer pertains to 

PIC, which was the relevant crime being discussed in the portion of Wade

relied on by the majority. Compare Commonwealth v. Ford, 461 A.2d 

1281 (Pa.Super. 1983) (holding, based on an earlier version of 18 Pa.C.S. § 

906, which read, “A person may not be convicted of more than one offense 

defined by this chapter for conduct designed to commit or to culminate in 

the commission of the same crime[,]” that a defendant cannot be sentenced 

(Footnote Continued) _______________________

author of the present majority in Commonwealth v. Descardes, 2014 PA 

Super 210 (en banc). To the extent that the majority decision can be read 

to suggest that Appellant could raise his venue challenge via a writ of 

habeas corpus or coram nobis, I strongly separate myself from such a 

reading.
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for both PIC and attempted murder where those two inchoate crimes have 

the same criminal objective). The pertinent question in Wade was whether 

the defendant’s multiple PIC convictions were part of one criminal episode. 

Section 906 had no bearing on the outcome or analysis in that decision. 

Accordingly, reliance on Wade is misplaced.

The majority also acknowledges that there are no reported decisions 

supporting its conclusion that § 906 precludes multiple sentences for 

criminal solicitations designed to culminate in the commission of perjury at 

Appellant’s earlier DUI trial. Yet, it implicitly concludes that trial counsel 

could be ineffective in not raising this novel statutory interpretation absent 

some reasonable basis. The majority does state that it cannot determine 

actual prejudice based on the record. However, the issue is a matter of 

statutory interpretation, which is a pure question of law, subject to de novo

review. See Commonwealth v. Chester, __ A.3d __ (Pa. 2014) (filed 

September 24, 2014). Either § 906 prohibits multiple sentences for criminal 

solicitation that were intended to culminate in the commission of perjury and 

hindering prosecution at one trial, or it does not. If § 906 does not operate 

in the manner articulated by the majority, then, as a matter of law, 

Appellant cannot establish prejudice (or arguable merit) and it would be 

unnecessary to remand to the PCRA court for an evidentiary hearing. 

Regardless, I find it perplexing to determine that trial counsel is 

ineffective for failing to anticipate this Court’s potential novel interpretation 

of § 906. While this interpretation would not be a new rule of law since it is 
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based on statutory interpretation, see Fiore v. White, 757 A.2d 842 (Pa. 

2000), I believe the majority misreads the statute and mistakenly extends 

the law to Appellant’s commission of distinct criminal acts of solicitation. 

Section 906 currently provides, “[a] person may not be convicted of 

more than one of the inchoate crimes of criminal attempt, criminal 

solicitation or criminal conspiracy for conduct designed to commit or to 

culminate in the commission of the same crime.” 18 Pa.C.S. § 906. The 

import of this language has consistently been recognized: A defendant 

cannot be sentenced for criminal attempt to commit murder, criminal 

solicitation to commit murder, and criminal conspiracy to commit murder, 

where a single murder was the objective of the attempt, conspiracy, and 

solicitation. The same principle applies to other underlying crimes. 

The statute does not preclude a sentence on multiple solicitation 

counts where the defendant, on separate dates, solicited a person to commit 

the same crime. This is because there are multiple solicitation crimes being 

committed, i.e., distinct criminal acts and episodes. The majority essentially

re-writes the statute to say, “a person may not be convicted of more than 

one criminal attempt, criminal solicitation or criminal conspiracy for conduct 

designed to commit or to culminate in the commission of the same crime.” 

Instantly, the fact that the person being solicited would only be able to 

perjure herself at one trial or hinder prosecution at that trial does not alter 

the plain fact that Appellant committed separate criminal acts of solicitation. 

This situation would be different had Appellant, in a single letter, solicited 
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Ms. Mroz to commit perjury and offered three separate mechanisms to do 

so. 

Thus, the majority’s example of soliciting a burglarly is inapt. In that 

situation, multiple sentences could be issued if the solicitations occurred on 

three separate dates. See Commonwealth v. Grekis, 601 A.2d 1284, 

1294 (Pa.Super. 1992). Of course, if the person only solicited the person 

one time, but offered separate manners of completing the burglary, only one 

solicitation occurred. Thus, the majority’s logic is faulty. This Court’s dicta

in Grekis supports my standard reading of the statute. In Grekis, the 

defendant, on three separate occasions occurring weeks apart, solicited a 

minor to engage in involuntary deviate sexual intercourse (“IDSI”). The 

defendant was not sentenced on each count, however, he contended that he 

could not be convicted of each separate count. This Court set forth that 

even if the court imposed separate sentences on the charges it would not 

have been improper because he committed three distinct acts of solicitation.

The majority distinguishes Grekis on the ground that the defendant 

therein could have performed three IDSI crimes, rather than one IDSI crime. 

See Majority Memorandum, at 10. Here, it is true that, based on Appellant’s 

solicitations, Ms. Mroz could only perjure herself at Appellant’s original DUI 

trial and not on multiple occasions outside of that trial. This distinction is 

legally insignificant since in both situations the defendant committed 

separate solicitation crimes. Under the majority’s logic, a person who 

solicits a person on two occasions, a year apart, to murder his or her spouse 
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could only be sentenced on one count of solicitation because the spouse 

could only be murdered one time. In my view, the plain language of Section 

906 does not support such a strained reading. 

Section 906 has consistently been applied to preclude multiple 

sentences for criminal attempt to commit crime X, criminal conspiracy to 

commit crime X, and criminal solicitation to commit crime X, not to prohibit 

sentencing on multiple acts of criminal solicitation. Section 906, at its core, 

is a merger type statute. Merger statutes focus on prohibiting multiple 

sentences for single criminal acts or episodes resulting in the commission of 

one crime. Insofar as the majority decision implies that Appellant’s 

solicitations were one criminal episode, such an issue would have to be 

presented to the jury. See Wade, supra (discussing Commonwealth v. 

Andrews, 768 A.2d 309 (Pa. 2001)). Appellant does not level an 

ineffectiveness claim premised on counsel’s failure to seek a jury instruction 

on this issue. 

I am aware that § 906 issues have been held to implicate the legality 

of sentence, see Commonwealth v. Jacobs, 39 A.3d 977 (Pa. 2012), and 

would not necessarily require the issue to be forwarded under the 

ineffectiveness rubric and can be raised sua sponte. Nonetheless, no 

Pennsylvania court that I am aware of has sua sponte ruled that sentences 

for separate solicitations to commit the same crime are illegal under § 906.

As the majority’s reading of the statute is unsupported by any case 

law, could result in incongruous results, and is inconsistent with the ordinary 
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reading of the statute, I cannot agree that trial counsel could potentially be 

found ineffective for failing to advance the novel interpretation of § 906 

posited by the majority.2 Nor would I find that Appellant’s sentence is 

illegal. Therefore, I respectfully dissent and would affirm. 

____________________________________________

2

 I recognize that counsel may be found ineffective for failing to level a 

challenge even where no case law exists on the subject where a plain 

reading of a statute would support the argument. See Commonwealth v. 

Jones, 416 A.2d 539 (Pa.Super. 1979). This case is not such a situation 

because it is premised on a legally unsupported interpretation of 18 Pa.C.S. 

§ 906.