J-A31032-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

v.

DAVID ALLEN PEARL

 Appellant No. 3226 EDA 2013

Appeal from the Judgment of Sentence November 6, 2013

in the Court of Common Pleas of Philadelphia County Criminal Division

at No(s): CP-51-CR-0012111-2011

BEFORE: BENDER, P.J.E., MOULTON , J., and FITZGERALD, J.*

JUDGMENT ORDER BY FITZGERALD, J.: FILED DECEMBER 08, 2016

Appellant, David Allen Pearl, appeals from the judgment of sentence 

imposed in the Philadelphia County Court of Common Pleas following a 

bench trial at which the trial court found him guilty of ethnic intimidation,1

but acquitted him of harassment.2 Appellant claims that the conviction for 

ethnic intimidation must be vacated based on Commonwealth v. 

Magliocco, 883 A.2d 479 (Pa. 2005). The Commonwealth agrees relief is 

due. We vacate the judgment of sentence and discharge Appellant. 

The factual and procedural history of this case is known to the parties, 

and we need only reiterate that the trial court found Appellant guilty of 

ethnic intimidation, but acquitted him of harassment. See N.T., Trial, 

 

*

Former Justice specially assigned to the Superior Court.

1 18 Pa.C.S. § 2710(a). 

2 18 Pa.C.S. § 2706(a)(1). 
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11/6/13,3at 18-19. The court immediately sentenced Appellant to one year 

of probation. Appellant timely filed a notice of appeal on November 12, 

2013. Appellant timely filed a court-ordered Pa.R.A.P. 1925(b) statement 

asserting that “[t]he evidence was insufficient to convict [him] of ethnic 

intimidation.”4 Amended Statement of Error Complained of on Appeal, 

5/28/14, at ¶ 4. 

The sole issue raised on appeal is whether Appellant’s conviction for 

ethnic intimidation must be vacated because he was acquitted of 

harassment. See Appellant’s Brief at 9. Following our review, we agree 

with the parties that Magliocco compels this Court to vacate Appellant’s 

conviction for ethnic intimidation.5 See Magliocco, 883 A.2d at 492-93 

 

3 Although the cover sheet of the trial transcript indicates a date of 

November 26, 2013, the docket confirms that the verdict was entered on 

November 6, 2013, and we use the latter date for the purpose of citation. 

4 Appellant’s phrasing of the error complained of on appeal is arguably too 

vague to preserve Appellant’s issue. Appellant did not cite Magliocco or 

refer to the acquittal on the charge of harassment. Moreover, the trial court 

did not discern the specific challenge raised in this appeal. However, we 

decline to find waiver. Cf. Commonwealth v. Laboy, 936 A.2d 1058, 1059 

(Pa. 2007) (concluding that this Court “should have afforded the requested 

sufficiency review” in a “relatively straightforward . . . case”). But see

Pa.R.A.P. 1925(b)(4)(vii); Commonwealth v. Williams, 959 A.2d 1252 

(Pa. 2008). 

5 Our standard of review is well settled. “The standard we apply in reviewing 

the sufficiency of evidence is whether, viewing all the evidence admitted at 

trial in the light most favorable to the verdict winner, sufficient evidence 

exists to enable the fact finder to find every element of the crime beyond a 

reasonable doubt.” Commonwealth v. Brown, 886 A.2d 256, 258 (Pa. 

Super. 2005) (citations omitted). The crime of ethnic intimidation is defined 
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(holding that (1) ethnic intimidation requires proof of the commission of a 

predicate offense and (2) conviction for ethnic intimidation cannot stand 

where the finder of fact “specifically found that [the defendant] did not 

commit” a predicate offense). Accordingly, we vacate Appellant’s conviction 

for ethnic intimidation and discharge Appellant.

Judgment of sentence vacated. Appellant discharged.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/8/2016

 

as follows: “A person commits the offense of ethnic intimidation if, with 

malicious intention toward the race, color, religion or national origin of 

another individual or group of individuals, he commits an offense under 

any other provision of this article . . . .” 18 Pa.C.S. § 2710(a) (emphasis 

added). Harassment is an offense under the same article as ethnic 

intimidation. See 18 Pa.C.S. § 2709.