[ J - 43 - 2022 ] [MO: Todd , C.J. ] IN THE SUPREME COURT OF PENNSYLVANIA EASTERN DISTRICT

UNITED STATES OF AMERICA, Appellee

v.
MARC J. HARRIS, Appellant : : : : : : : : : : : No. 5 EAP 2022 Petition for Certification of Question of Law from the United States Court of Appeals for the Third Circuit at No. 17

- 1861 ARGUED: September 13, 2022

CONCURRING O PINION

JUSTICE MUNDY DECIDED: February 22, 2023 I join the majority opinion , as I am in full agree ment with the majority’s plain

- text analysis of the definition of aggravated assault, as set forth in Section 270 2(a)(1) of the Crimes Code, 1 and with its ultimate conclusion that “the exercise of direct or indirect physical force . . . is not the exclusive means” by which serious bodily injury can be inflicted. Majority Op. at 23. I am also aligned with the concept , highlighted by the majori ty, that in certified

- question matters this Court ordinarily limits its review to the question asked, see id . at 15, which is inevitably an issue of Pennsylvania law. See Pa.R.A.P. 3341(b)(3). I write separately, however, to suggest that a modestly diffe rent answer to the certified question might be appropriate in this particular matter . My reasoning follows.

1 Under that provision, a person is guilty of aggravated assault if he or she “ attempt s to cause serious bodily injury to another, or caus es such injury intentionally, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life .” 18 Pa.C.S. § 2702(a)(1).[ J

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- 2 Initially , we do not , strictly speaking, limit our review to the certified question alone

. Just as we normally resolve legal issues within the con text of the specific features of the case at hand as reflected by the record , s ee generally Maloney v. Valley Med. Facilities, Inc. , 984 A.2d 478, 485

- 86 (Pa. 2009) (referencing the axiom that judicial decisions are to be read against the facts of the case), in certified

- question matters we rely for such context on the facts of the case as developed in the federal district court. See, e.g. , Sh an n e v. Addis , 121 A.3d 942, 943

- 44 (Pa. 2015). This matter is anomalous in two material ways

. First, t he answer to the certified question is divorced from the facts of the relevant offense

. Regardless of how Appellant actually committed aggravated assau lt , w e are asked to determine whether there are other scenarios , not involv ing the use of physical force , which would also fall within the scope of the offense as defined

. 2 This type of exercise we do not usually undertake

. We

“ do not render decisions in the abstract or offer purely advisory opinions [.]” Pittsburgh Palisades Park, LLC v. Commonwealth , 888 A.2d 655, 659 (Pa. 2005)

. Second, it is evident from the federal proceedings that simply answering the state

law question is not sufficient for the Third Circuit to proceed. It is undisputed that whether a state

- court conviction falls under ACCA’s element s clause, se e 18 U.S.C. § 924(e)(2)(B)(i) (relating to felonies having, as an element, “ the use, attempted use, or

2 In this regard, the Pennsylvania Attorney General observes that, due to use of the categorical approach, this type of dispute involves a reversal of the norm: the defendant argues for the broadest possible scop e of the offense, while the prosecutor proposes the narrowest interpretation. The categorical approach may also be criticize d for basing judicial decision

- making on speculation , concerning the theoretical reach of a criminal statute , which is willfully blind to the way the offense is committed in the vast majority of cases , and to whether there is any suggestion in the state court record that the defendant actually committed it u sing outlier means

. For example, if it is clear a defendant used a firearm to commit the predicate offense, why should he escape enhanced sentencing because someone else might use starvation ? Such criticism, however, is beyond the scope of this appeal , a s we lack authority to contradict the Supreme Court’s mandate that the categorical approach be utilized in this type of sentencing matter.[ J

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- 3 threatened use of physic al force against the person of another”), 3 is a question of federal law, not state law

. See Johnson v. United States , 559 U.S. 133, 138 (2010) ; see also Petition for Certification of Question of Law, at 5 (acknowledging that, to decide the appeal before it , the Third Circuit must determine whether aggravated assault qualifies as a violent felony under ACCA )

. Hence, we have agreed to provide an advisory o pinion where the underlying context is not the facts of the case but a federal issue

. In these unusual circumstances , I believe we should consider that issue when answering the certified question. The United States argues the Third Circuit’s question bein g f r amed in terms of physical force cannot be taken in a strict legal sense because, as noted, the question of whether (a)(1) aggravated assault requires physical force for ACCA purposes is a federal issue that depends on how the United States Supreme Cour t views that term as it is used in ACCA. As aptly developed by the majority, t he United States asserts the state law question embedded in the certified question is what conduct can violate the statute , independent of whether we believe that conduct entails the use of physical force . Once the federal court has an answer to that question, it can determine whether the use of ACCA

- level force is necessary. See Brief at 9

- 10. The United States , notably, u rges this Court to affirm that the conduct in Commonwealth v. Thomas , 867 A.2d 594 (Pa. Super. 2005) , namely, starving a child to death, constituted aggravated assault; it will then forward arguments to the Third Circuit as to why those actions still meet the definition of physical force under ACCA. The Pennsylvania Attorney General ( Commonwealth ) is aligned with the United States . As described by the majority, the Commonwealth posits force can be direct or indirect, and gives as examples: using a mechani cal agent, administering a narcotic or

3 ACCA is the federal Armed Career Criminal Act. See 18 U.S.C. § 924

.[ J

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- 4 poisonous substance , exposing another to inclement weather , abandoning a young child , and setting a mechanical trap. See Brief at 2, 6

- 7. According to the Commonwealth,

e ven abandoning an infant involves “force” used to place the infant in a location where nobody will come to its aid. See Brief at 7

- 8 & nn.4

- 5. The Commonwealth thus characterizes the statement in Thomas that “ the use of force or the threat of force is not an element of the crime ,” as a one

- sentence, ill

- considered aside, and as dicta

. The Commonwealth suggests this Court say that much and go no further. As explained, it is a question of federal law for the Third Circuit whether (a)(1) aggravated assault requires ACCA

- level physi cal force. The Supreme Court has stated such physical force is “force exerted by and through concrete bodies,” distinguishing it from intellectual force or emotional force

. Johnson , 559 U.S. at 138. The term “suggests a category of violent, active crime s,” id . at 140 (quoting Leocal v. Ashcroft , 543 U.S. 1, 11 (2004)), where the force is “ capable of causing physical pain or injury to another person .” Mere offensive touching is insufficient as there must be a “substantial degree of force,” “strong physic al force,” and “force strong enough to constitute ‘power.’” Id . at 140, 142. I agree with the majority that, as far as aggravated assault is concerned, besides the required scienter level the only other element refers to “causing” or “attempting to cause” serious bodily injury . 18 Pa.C.S. § 2702(a)(1). T he plain t ex t encompasses any m eans of causation so long as the defendant’s conduct is the direct and substantial cause of the injury. See Com monwealth v. Uhrinek , 544 A.2d 947, 951 (Pa. 1988) ( discussing causation in the criminal context)

. The United States essent ially asserts it is impossible to cause serious bodily injury without employing some physical force, even if that force is indirect in nature. That position has some potential support. In United States v. Castleman , 572 U.S. 157 (2014), which arose under a different federal statute, the Court stated as a general matter it is[ J

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- 5 impossible to cause bodily injury without applying force in the common

- law sense . The Court referred expressly to battery committed by administering poison, infecting with a disease, or use of an “ intangible substance such as a laser beam. ” I d . at 170 (internal quotation marks and citation omitted) . The Court indicated, for example, the act of sprinkling poison in a person’s drink would be a use of force

– again, in the common

- law

s ense, which, notably, is a term of art

. Johnson clarified that the phrase “use of force” in ACCA’s element s clause is narrower than the common

- law meaning because it requires violent force inasmuch as the phrase appears in ACCA’s definition of violent felonies. See Johnson , 559 U.S. at 139

- 40; see also Bond v. U nited S tates , 572 U.S. 844, 861

- 62 (2014) (same) . This calls into question whether starvation and poisoning involve ACCA

- level force. As well, serious bodily injury may be caused by mere trickery

– e.g. , deceiving a person in to step ping on a rotted

- out floorboard, knowing she will fall through and sustain injuries. That could potentially come within the definition of aggravated assault if the defendant’s deception of the victim were to be deemed the direct and substantial cause of her injuries. It is also problematic that extreme recklessness can be the mens rea for (a)(1) aggravated assault . T his may impact upon whether the crime always requires the “use ” of force “against ” another

. Castleman noted the word “use” conveys that the force the defendant used was employed knowingly to cause physical harm. See Castleman , 572 U.S. at 171 (emphasis added). It explained that “ Leocal hel d that the ‘use’ of force must entail ‘ a higher degree of intent than negligent or merely accidental conduct .’ ” Id . (quoting Leocal , 543 U.S. at 9). And the Supreme Court has held the elements clause does not include reckless conduct

. S ee Borden v. Unit ed States , 141 S. Ct. 1817 (2021)

. Four Justices explained that ACCA’s reference to the “use of force” “against another” implies directed action specifically targeting another person. Id . at 1825 (plurality). The Justice[ J

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- 6 who supplied the fifth vote reasoned that, regardless of the “against another” phraseology, “use of” al one refers to intentional conduct. See id . at 1835 (Thomas, J., concurring in the judgment). Here, t h e certified question asks whether (a)(1) aggravated assault requires the

use o f physical force which , as noted, suggests intentional conduct

. Borden left the question of extreme recklessness for another day

. S ee id . at 1825 n.4 . H ence, it is an unsettled question of federal law whether that type of conduct comprises the use of force against the person of another under ACCA ’s elements clause

. 4 Given that poisoning and starving ( and deceiving ) are not usually thought of as employing violent force, I would find it tenuous to conclude that (a)(1) aggravated assault require s the “use of force against another” as contemplated by A CCA’s element s clause. With that said, I also agree with the United States that that question is beyond the scope of what this Court can reasonably decide in the present context

. What this Court can do is explain whether such examples would count as aggr avated assault under (a)(1).

4 This problem is mitigated to some extent because Section 2702 (a)(1) i s a “divisible” statute . It thus allows for use of the “modified ” categorical approach

. S ee A.L. v. Pa. State Police , 274 A.3d 1228, 1234

- 35 (Pa. 2022) (describing the modified categorical approach used by federal courts for ACCA sentencing where the state statute is divisible )

. This is because Section 2702(a)(1) lists the three types of culpability

– based on knowing, intention al, or extremely reckless conduct

– in the disjunctive , s ee Mathis v. United States , 579 U.S. 500, 513 (2016) (citing Descamps v. United States , 570 U.S. 254, 263

- 64 (2013)) , and it may be clear i n some instances from documents in the state court record th at the defendant was convicted under (a)(1) based on intentional or knowing conduct

. See generally Johnson , 559 U.S. at 144 ( listing permissible source documents associated with the predicate conviction )

. Separately, it may also be evident from such documents the defendant was convicted based on an attempt rather than a completed crime. Then , the scienter element will not encompass extreme recklessness because attempts are always intentional. See Commonwe alth v. Matthew , 909 A.2d 1254, 1257 (Pa. 2006)

. At the same time, a conviction based on an attempt only requires proof of a substantial step toward the crime’s completion, see i d ., which may in turn signify ACCA’s elements clause is not satisfied. C f. U nited States v. Taylor , 142 S. Ct. 2015, 2020

- 21 (2022) ( holding a substantial step toward completing a robbery does not satisfy ACCA’s elements clause)

.[ J

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- 7 Consistent with the Majority, so long as scienter and causation are proved, in my view they would qualify

. Accordingly , if left to my own devices, I would answer the question posed as follows: As long as the scienter and ca usation elements are proved beyond a reasonable doubt, the defendant’s conduct qualifies as aggravated assault under 18 Pa.C.S. § 2702(a)(1). This includes conduct where the defendant causes or attempts to cause serious bodily injury through starvation or poisoning. It would then be up to the Third Circuit, applying federal law, to ascertain whether aggravated assault always requires the use of ACCA

- level physical force against the person of another

– which, as noted (and as reflected in the Petition for C ertification of Question of Law) , is the actual issue that court needs to resolve.

Justice Dougherty joins this concurring opinion.