[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

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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 OPINION

JUSTICE MUNDY DECIDED: February 22, 2023

I join the majority opinion, as I am in full agreement with the majority’s plain-text 

analysis of the definition of aggravated assault, as set forth in Section 2702(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 

majority, 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 different 

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 “attempts to 

cause serious bodily injury to another, or causes 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-43-2022] [MO: Todd, C.J.] - 2

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

Just as we normally resolve legal issues within the context of the specific features of the 

case at hand as reflected by the record, see 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., 

Shanne v. Addis, 121 A.3d 942, 943-44 (Pa. 2015).

This matter is anomalous in two material ways. First, the answer to the certified 

question is divorced from the facts of the relevant offense. Regardless of how Appellant 

actually committed aggravated assault, we are asked to determine whether there are 

other scenarios, not involving 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 statelaw question is not sufficient for the Third Circuit to proceed. It is undisputed that whether 

a state-court conviction falls under ACCA’s elements clause, see 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 scope of the offense, while the prosecutor proposes the 

narrowest interpretation. The categorical approach may also be criticized 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 using 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, as we lack authority to contradict the Supreme Court’s mandate that 

the categorical approach be utilized in this type of sentencing matter.
[J-43-2022] [MO: Todd, C.J.] - 3

threatened use of physical 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 opinion 

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 being framed 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 Court views that term as it is used 

in ACCA. As aptly developed by the majority, the 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, urges 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 mechanical agent, administering a narcotic or 

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

even 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 physical 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 crimes,” 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 physical 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). The plain text encompasses any means 

of causation so long as the defendant’s conduct is the direct and substantial cause of the 

injury. See Commonwealth v. Uhrinek, 544 A.2d 947, 951 (Pa. 1988) (discussing

causation in the criminal context).

The United States essentially 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 
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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.” Id. 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 

sense, which, notably, is a term of art.

Johnson clarified that the phrase “use of force” in ACCA’s elements 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. United States, 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 into stepping 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. This 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 held 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. See Borden v. United 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 
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who supplied the fifth vote reasoned that, regardless of the “against another” phraseology, 

“use of” alone refers to intentional conduct. See id. at 1835 (Thomas, J., concurring in 

the judgment).

Here, the certified question asks whether (a)(1) aggravated assault requires the

use of physical force which, as noted, suggests intentional conduct. Borden left the 

question of extreme recklessness for another day. See id. at 1825 n.4. Hence, 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 

requires the “use of force against another” as contemplated by ACCA’s elements 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 aggravated assault under (a)(1). 

4 This problem is mitigated to some extent because Section 2702(a)(1) is a “divisible” 

statute. It thus allows for use of the “modified” categorical approach. See 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, 

intentional, or extremely reckless conduct – in the disjunctive, see 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 in some instances from documents in the state court record 

that 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 

Commonwealth 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 id., which may in turn signify ACCA’s elements clause is not satisfied. 

Cf. United 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-43-2022] [MO: Todd, C.J.] - 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 causation 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 Certification of 

Question of Law), is the actual issue that court needs to resolve.

Justice Dougherty joins this concurring opinion.