[J-14-2014] [MO: Todd] IN THE SUPREME COURT OF PENNSYLVANIA

EASTERN DISTRICT

**COMMONWEALTH OF PENNSYLVANIA,**

**Appellant**

**v.**

**JAMES R. MOORE,**

**Appellee :**  **: :**  **: :**  **: :**  **: :**  **: :**  **: :**  **: No. 27 EAP 2013**  **Appeal from the Judgment of the Superior Court entered on July 12, 2012, at No.**  **2032 EDA 2010, reversing and remanding the Judgment of Sentence entered on**  **March 16, 2012, in the Court of Common Pleas of Philadelphia County, Criminal**  **Division, at Nos. CP-51-CR-0009849- 2008, MC-51-CR-0019450-2008, MC-51-** **CR-0019451-2008 and MC-51-CR 0019452-2008** 

**ARGUED : March 12, 2014** 

CONCURRING OPINION

MR. JUSTICE BAER DECIDED: October 30, 2014

**I agree with the Majority’s conclusion that Appellee’s a cquittal of homicide does**  **not warrant a reversal of his conviction for possessing an instrument of crime (“PIC”).**  **Respectfully, however, I disagree with the majority’s h olding that this case is**  **indistinguishable from Commonwealth v. Gonzalez, 527 A.2d 106 (Pa. 1987), and that it**  **is therefore necessary to overrule Gonzalez to decide cor rectly this case.**  **Initially, I agree with the majority that Federal a nd Pennsylvania jurisprudence**  **have long recognized and supported the notion that acq uittals are not tantamount to**  **factual findings and therefore do not render inconsisten t verdicts improper so long as**  **there is sufficient evidence presented by the Commonwe alth at trial to support the guilty** **[J-14-2014] [MO: J. Todd] - 2**

**verdict. Commonwealth v. Carter, 282 A.2d 375, 376 ( Pa. 1971) (internal quotation**  **marks omitted) (“[a]n acquittal cannot be interpreted a s a specific finding in relation to**  **some of the evidence”); see also Commonwealth v. Miller , 35 A.3d 1206, 1208 (Pa.**  **2012) (citing Dunn v. United States, 284 U.S. 390, 3 93 (1932) and United States v.**  **Powell, 469 U.S. 57, 58 (1984)) (“inconsistent verdicts, [ ] under longstanding federal**  **and state law, are allowed to stand so long as the evid ence is sufficient to support the**  **conviction”). Thus, I agree with the Majority that the Superior Court improperly extended**  **Commonwealth v. Magliocco, 883 A.2d 479 (Pa. 2005), 1**  **beyond its statutory context and consequently erred in reversing Appellee’s convictio**  **n for PIC. Because inconsistent verdicts are permissible, this case is be**  **st framed as a sufficiency of the evidence challenge. Pertinent to th**  **e issue before us, the United States Supreme Court has held that review of a suffici**  **ency challenge to a conviction should not involve consideration of acquittal on a diff**  **erent charge as a fact disfavoring a finding of evidentiary sufficiency. Indeed, the major**  **ity agrees with this premise: see Maj. Slip Op. at 3; see also Powell, supra, at 67 (“**  **[review of inconsistent verdicts] should be independent of the jury’s determination tha**  **t evidence on another count is sufficient”); accord Carter, supra, at 376 (internal quo**  **tation marks omitted) (“[a]n acquittal cannot be interpreted as a specific finding in**  **relation to some of the evidence”). Accordingly, the rule that controls the propriety of i**  **nconsistent verdicts is as follows: “[I]nconsistent verdicts . . . are allowed to sta**  **nd so long as the evidence is sufficient to support the conviction” notwithstanding th**  **e defendant’s acquittal on an**

**1 In Magliocco, supra, at 493, we held that the defen**  **dant could not be convicted of terroristic threats but acquitted of ethnic intimidatio**  **n because the “commission” of terroristic threats was a “specific statutory element of [**  **ethnic intimidation]”** i.e. **, terroristic threats is a “compound offense.” Magliocco is distinguishab**  **le from the case at bar, which does not involve a compound offense. See 18 Pa.C.**  **S. § 907(a) (PIC statute). [J-14-2014] [MO: J. Todd] - 3** 

**accompanying charge. Miller, supra, at 1208. In determi ning whether there is sufficient**  **evidence to support a conviction, “the appellate court must view all the evidence and all**  **reasonable inferences drawn therefrom in the light most favorable to the**  **Commonwealth, as verdict winner.” Commonwealth v. West on, 749 A.2d 458, 461 (Pa.**  **2000) (internal quotation marks omitted) (holding tha t a conviction of voluntary**  **manslaughter did not abrogate the requisite intent fo r PIC or criminal conspiracy when**  **there was sufficient evidence, notwithstanding the verdi cts for the associated crimes,**  **that the defendant armed himself prior to going to t he victim’s house, showing an intent**  **to threaten or harm the victim). Therefore, the suffi ciency of the evidence review in the**  **instant case examines whether the evidence presented at trial, notwithstanding**  **Appellee’s acquittal for homicide, was sufficient to sustai n his conviction for PIC, and**  **does not view as a relevant consideration Appellee’s acqu ittal on the homicide charge.**  **The statute governing PIC provides, in pertinent part , “A person commits a**  **misdemeanor of the first degree if he possesses any instr ument of crime with intent to**  **employ it criminally.” 18 Pa.C.S. § 907(a). Notably, PIC, by its definition, is an inchoate**  **crime, meaning that a defendant only has to intend to employ the instrument of crime**  **criminally; a defendant need not actually employ it o r complete an associated crime.**  **See Commonwealth v. Andrews, 768 A.2d 309, 317 (Pa. 2001) (“possessing an** 

**instrument of crime is an inchoate offense derived from the Model Penal Code”).**  **Relevant to our sufficiency analysis of Appellee’s PIC co nviction are two cases in**  **particular, Commonwealth v. Gonzalez, 527 A.2d 106 ( Pa. 1987) and Commonwealth v.**  **Naranjo, 53 A.3d 66 (Pa. Super. 2012), both of which involved convictions for PIC and**  **an acquittal for murder. In Gonzalez, two gang membe rs entered a store owned by the** 

**defendant and threatened to steal a radio from anoth er customer. Id. at 107. The**  **defendant-store owner forced the gang members out of h is business, telling them,** **[J-14-2014] [MO: J. Todd] - 4**

**“Don’t come back around here messing with my customers. I’m going to kill somebody.”**  **Id. One of the gang members, the victim, replied that he would “be back for [the**  **defendant],” and shortly thereafter, he returned to the defendant’s store with 15-20**  **fellow gang members. Id. The defendant, armed with a sawed-off shotgun he kept**  **under the counter in the store, fired at the victim, ki lling him. Police charged the**  **defendant with murder and PIC, and the jury subsequen tly acquitted him of murder and**  **voluntary manslaughter, but found him guilty of PIC. Id. at 107. On appeal, the Superior** 

**Court affirmed his conviction. Commonwealth v. Gonzale z, 503 A.2d 455 (Pa. Super.**  **1985). On further appeal, we reversed, holding that “since [t**  **he defendant] did not commit a crime with the shotgun, and no other evidence**  **sufficient to support a finding of criminal intent was presented at trial,” the Commonwea**  **lth did not prove the intent element of PIC. Gonzalez, supra, at 108. The basis of**  **our reversal was, therefore, the lack of sufficient evidence to sustain the PIC conviction, n**  **ot the failure of the jury to convict defendant of the second charged crime of homicide** 

**. In a more recent Superior Court case, Naranjo, supra, a**  **t 68, the defendant and the victim engaged in an argument over the telephone**  **concerning the defendant’s girlfriend, whom the victim had previously dated. Dur**  **ing the course of the argument, the defendant threatened to kill the victim, and the victi**  **m subsequently told the defendant to meet him at a specified location in the City of Phila**  **delphia so that they could “settle the**

**matter.” Id. The defendant arrived at the location armed with three weapons: an altered**  **metal ruler, a pair of scissors, and a multipurpose tool containing a pocketknife. Id. The**  **two men fought, and the defendant fatally stabbed th e victim with what a medical expert**  **opined was the pocketknife. Id. The defendant admitted to stabbing the victim, but**  **claimed he did so in self-defense. Id. Police charged h im with homicide and PIC, and** **[J-14-2014] [MO: J. Todd] - 5**

**the jury subsequently acquitted him of the homicide char ges but convicted him of PIC.** 

**Id. On appeal, the Superior Court analyzed the defendan**  **t’s issue using a sufficiency of the evidence framework, considering the precise issue we**  **face here: Whether the evidence is sufficient to support a defendant’s conviction**  **for PIC when a jury acquits**

**him of homicide. Id. at 69. The court relied on the Gonzalez rationale while persuasively**  **noting the factual dissimilarities between the two cases. Id. at 69-70. Unlike Gonzalez,**  **where the victim threatened the defendant and brough t 15-20 gang members to the** 

**defendant’s store before he was shot with the defendant ’s shotgun located in the store,**  **the defendant in Naranjo argued with the victim and threatened him; he then agreed to**  **enter into mutual combat with the victim, and arrived at an agreed-upon location while**  **armed with instruments of crime to do just that. Id. at 70.**  **Accordingly, the Naranjo court explained that the evid ence introduced at trial,**  **standing alone, showed that the defendant “could have possessed the items in order to**  **fight the decedent, without intending to cause his dea th, acting with the malice**  **necessary to establish murder, or being criminally reckle ss for purposes of the**  **involuntary manslaughter crime.” Id. at 71. Regardless of what crime the defendant**  **intended to commit while possessing the three weapons, th e court ultimately held that**  **“the Commonwealth [ ] presented additional evidence a side from the homicide charges**  **which demonstrated an intent to employ the weapons crim inally,**  i.e. **, [the defendant’s] agreement to enter into a mutual fight.” Id. at 72.**  **Examining the facts of the case now before us reveals t hat it is more in line with**  **Naranjo than Gonzalez. Unlike Gonzalez, Appellee was not approached on his own**  **property by a group of gang members. Rather, just as t he defendant in Naranjo argued**  **with his victim and then went to an agreed-upon locate d to “settle the matter,” a review** **[J-14-2014] [MO: J. Todd] - 6**

**of the trial record in the light most favorable to th e Commonwealth reveals that Appellee**  **“tussled” with another man at a “speakeasy,” left the a ltercation to retrieve a Tec-9**  **handgun from his vehicle, returned to the establishment and indiscriminately opened**  **fire, hitting three individuals, one of whom suffered 12 gunshot wounds and one of**  **whom died from his injuries. Notes of Testimony (N.T.), January 12, 2010 at 143-48,**  **205, 221-26; N.T., January 13, 2010 at 15-18, 41-44 . At any moment prior to the**  **shootings, Appellee, like the Naranjo defendant, had t he opportunity to abort the**  **confrontation on his own by never retrieving the weap on from his car or not returning to**  **the speakeasy, thus preventing the altercation from esca lating. Instead, he chose to**  **return to the speakeasy with the weapon and open fire**

**. The moment Appellee chose to possess the gun as he retriev**  **ed it from the trunk of his car is the pertinent temporal point of inquiry**  **to ascertain Appellee’s intent for purposes of PIC. The events occurring thereafter are o**  **nly important because they supported the Commonwealth’s theory that when Appelle**  **e secured the weapon from**

**his automobile it was with the intent to use it crimi nally. Moreover, up to that point**  **Appellee had merely been involved in a “tussle.” Accord ingly, the Commonwealth’s**  **evidence was sufficient to demonstrate that Appellee did not retrieve his gun with the**  **belief that he was facing imminent harm; 2**  **rather, (again viewing this case in a light most favorable to the Commonwealth) he intended to retur**  **n to the speakeasy to shoot individuals within the facility. Thus, there is ample**  **evidence independent of the homicide charge to support the guilty verdict for PIC.** 

**2 A claim of self-defense requires evidence establishing**  **,** inter alia **, that the defendant “reasonably believed that he was in immine**  **nt danger of death or serious bodily injury and that it was necessary to use deadly fo**  **rce against the victim to prevent such harm. . .” Commonwealth v. Mouzon, 53 A.3d 738**  **, 740 (Pa. 2012) (quoting Commonwealth v. Samuel, 590 A.2d 1245, 1247-48 (Pa.**  **1991)). [J-14-2014] [MO: J. Todd] - 7** 

**Moreover, this case is distinguishable from Gonzalez, whe re the defendant kept**  **a gun in his shop and only retrieved it from under a counter when confronted by 15-20**  **hostile gang members. Here, viewing the evidence in t he light most favorable to the**  **Commonwealth, Appellee possessed the gun without necessity and with the intent to**  **use it unlawfully. Analogous to Naranjo, where the de fendant possessed weapons with**  **the intent to fight, Appellee took possession of the gun with the intent to commit a crime.**  **Accordingly, I have no trouble finding that the Commo nwealth presented sufficient**  **evidence to support the PIC conviction, notwithstanding Appellee’s acquittal of the**  **homicide charge. Thus, although the Majority reaches the correct result,**  **there was no need for it to overrule Gonzalez, which is factually distinguishable a**  **nd not controlling herein. To support overturning Gonazalez, the Majority opines th**  **at the Gonzalez Court undermined the permissibility of inconsistent verdicts be**  **cause it “inferred from the defendant’s acquittals a specific factual finding with re**  **gard to the evidence: that the jury believed the defendant’s self-defense claim.” Maj. Slip**  **. Op. at 13-14. There is no indication, however, that the Gonzalez Court imprope**  **rly viewed the acquittal as a fact for purposes of its sufficiency of the evidence analysis.**  **To ascertain whether the defendant possessed the requisite intent for his PIC conv**  **iction, the Court looked to evidence presented at trial, including but not limited**  **to the defendant’s statement that he was “going to kill somebody” in the context of the alte**  **rcation, the fact that the shotgun was not shown or employed during the initial exchange**  **with the two gang members, and the location of the defendant’s shop, which was in h**  **igh-crime area of Philadelphia. The Court made one parenthetical reference to the j**  **ury’s verdict, stating simply that “[The defendant’s] statement is consistent with an expressi**  **on of his preparedness to kill** in self[-]defense **(which is what the jury determined he did in this case) .” Gonzalez,** **[J-14-2014] [MO: J. Todd] - 8**

**supra, at 108 (emphasis in original). This parenthetical reference only states that the**  **jury’s verdict reflected the facts borne out at trial - - that defendant did not intend to**  **commit a crime when he possessed the shotgun -- not that the verdict itself was a fact**  **employed in the Court’s analysis of the sufficiency of ev idence on the PIC charge. Id.**  **Accordingly, Gonzalez in no way undermines this Court’s lo ng-standing line of**  **precedent permitting inconsistent verdicts. In fact, it is wholly in accord with precedent**  **to that effect because the Court viewed the facts presen ted at trial to determine whether** 

**the evidence was sufficient to show that the defendant h ad the requisite criminal intent**  **to support his PIC conviction without regard to a guilt y verdict for the associated crime** 

**and found that it was insufficient. This Court should not frustrate the fundamental princi**  **ples of** stare decisis **by overturning a case that does not contravene the doctrin**  **al underpinnings of our existing precedent and is not factually similar in regard to seve**  **ral crucial aspects to the case at bar. Therefore, I concur in the result the Majority h**  **as reached, but not in its reasoning. Former Justice McCaffery did not participate in the deci**  **sion of this case.**