[J-61-2015] [M.O. - Wecht, J.] IN THE SUPREME COURT OF PENNSYLVANIA

MIDDLE DISTRICT

**COMMONWEALTH OF PENNSYLVANIA, Appellant** 

**v.**

**SCOTT BRADLEY KINGSTON, Appellee**  **: :**  **: :**  **: :**  **: :**  **: :**  **: :**  **: No. 45 MAP 2015**  **Appeal from the Order of the Superior Court at No. 2016 MDA 2012 dated**  **October 29, 2014, reconsideration denied January 8, 2015, which**  **Affirmed/Vacated/Remanded the order from the Bradford County Court of**  **Common Pleas, Criminal Division, at No. CP-08-CR-0000735-2009 dated**  **October 22, 2012. SUBMITTED: August 31, 2015** 

DISSENTING OPINION

CHIEF JUSTICE SAYLOR DECIDED: August 15, 2016

**The majority holds that Section 906’s prohibition aga inst convictions “of more**  **than one of the inchoate crimes of criminal attempt, cri minal solicitation or criminal**  **conspiracy for conduct designed to commit or to culminate in the commission of the**  **same crime” operates only** horizontally **,** i.e. **, to foreclose convictions for combinations of different inchoate crimes, but not**  vertically **to preclude convictions for multiple instances of any one of the named inchoate offenses. 18 Pa.C.S**  **. §906. From my point of view, the statute is materially ambiguous in such regard, and**  **accordingly, the rule of lenity should be applied to enforce horizontal**  and **vertical preclusion. In its reasoning rejecting vertical preclusion, the majo**  **rity first states that acceptance of such proscription “would require us to privil**  **ege the unspoken ‘counts’ over the express enumeration of distinct inchoate offen**  **ses.” Majority Opinion,** slip op.**[J-61-2015] [M.O. - Wecht, J.] - 2**

**at 10. In point of fact, however, no such privileging is required, since extension of a rule**  **of preclusion across the two categories which are facially e ncompassed within the**  **statute simply is not an either-or proposition. Along these lines, I also do not see what**  **is added through the observation that the Crimes Code may otherwise frequently speak** 

**in terms of “counts” or “violations.”** See id. **at 10-11. Straightforwardly, a crime is simply a violation of the law,**  see **B LACK**  **' S**  **L AW**  **D ICTIONARY**  **(17th ed. 1999);** accord **18 Pa.C.S. § 106, so that the use of the terms “violatio**  **n,” versus “count,” versus “crime” would seem to me to be immaterial. Accordingly, the a**  **nswer to the majority’s defining question – “[m]ore than one what?” – seems apparent.**  **Majority Opinion,** slip op. **at 12.**

**Section 906 bars convictions of more than one crime or cri mes in the delineated** 

**circumstances. The majority also finds the Legislature’s use of the t**  **erm “crimes” in Section 906, as opposed to “crime” to be clarifying.**  See **Majority Opinion,** slip op. **at 11-12. From my point of view, again, little grammatical difference**  **arises out of the use of the plural form, and certainly not one so great as to remove the mani**  **fest ambiguity from the statute. In terms of the policy, it seems to me that the Legislat**  **ure may have contemplated both horizontal and vertical preclusion to mitigate som**  **e of the conceptual difficulties surrounding inchoate offenses by curtailing their proli**  **feration in association with a single object crime.**  **1 Notably, and in all events, the Sentencing Code has**  **been structured to allow a range of serious penalties and to afford sente**  **ncing courts discretion to consider various factors, which would include whether there may h**  **ave been multiple acts or**

**1 As an example of the difficulty arising out of the li**  **tigation of multiple inchoate crimes, in the present case the Commonwealth was required to fo**  **rego one of the conspiracy convictions given that the relevant offense had mistaken**  **ly been characterized as solicitation on the jury verdict slips deriving from the**  **nineteen charged, interwoven, and substantially overlapping inchoate crimes.**  See **N.T., May 17, 2010, at 3. [J-61-2015] [M.O. - Wecht, J.] - 3** 

**instances of solicitation, for example. In Appellee’s case, the status of solicitation of**  **perjury as a third-degree felony (carrying a maximum p rison sentence of seven years,** 

see **18 Pa.C.S. §1103(3)), and solicitation of hindering prosecution as a misdemeanor**  **of the second degree (implicating a maximum sentence of two years,**  see id. **§1104(2)), would have left Appellant exposed to an aggregate ma**  **ximum sentence of at least eighteen years’ imprisonment arising out of his variou**  **s efforts to thwart his prosecution for DUI,**  **2 even assuming that vertical preclusion would apply.**  See generally

Commonwealth v. Hoke **, 599 Pa. 587, 594, 962 A.2d 664, 668 (2009) (expla ining that** 

**inchoate crimes have the same maximum sentences as the und erlying crime, per**  **Section 905(a) of the Crimes Code, 18 Pa.C.S. §905(a) ).**  **3 I recognize that the majority’s construction of Section 9**  **06 is consistent with the approach of some other courts,**  see, e.g. **,** State v. Badillo **, 317 P.3d 315, 320 (Or. Ct. App. 2013), and, in fact, may reflect the more likely u**  **nderlying objective of the drafters of the Model Penal Code who originally formulated t**  **he proscription.** See **A MERICAN**  **L AW** 

**2 In this regard, Appellee was also convicted of conspira**  **cy to solicit another person (Steven Boller) to solicit Mroz to hinder the prosecuti**  **on and commit perjury. Parenthetically, while these sorts of double inchoate of**  **fenses may implicate conceptual legal questions in their own right,**  see, e.g. **, Ira P. Robbins,** Double Inchoate Crimes **, 26 H**  **ARV**

**. J.**  **ON L**  **EGIS . 1 (1989), Appellee has not challenged these conspiracy**  **convictions on such terms.** 

**3 In this respect, I note that the Commonwealth already**  **has had the benefit of the Legislature’s allowance for multiple, factually-overlap**  **ping crimes (solicitation of hindering prosecution and solicitation of perjury), ar**  **ising out of the same conduct. I would also not rule out that some of Appellee’s acts m**  **ay have been directed toward separate crimes,**  i.e. **, variously, to incite his father, his mother, and Ms. M roz to commit**  **perjury.** See generally Commonwealth v. Jacobs **, 614 Pa. 664, 674, 39 A.3d 977, 983 (2012) (plurality) (discussing the “narrow view of the**  **object crime” taken by the Court in past decisions). In this respect, I note only that the p**  **resent appeal has not been framed in a way that requires sifting through fact-bound matt**  **ers of this sort. [J-61-2015] [M.O. - Wecht, J.] - 4** 

**I NSTITUTE**  **, P**  **ROPOSED O**  **FFICIAL D**  **RAFT OF THE M**  **ODEL P**  **ENAL C**  **ODE §5.05(3) (1962).**  **Nevertheless, left to my own devices, in the face of the se sorts of material ambiguities**  **in statutes implicating substantial criminal liabilities, I favor more consistent application**  **of the rule of lenity, thus leaving it to the Legisla ture to make its intentions plain and**  **explicit to the degree that it favors more punitive a pproaches.**  Accord, e.g. **,** Commonwealth v. Booth **, 564 Pa. 228, 234, 766 A.2d 843, 846 (2001) (expla ining that,**  **“where ambiguity exists in the language of a penal sta tute, such language should be**  **interpreted in the light most favorable to the accused” (citing**  Commonwealth v. Wooten

**, 519 Pa. 45, 53, 545 A.2d 876, 879 (1988))).**  **4 In this vein, I regard some of the courts’**  **efforts to draw firm conclusions from ambiguous language to be problematic in their own**  **right. For the above reasons, I would affirm the order of t**  **he Superior Court.**

**4 I acknowledge that there is a trend toward diluting t**  **he rule of lenity.** See, e.g.

**,** Muscarello v. United States **, 524 U.S. 125, 138-39, 118 S. Ct. 1911, 1919 (1998 )**  **(indicating that the rule applies only when a criminal statute contains a “grievous**  **ambiguity or uncertainty,” and “only if, after seizin g everything from which aid can be**  **derived,” the Court “can make ‘no more than a guess a s to what Congress intended’”**  **(citations omitted)). For my own part, given the subst antial liberty interests involved, I**  **remain a closer adherent to the more traditional form ulations.**  See, e.g.

**,** United States v. Wiltberger

**, 18 U.S. 76, 105 (1820) (“[P]robability is not a gu ide which a court, in**  **construing a penal statute, can safely take.”).**