Corporate outlawry and “suspicion and conjecture.”

Comm. v. Pi Delta Psi, Inc., 2019 PA Super 167 (May 23, 2019).

Out of Monroe County.  This was a rare criminal action against a corporate entity.  This fraternity had been criminally charged, along with its student members, related to the death of a freshman pledge who died as part of a hazing ritual.  This appeal involved 10 separate issues, all of which were unsuccessful for the fraternity, but I discuss these two which generated some interesting analysis from the Superior Court panel.

“Guilty”-before-“Not Guilty” verdict slip.  The fraternity argued that using a verdict slip that offered the choice “Guilty” before “Not Guilty” violated the fraternity’s fundamental right to be presumed innocent.  The fraternity analogized this sort of verdict slip to sociological studies linking election outcomes to ballot position—i.e. those at the top of the ballot are likely to be chosen before those down ballot.

Analyzing this issue, the Superior Court dismissed this claim on this reasoning.  The Majority opined, “We are unpersuaded that the verdict slip deprived the corporation of its right to be presumed innocent.  Uninformed electors, who mindlessly vote for the first name on a ballot, correlate poorly to well-informed jurors, who collectively deliberate before reaching a verdict. . . . Finally, there is no Rule of Criminal Procedure regarding the format of a verdict slip.  Any such mandate, if appropriate, must come from the Supreme Court of Pennsylvania.” 

10-year bar from doing business in Pennsylvania. The Superior Court raised this issue on its own initiative. With Pennsylvania law being silent on authorized sentences for a corporate defendant, the Commonwealth urged for a 10-year probationary period with conditions that the fraternity be barred from doing business within the Commonwealth.  The trial court took the legislature’s silence on this issue to be an open invitation to impose the sentence it pleased.  The Superior Court said that was wrong.  It wrote: 

“[T]he trial court’s attempt to justify the corporation’s exile by the General Assembly’s silence is erroneous for several reasons.  First, it violates this Court’s precedents.  ‘If no statutory authorization exists for a particular sentence, that sentence is illegal and subject to correction.’  Second, the trial court’s assumption of authority based upon legislative silence disregards the General Assembly’s mandate that its penal code ‘shall be strictly construed.’ . . . The statute authorizing conditions of probation contains no term expressly empowering a trial court to discontinue a business entity’s commerce within this Commonwealth.” . . . Third, the probationary condition flies in the face of the common law of corporations.  It has long been the common law that corporations ‘may not commit treason, nor be outlawed, nor excommunicated, for they have no souls.’”

Comm. v. Holston, 2019 PA Super 176 (May 31, 2019)

Out of Bucks County.  This case was before an en banc panel of the Superior Court, which affirmed the dismissal of the Commonwealth’s case due to its failure to make out a prima facie case—a rarity in the world of criminal defense.  

The opinion of the court was splintered: five voting in the majority, two concurrences, and two dissents.  The opinion is a lengthy one and it’s worth a read, but I highlight the case for this observation.  I’m convinced that the chances of success for dismissal of charges pre-trial depends upon the luck of the draw of the judge who is presiding.  This is so because of the limits of our language and the imprecision with which we use legal terms such as “reasonable inference,” “suspicion and conjecture,” and “tenuous inference.”  What amounts to a “reasonable inference” to one person and “suspicion and conjecture” to another is a matter that reasonable minds can differ on.  

In this case, fortunately for Mr. Holston, five judges of the Superior Court voted that the Commonwealth’s evidence amounted to “suspicion and conjecture” that he knowingly committed perjury and the other offenses he was charged with. Here, the majority didn’t think much of the fact that there were a myriad of documents that Mr. Holston failed to produce under a Grand Jury subpoena that were also intermixed with documents he did produce pursuant to the subpoena.  Without getting into the weeds of the case, this is a snippet of the Majority’s reasoning:

[T]here is no support for the Commonwealth’s assertion that ‘it is reasonable to infer [Holston] selected a small portion of documents to produce while holding the majority of them, notably the most relevant documents, back.’  The Commonwealth would have use conclude that, because documents that were not turned over by [Holston] pursuant to the subpoena were discovered during the subsequent execution of a search warrant, [Holston] knowingly lied about the existence of the documents.  However, it is our determination that the Commonwealth failed to set forth sufficient evidence beyond mere suspicion that [Holston] had any knowledge of the existence of the documents that were discovered during the execution of the search warrant.

Seeing opinions like this are encouraging for the defense. However, for jaded defense attorneys who are so used to having their clients’ cases held over for court based on the use of magical phrases like “reasonable inferences” and “viewing the evidence in the light most favorable to the Commonwealth,” well, then, Judge McLaughlin’s and Judge Stabile’s dissents offer familiar refrains.  And, honestly, I can’t necessarily say these dissents were misplaced under the circumstances of this case. Again, this case demonstrates that the difference between the continuation of charges and dismissal of charges hinges upon how reasonable minds can differ as to what constitutes “suspicion and conjecture.”