Grading of Unlawful Contact offense, and musings on the “greater latitude” afforded to prove a “state of mind.”

Comm. v. Pope, 2019 PA Super 231 (July 29, 2019)

Out of McKean County.  This case dealt with sentencing issue under the unlawful contact with minor’s offense, which reads this way.

(a) Offense defined.–A person commits an offense if he is intentionally in contact with a minor, or a law enforcement officer acting in the performance of his duties who has assumed the identity of a minor, for the purpose of engaging in an activity prohibited under any of the following, and either the person initiating the contact or the person being contacted is within this Commonwealth:

(1) Any of the offenses enumerated in Chapter 31 (relating to sexual offenses).

(2) Open lewdness as defined in section 5901 (relating to open lewdness).

(3) Prostitution as defined in section 5902 (relating to prostitution and related offenses).

(4) Obscene and other sexual materials and performances as defined in section 5903 (relating to obscene and other sexual materials and performances).

(5) Sexual abuse of children as defined in section 6312 (relating to sexual abuse of children).

(6) Sexual exploitation of children as defined in section 6320 (relating to sexual exploitation of children).

(b) Grading.–A violation of subsection (a) is:

(1) an offense of the same grade and degree as the most serious underlying offense in subsection (a) for which the defendant contacted the minor; or

(2) a felony of the third degree; whichever is greater.

18 Pa.C.S. § 6318. 

In this case, Pope had been accused of making his girlfriend’s daughter perform certain sexual acts in order to spend time with her boyfriend.  For these alleged acts, Pope was charged with attempted involuntary deviate sexual intercourse (IDSI), aggravated indecent assault, indecent assault, and the unlawful contact charge.  The jury acquitted Pope of everything with the exception of the unlawful contact charge, and the judge sentenced him to 62-124 months.

Pope went through the first round of the appellate process, taking a direct appeal, and after that he filed a PCRA.  Post-conviction counsel asserted that both trial and appellate counsel dropped the ball in terms of the grading of the unlawful contact offense.  Specifically, the argument was this, which drew from Commonwealth v. Reed, 9 A.3d 1138 (Pa. 2010):

[W]hile the Commonwealth [is] not required to charge the defendant with the underlying offenses of Section 6318([a]), the fact that he was charged with and then acquitted of those crimes ‘cannot be ignored when applying the appropriate grading under subsection 6318(b)’ . . . . [I]n light of the fact the defendant was acquitted of each of the Chapter 31 offenses, it could not countenance a result where ‘the sentencing court had to guess which offense [the defendant] sought to commit when he contacted’ the minor.

Thus, under those circumstances, the default felony three grading applies.  See 18 Pa.C.S. § 6318(b)(2).  The Commonwealth charged Pope with three Chapter 31 offenses, each had different gradings, but for each Pope was found Not Guilty.  Therefore, not delving into any guessing work, the applicable grade of the offense of unlawful contact with minors was a felony three, which carries only a maximum sentence of 7 years.  But here, Pope was give a 5-10 year (and some change) sentence.  That was illegal.

Personal note: Practitioners must be mindful, as the Superior Court points out in this case, that there is no prerequisite that the Commonwealth charge, or obtain a conviction, on one of the offenses set forth in subparagraphs (a)(1)-(6).  Additionally, even if the Commonwealth does charge an underlying offense, and there’s an acquittal of that offense but a conviction of the unlawful contact charge, caselaw makes clear that the unlawful contact charge can follow the grading of the acquitted offense since there’s no guesswork involved under those circumstances.  See Commonwealth v. Aikens, 168 A.3d 137 (Pa. 2017) (affirming felony 1 grading of unlawful contact where jury instruction made clear that there was only one underlying Section 6318(a) offense at play, IDSI, and it didn’t matter that jury acquitted on that charge).

Comm. v. Akhmedov, 2019 PA Super 232 (July 29, 2019) (en banc)

Out of Philadelphia.  This was an en banc decision involving a drag-racing incident that resulted in the death of a mother and her three children, who were pedestrians crossing the street.  The defendant was convicted in a bench trial of four counts of third-degree murder, then a panel of the Superior Court overturned those convictions.  On rehearing, a unanimous court upheld the defendant’s convictions.

The opinion is a lengthy one, and it presents with interesting issues related to prior-bad act evidence under Rule 404(b), but I write on this case to highlight what I thought was interesting precedent reaffirmed by this en banc panel.  Specifically, this is what caught my attention.

“[O]ur courts have consistently held that malice is present under circumstances where a defendant did not have an intent to kill, but nevertheless displayed a conscious disregard for an unjustified and extremely high risk that his actions might cause death or serious bodily harm.” Commonwealth v. Packer , 168 A.3d 161, 168 (Pa. 2017) (citation omitted).

Malice is more than ordinary recklessness. See Commonwealth v. Hoffman , 198 A.3d 1112, 1119 (Pa. Super. 2018). Malice is “a class of wanton and reckless conduct which manifests such an extreme indifference to the value of human life which transcends the negligent killing[.]” Id .

Parties are to be given greater latitude to present evidence when they are tasked with establishing a state of mind. See Commonwealth v. Honeycutt , 323 A.2d 775, 778 (Pa. Super. 1974). “Where recklessness, wantonness, or willfulness is an issue it is frequently necessary, or desirable in order to establish a strong case, to show not only an indifference to consequences at the instant an accident occurred, but also that such a state of mind persisted … prior to the accident.” Id . (citation omitted). “Unlike the speed at which a vehicle is traveling, a state of mind which demonstrates a marked disregard for the safety of others is not likely to change significantly in a matter of seconds.” Id . (citation omitted). “To restrict the compass of a trial (criminal or civil) to the pinpoint of the culminating crisis would be to make verdicts of juries mere guesses.Id . (citation omitted). “A conviction based on malice is appropriate where evidence demonstrates the element of sustained recklessness by a driver in the face of an obvious risk of harm to his victims.” Commonwealth v. Kling , 731 A.2d 145 (Pa. Super. 1999) (emphasis in original).

Reading this, the Superior Court reached back in time (45 years) and unearthed the Honeycutt case, and seemingly opens a Pandora’s box on Rule 404(b) evidence. (I admittedly haven’t read Honeycutt in depth, but I note it doesn’t once reference Rule 404.) All this begs the question: Does this “greater latitude” afforded to parties to “establish a state of mind” open a wider door, or relax the standard, when it comes to prior-bad acts evidence?  Seemingly, these quoted pronouncements from Honeycutt make that out to be the case.  Therefore, defense counsel should be on guard for prosecutors to look for “greater latitude” when they’re trying to introduce 404(b) evidence. 

Personal note: I had the opportunity to hear Justice Wecht speak at an appellate CLE earlier this year, and he mentioned that 404(b) issues are a hot issue right now.  His concurrence in Commonwealth v. Gill, 206 A.3d 459 (Pa. 2019), earlier this year, would seem to confirm that.  Considering as much, I’d be surprised if this case wasn’t accepted for allocatur.