Supreme Decisions: Two Conviction Reversals, Pinkerton Liability at Risk in PA, Rule 600, and more

Supreme Court

  1. In the Interest of J.B., __ A.3d __ (Pa., July 18, 2018)

This is one of two cases in which the Supreme Court overturned a criminal conviction—well, here, really a juvenile adjudication of first-degree murder.

This particular case made some headlines years back.  A large portion of the Court’s opinion is dedicated to the facts, but suffice it to say this case was about an 11-year old boy who was accused of killing his eight-month pregnant step-mother by shooting her in the back of the head with .20 gauge shotgun.  The case was tried in juvenile court because J.B.’s case had been decertified, and it went up on appeal twice, previously, with the Supreme Court addressing an issue of constitutional important.  That, of course, is beyond the scope of this post.

Needless to say, J.B., now in his 20s in college, won a unanimous reversal of his juvenile adjudication by five of the seven Pennsylvania Supreme Court justices.  (Justices Donohue and Wect did not participate in consideration of this appeal since they were part of the panel of the Superior Court that had years ago granted J.B. a new trial on weight-of-the-evidence grounds.)  The reasoning for reversal of J.B.’s adjudication was this: the circumstantial evidence was in “equipoise” of the question of whether he was the killer or not.  Stated differently, “the trial evidence equally supported two reasonable but diametrically opposed ultimate inferences: one that [J.B.] committed the murder, and the second that he did not commit the murder.”  (The facts at trial had borne out that his step-mother’s ex had the opportunity to be the possible killer as he lived nearby and he had recently made threats of killing J.B.’s step-mother, having found out that one of her children was really not his.) 

In my mind, the case is important for this reason: the case served as a thorough reminder of the importance of the reasonable-doubt standard, how lofty a burden it is, and it painstakingly examined the history and utility of an appellate court’s standard of review for the sufficiency of the evidence.  These are few of the key take aways:

  • Early on, the Supreme Court had reversed criminal convictions due to the evidence relied upon was “insufficient.”  See, e.g., Krause v. Commonwealth, 93 Pa. 418 (1880) (“In favor of the liberty of the citizen, the court may, and in a proper case, should declare the evidence insufficient to convict.”
  • Around 1937, the Supreme Court acknowledged the importance of the beyond-a-reasonable-standard to its function of reviewing the sufficiency of the evidence. See, e.g, Commonwealth v. Karmendi, 195 A. 62 (Pa. 1937) (“was there sufficient evidence, direct or circumstantial, from which the jury might find beyond a reasonable doubt a homicide of the first degree, committed by the accused?”)
  • Forward to 1963, the Court was careful to emphasize “that, in undertaking sufficiency review, [it] would not act in the capacity of a ‘super-jury’ to reconsider and re-determine the facts of the case adduced at trial and decide, anew, an appellant’s guilt or innocence.”  Advocates were presenting sufficiency claims as if they were retrying their cases before the appellate courts by marshaling facts and evidence of record that only favored their side.  The Court noted this was improper and “basic error.” Thus the Court noted: “We accept as true all of the Commonwealth’s evidence upon which, if believe, the jury could have properly based its verdict.”  Similarly, it had been accepted as true that the Commonwealth, as verdict winner, was entitled to the benefit of all reasonable inferences which could be drawn from the evidence at trial.  (Side note: Interestingly, this require was a creature of a statute that was later repealed; however, in a footnote, the Supreme Court remarked that it had retained this feature of the standard of review as part of its exclusive authority to set standards of procedures for all courts across the Commonwealth.)  

Now, to the meaning of evidence being in “equipoise” on a question of criminal liability, this concept reared its head in 1946 in the case of Commonwealth v. Woon Knee New, 47 A.2d 450 (Pa. 1946).  This concept was explained as such:

When two equally reasonable and mutually inconsistent inference can be drawn from the same set of circumstances, a [finder of fact] must not be permitted to guess which inference it will adopt, especially when one of the two guesses may result in depriving a defendant of his life or his liberty.  When a party on whom rests the burden of proof in either a criminal or a civil case, offers evidence consistent with two opposing propositions, he proves neither.

And here, in J.B.’s case, that is what the Supreme Court deemed happened here.  Accordingly, J.B.’s adjudication was reversed.

Personal note: This case was interesting to me personally because I’m currently embroiled in an appeal that is grappling with the question of what it means to review for the sufficiency of the evidence and what it means to reweigh the evidence.  The case is heading to the Superior Court for en banc review.  The panel of the Superior Court had previously ruled in my client’s favor finding that the trial court could not draw any reasonable inferences from the facts to find, beyond a reasonable doubt, a critical element of the crime.  However, the dissent in that case accused the panel of substituting its judgment for the trial court and reweighing the evidence.  Essentially, the case boils down to whether it is a proper question for an appellate court to ask, as part of its sufficiency analysis, if the trial court’s inferences were reasonable.  Of course, I do believe that is a proper question for an appellate court to ask, and I believe this case reaffirms that.  In a footnote, the J.B. court reiterated this from a U.S. Supreme Court case: “As a general proposition, an inference in a criminal prosecution used to establish a defendant’s guilt cannot be considered reasonable, and thus comport with the Due Process Clause of the United States Constitution, unless the inference is ‘more likely than not to flow from’ the basic facts proven by the prosecution on which the inference is founded.”  

 

  1. Comm. v. Chambers, __ A.3d __ (Pa., July 18, 2018)

This is the second of the two cases where the Supreme Court reversed criminal convictions.  This particular case involved a melee principally between two guys—Chambers and the victim—which was joined into by two different groups of women loyal to one side or the other. 

What’s important to know about the underlying facts is that Chambers was convicted of aggravated assault and possession of a deadly weapon as a result of his conspiracy conviction.  Though he neither personally possessed a deadly weapon (in this case pepper spray) or committed acts that would squarely fall within the aggravated-assault statute, his convictions for these crimes stemmed from the conspiracy conviction and what is known as “Pinkerton liability.”  Essentially, Pinkerton liability is this: a co-conspirator is responsible for the foreseeable criminal acts of his cohort though he didn’t commit the acts directly.  This is a well-established common-law principle, which was announced by the U.S. Supreme Court.

What makes this case interesting is what was said about Pinkerton liability.  Although the Majority of the Court—Wecht, Baer, Todd, and Donohue—left “for another day the more difficult question of whether criminal convictions can rest upon the theory of conspiratorial liability, when such theory is not proved for expressly in our Crimes Code”—Chief Justice Saylor addressed the issue squarely in his concurring opinion.  He said this:

I join the majority’s treatment of the sufficiency-of-the-evidence question. Rather than focusing exclusively on that case-specific matter, however, I would also reach the issue of widespread public importance presented here. Specifically, Appellant questions the legitimacy of maintaining the common-law doctrine that one conspirator is liable for substantive crimes committed by another conspirator, regardless of intent or even knowledge relative to those offenses, so long as the crimes may be said to have been committed in furtherance of the conspiracy. This matter has been ably briefed and, in my view, is more than ripe for resolution by this Court.

Appellant explains that, while criminal conspiracy is itself a crime, see 18 Pa.C.S. § 903, the Pennsylvania General Assembly has refrained from adopting the common-law doctrine reflected in Pinkerton v. United States, 328 U.S. 640, 66 S.Ct. 1180, 90 L.Ed. 1489 (1946), rendering each member of a conspiracy liable for criminal acts of the others, regardless of any specific mens rea relative to the particular crimes. See id. at 646-47, 66 S.Ct. at 1183-84. Appellant contends that such a strict-liability approach is squarely inconsistent with the Crimes Code.

According to Appellant, the Legislature has clearly and unambiguously delineated the circumstances in which an individual is liable for the criminal conduct of another in Section 306 of the Crimes Code. See 18 Pa.C.S. § 306(b) (“A person is legally accountable for the conduct of another person when ….”). Indeed, Appellant explains that this statute is an essential embodiment of Section 2.06 of the Model Penal Code, which rejects the Pinkerton approach, as follows:

(a) Conspiracy. The most important point at which the Model Code formulation diverges from the language of many courts is that it does not make “conspiracy” as such a basis of complicity in substantive offenses committed in furtherance of its aims. It asks, instead, more specific questions about the behavior charged to constitute complicity, such as whether the defendant solicited commission of the particular offense or whether he aided, or agreed to or attempted to aid, in its commission.

The reason for this treatment is that there appears to be no better way to confine within reasonable limits the scope of liability to which conspiracy may theoretically give rise.

American Law Institute, Model Penal Code and Commentaries § 2.06(4), cmt. 6(a), at 307 (1985). Furthermore, Appellant highlights, the Legislature explicitly abolished common-law crimes in Section 107(b) of the Crimes Code, 18 Pa.C.S. § 107(b).

Appellant also relates that, in Commonwealth v. Knox, 629 Pa. 467, 105 A.3d 1194 (2014), this Court rejected a broad common-law approach to the issue of accomplice liability, in favor of adherence to the plain language of Section 306 of the Crimes Code. See id. at 470-71, 105 A.3d at 1196-97. Consistent with Knox, Appellant urges this Court to now hold that the common-law co-conspirator rule no longer exists in Pennsylvania.

I agree with Appellant in all material respects, and thus, I would prospectively disapprove the common-law application of the Pinkerton doctrine in Pennsylvania, subject, of course, to legislative adjustment within constitutional parameters. I appreciate the Commonwealth’s position that the Pinkerton doctrine has become an entrenched one. Nevertheless, I see no wisdom in perpetuating a scheme of judge-made law serving as the sole basis for substantive criminal liability that is so facially in tension with the comprehensive Crimes Code promulgated by the policy-making branch.

The majority didn’t reach this important question because it resolved the conspiracy conviction as part of its usual sufficiency analysis.  However, it did cite in a footnote excerpts from prior cases that said favorable things about abolishing Pinkerton liability.

Personal note: Given the current make-up of this Supreme Court and the sentiments expressed in Chief Justice Saylor’s concurrence, every criminal-defense practitioner, from here on out, should be challenging criminal convictions that result solely as the result of Pinkerton liability. I think the failure to do so is borderline ineffective.

  1. Comm. v. Barbour, __ A.3d __ (Pa., July 18, 2018)

This case came out of Washington County.  It dealt with the application of Rule 600—a Rule of Criminal Procedure that controls speed-trial violations.  (The rule requires criminal defendants to be brought to trial within 365 days of the filing of the criminal complaint.)

Here, specifically, the Supreme Court was addressing the application of its prior precedent interpreting Rule 600 to the facts of this case.  Previously, in Commonwealth v. Steltz, 560 A.2d 1390 (Pa. 1989), the Supreme Court held that a criminal defendant’s failure to appear at a trial scheduled within the time period provided by [Rule 600] constitutes a waiver of that defendant’s right to seek a remedy of dismissal under that rule.

In this case, the defendant, Barbour, voluntarily absented himself from an untimely trial—one that violated Rule 600 before the defendant failed to appear.  The question was whether the Steltz waiver rule applied under these circumstances.  The Court held that it did not.  The summary of its holding was this:

In sum, we conclude that the Steltz waiver rule is narrow in scope, and applies only where a defendant fails to appear for a trial that complied with the requirements of Rule 600. Where, as here, a Rule 600 violation is independent from an unrelated to a defendant’s subsequent failure to appear, that violation is not cured by the defendant’s absence.  Two wrongs do not make a right, and a defendant’s failure to satisfy his obligation to appear in court does not excuse the Commonwealth’s failure to satisfy its obligations under Rule 600.

  1. Comm. v. Small, __ A.3d __ (Pa., July 18, 2018)

This was a discretionary appeal that resulted from post-conviction appeal.  Below, the defendant convicted of first-degree murder contended he came across “after-discovered evidence.”  In order to receive a new trial based on after-discovered evidence, a four-part test must be satisfied: the new evidence (1) could not have been obtained before the conclusion of the trial by the exercise of reasonable diligence; (2) it must not be merely corroborative or cumulative; (3) it must not be used solely to impeach credibility of a witness; and (4) it would likely result in a different verdict if a new trial were granted.

Here the entirety of this appeal centered on the question of the meaning of “merely corroborative or cumulative evidence.” In sum, the Court said that “after-discovered evidence” is not “merely” corroborative or cumulative so long as it is of a higher and different grade or character.”

Personal note: What this means?  Your guess is as good as mine.  This new elaboration on the definition of “merely corroborative or cumulative evidence” will be a fact-specific inquiry that will open the flood gates of litigation on this issue.