                                 [J-18-2014]
                   IN THE SUPREME COURT OF PENNSYLVANIA
                              WESTERN DISTRICT

  CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, MCCAFFERY, STEVENS, JJ.

COMMONWEALTH OF PENNSYLVANIA,                :   No. 13 WAP 2013
                                             :
                   Appellee                  :   Appeal from the Order of the Superior
                                             :   Court entered July 16, 2012 at No. 599
                                             :   WDA 2009, vacating the judgment of
                                             :
             v.                                  sentence of the Court of Common Pleas
                                             :
                                             :   of Allegheny County, entered
                                             :   September 23, 2008 at No. CP-02-
JOVON KNOX,                                  :   0011687-2007, and remanding for
                                             :   resentencing.
                   Appellant                 :
                                                 ARGUED: April 8, 2014




                                        OPINION


MR. JUSTICE SAYLOR                               DECIDED: DECEMBER 15, 2015

      This appeal concerns a criminal defendant’s accountability for the illegal

possession of a firearm by another, under accomplice-liability theory.

      The facts underlying this appeal are cumbersome. In general, they reflect a

recurring scenario in which a defendant (presently, Appellant) is charged with a

possessory weapons offense deriving from the role of a firearm in a broader criminal

undertaking, although, factually, another person (here, Appellant’s brother) actually

possessed the weapon during the episode and the defendant himself was unarmed.

See generally State v. Williams, 718 A.2d 721, 722 (N.J. Super. 1998) (commenting on

the frequency of the above fact pattern, which “surely must be a common problem,
given the prevalence of multi-defendant cases, such as this, in which crimes are

committed as to which accomplice liability is properly charged but wherein only one

defendant may be carrying a weapon”).

       The weapon offense presently at issue -- “[f]irearms not to be carried without a

license” – pertains, inter alia, when an individual carries a concealed firearm on his

person without a license. See 18 Pa.C.S. §6106(a)(1) (setting forth and elaborating

upon this general rule, as well as delineating a series of exceptions). Obviously, such

permutation, on facial terms, does not apply to unarmed co-perpetrators in a larger

criminal undertaking who simply are not “carr[ying] a firearm concealed on or about

[their] person.” Id. Nevertheless, the purport of the Superior Court’s present opinion is

that the possessory weapons offense extends to persons who may be accomplices in

the abstract.   See Commonwealth v. Knox, 50 A.3d 749, 759 (Pa. Super. 2012)

(determining, based on Appellant’s presence at the scene of a robbery in which his

brother pulled a gun on the victim, conduct in fleeing the scene with his brother, and

conduct in lying to police about his involvement, that Appellant “acted as [his brother’s]

accomplice” and, as such, both “are criminally responsible for each other’s actions”). In

substance, the Superior Court’s approach embodies the now-defunct common-law

principle that each accomplice bears equal criminal responsibility for all acts of his

associates or confederates committed in furtherance of a common design.              See

Commonwealth v. Lassiter, 554 Pa. 586, 595 n.4, 722 A.2d 657, 661-62 n.4 (1998)

(alluding to this common-law, common-design principle in a context in which it was not

controlling and, thus, with no assessment of its continuing longevity).




                                      [J-18-2014] - 2
        Per the express terms of the Crimes Code,1 however, accomplice liability has

been made offense-specific.      Accordingly, the general rule is that a person is an

accomplice of another in the commission of “an offense” if, acting with the intent to

promote or facilitate the commission of “the offense,” he solicits the other person to

commit it or aids, agrees, or attempts to aid the other person in planning or committing

it.   18 Pa.C.S. § 306(c).   The broader approaches – including the common-design

theory and the related precept that an accomplice was liable for all of natural and

probable consequences of the principal’s actions in the commission of a target offense -

- were supplanted by the General Assembly with the adoption of the Crimes Code and

its incorporation of core restraints on criminal liability taken from the Model Penal Code.

See generally Commonwealth v. Roebuck, 612 Pa. 642, 651-56, 32 A.3d 613, 618-22

(2011) (discussing the interrelationship between the culpability provisions of the Crimes

Code and the Model Penal Code in terms of the treatment of accomplice liability).

        In particular, the salient terms of Section 306 of the Crimes Code (“Liability for

conduct of another; complicity”) are derived from Section 2.06 of the Model Penal Code,

which expressly rejected the expansive common-design and natural-and-probable-

consequences doctrines, refocusing liability for complicity squarely upon intent and

conduct, not merely results. See AMERICAN LAW INSTITUTE, MODEL PENAL CODE              AND

COMMENTARIES § 2.06 cmt. 6(b), at 312 (1985) (“[T]he liability of an accomplice ought

not to be extended beyond the purposes that he shares.             Probabilities have an

important evidential bearing on these issues; to make them independently sufficient is to



1
    Act of December 6, 1972, P.L. 1482 (as amended 18 Pa.C.S. §§110-1110).



                                      [J-18-2014] - 3
predicate the liability on negligence when, for good reason, more is normally required

before liability is found.”).2   After the passage of the Crimes Code, status as an

accomplice relative to some crimes within a larger criminal undertaking or episode no

longer per se renders a defendant liable as an accomplice for all other crimes

committed. See Commonwealth v. Flanagan, 578 Pa. 587, 607-08 & n.11, 854 A.2d

489, 501 & n.11 (2004). Rather, closer, offense-specific analysis of intent and conduct

is required.3

       Accordingly, the Superior Court should have analyzed whether the evidence and

reasonable inferences, taken in the light most favorable to the Commonwealth as the

verdict winner, supported a conclusion that Appellant, acting with the intent to promote

or facilitate his brother’s unlicensed carrying of a concealed firearm, solicited his brother

to commit such offense or aided, agreed, or attempted to aid his brother in doing so.

See 18 Pa.C.S. §§306(c), 6106(a)(1). In the absence of such a focused examination,

the intermediate court’s broader assertion that, as accomplices, Appellant and his




2
  See generally Wilson-Bey v. United States, 903 A.2d 818, 836-37 (D.C. 2006)
(alluding to the Model Penal Code’s rejection of the natural-and-probable-consequences
approach); Michael G. Heyman, The Natural and Probable Consequences Doctrine: A
Case Study in Failed Law Reform, 15 BERKELEY J. CRIM. L. 388, 395 (2010) (discussing
the Model Penal Code’s rejection of the common-design doctrine); Wesley M. Oliver,
Limiting Criminal Law’s “In for a Penny, In for a Pound” Doctrine, 103 GEO. L.J. ONLINE
8, 9 (2013) (explaining that the imposition of broad-based criminal liability on
accomplices for actions of others and results well beyond their contemplation “has been
roundly criticized by academic and judicial commentators for at least a century”).

3
 There are statutory exceptions to this principle, most notably, the felony-murder rule.
See 18 Pa.C.S. §2502(b).



                                      [J-18-2014] - 4
brother each were criminally liable for the other’s actions in the abstract is

unsustainable.4

       Ordinarily, we would undertake sufficiency review on the appropriate terms or

remand to the Superior Court in order for this to be accomplished. Presently, however,

the trial court’s charge to the jury encompassed multiple, independent bases to support

a conviction on the possessory weapons offense. In addition to accomplice liability, the

court discussed such crime in terms of conspiratorial liability,5 as well as principal

liability for the possessory weapons offense via theories of constructive and joint


4
  The Superior Court also cited this Court’s decision in Commonwealth v. Smith, 490
Pa. 329, 416 A.2d 494 (1980), for the proposition that “a defendant can be legally
responsible for the illegal possession of a firearm under a theory of accomplice liability.”
Knox, 50 A.3d at 758 (citing Smith, 490 Pa. at 333-34, 416 A.2d at 496-97). We take no
issue with this assertion. Relative to Smith, we note only that the disposition was in
response to a specific contention by the defendant that the evidence was insufficient to
establish that he had any involvement whatsoever in a shooting perpetrated by a
codefendant. See Smith, 490 Pa. at 333, 416 A.2d at 496. In rejecting this argument,
the Court focused the two paragraphs containing its rationale upon the defendant’s
“words and actions at the time of the shooting,” which evidenced affirmative
encouragement. See id. at 334, 416 A.2d at 497. For whatever reason, and
presumably on account of the focus established by the litigants, the treatment in Smith
was brief, relatively shallow, and lacking in focus upon the operative terms of Section
306 of the Crimes Code as they may relate to a possessory weapons offense. Thus,
we do not believe the decision should be read to obviate a directed assessment of the
controlling statutory scheme. Indeed, glossing over the statutory language would
demonstrate little respect for its author, the General Assembly, which is the
policymaking branch of government. Cf. Robert Batey, Judicial Exploitation of Mens
Rea Confusion, At Common Law and Under the Model Penal Code, 18 GA. ST. U. L.
REV. 341, 400-14 (2001) (offering up staunch criticism of courts which have purportedly
supplanted legislative efforts to implement directed approaches to criminal culpability
taken from the Model Penal Code).

5
 Conspiracy and accomplice liability are distinct concepts. See Roebuck, 612 Pa. at
642, 32 A.3d at 622-23.



                                      [J-18-2014] - 5
possession. See N.T., June 9, 2008, at 464-65. Since, however, there is no reviewable

challenge to these additional liability predicates pending in this Court, each stands as an

adequate and independent basis supporting Appellant’s conviction.           See generally

Griffin v. United States, 502 U.S. 46, 56-60, 112 S. Ct. 466, 472-75 (1991) (refusing to

set aside a verdict on sufficiency grounds merely because the evidence may have been

insufficient to sustain one of several alternative, independent grounds for the conviction

presented to a jury).     With regard to these grounds, we note only that there are

conceptual difficulties in addressing each,6 particularly with regard to possessory

weapons offenses,7 and, accordingly, it is essential for advocates to sharpen their

presentations to the judiciary in this area of the law.

       The order of the Superior Court is affirmed, albeit that the supportive reasoning

regarding the possessory weapons offense is disapproved.




6
  As to accomplice liability, commentators frequently recount that this “is one of the most
difficult topics to deal with properly.”          Heyman, The Natural and Probable
Consequences Doctrine, 15 BERKELEY J. CRIM. L. at 389. The concepts of joint and
constructive possession resonate more readily in the setting of crimes grounded on
possession in the abstract, see, e.g., 35 P.S. §780-113 (possession with intent to
deliver), as contrasted with an offense permutation premised upon the specific conduct
of “carr[ying] a firearm concealed about his person,” 18 Pa.C.S. §6106(a)(1), which at
least facially suggests a form of actual physical possession. In terms of conspiratorial
liability, like accomplice liability, this has been impacted by the General Assembly’s
adoption of concepts taken from the Model Penal Code. See 18 Pa.C.S. §903 & Official
Comment (“This section is derived from Section 5.03 of the Model Penal Code.”).

7
  See, e.g., Williams, 718 A.2d at 724 (describing a “conceptual morass into which
courts may be led,” relative to the imposition of criminal liability for possession of a
weapon which a defendant did not physically possess).



                                       [J-18-2014] - 6
      Former Justice McCaffery did not participate in the decision of this case.

      Mr. Chief Justice Castille, Mr. Justice Baer, Madame Justice Todd and Mr.

Justice Stevens join the opinion.

      Mr. Justice Eakin files a concurring opinion.




                                    [J-18-2014] - 7
