J-S41043-14



                             2014 PA Super 273



COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                        Appellee

                   v.

MAURQUIS THOMSON

                        Appellant                    No. 2313 EDA 2013


           Appeal from the Judgment of Sentence June 21, 2013
             In the Court of Common Pleas of Delaware County
            Criminal Division at No(s): CP-23-CR-0002230-2012


BEFORE: BOWES, J., DONOHUE J., AND MUNDY, J.

CONCURRING OPINION BY BOWES, J.:                 FILED DECEMBER 10, 2014

      I join the well-reasoned opinion of the learned majority.       I write

further only to address our prior decision in Commonwealth v. Morris, 958

A.2d 569 (Pa.Super. 2008) (en banc), a decision in which I joined, and a

seeming inconsistency in the manner in which our courts have construed the

terms “convicted” and “conviction” in other statutes.

      The Morris decision involved an interpretation of 42 Pa.C.S. § 9715.

That statute authorizes life imprisonment for “any person convicted of

murder of the third degree in this Commonwealth who has previously been

convicted at any time of murder or voluntary manslaughter[.]” 42 Pa.C.S.

§ 9715(a) (emphasis added).        This Court held that the phrase “any time”
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meant that an individual found guilty of two separate third-degree murder

charges at the same trial could be sentenced to life imprisonment.       We

expressly overruled our prior decision in Commonwealth v. Smith, 710

A.2d 1179 (Pa.Super. 1998), which had interpreted the term “previously

convicted” to mean that an individual could not be sentenced to life

imprisonment if found guilty of two counts of third-degree murder at the

same trial.

      A panel of this Court recently opined, “[t]he term ‘conviction’ and its

related term ‘convicted’ have a distinct legal meaning under the law.”

Commonwealth v. Hale, 85 A.3d 570, 581 (Pa.Super. 2014), allowance of

appeal granted, __ A.3d __ (Pa. 2014) (filed July 2, 2014).       Discussing

Commonwealth v. Palarino, 77 A.2d 665 (Pa.Super. 1951), the Hale

Court set forth that “[t]he word ‘conviction’ has both a popular and a

technical meaning. As commonly understood, it means a verdict of guilty, or

perhaps a plea of guilty, and for some purposes this is the meaning

attributed to it by the courts.”    Hale, supra at 581 (quoting Palarino,

supra at 667). However, the term also “has been held to imply ‘judgment’

or ‘sentence’ upon the verdict or plea.” Id.

      Indeed, the Hale Court recognized that dating back to at least 1826,

the Pennsylvania Supreme Court had opined that, “When the law speaks of

conviction, it means a judgment, and not merely a verdict, which, in

common parlance, is called a conviction.”          Id. (quoting Smith v.

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Commonwealth, 14 Serg. & Rawle 69 (1826) (italics in original)).          In

Smith v. Commonwealth, our High Court reversed a recidivist burglary

sentence that “subjected the defendant to life imprisonment because the

indictment for his second burglary did not provide what judgment the

defendant received for his prior burglary.” Hale, supra at 581 (discussing

Smith v. Commonwealth, supra).

     The Hale panel continued that this Court has followed the technical

reading of the word “conviction” expressed in Smith v. Commonwealth in

other contexts.   In Commonwealth v. Black, 407 A.2d 403 (Pa.Super.

1979), this Court addressed a finding of guilt for both burglary and the

underlying theft offense.   The defendant was found guilty of both charges

but the court only sentenced the defendant on the burglary count.       This

Court found that the statute in question, which prohibited a “conviction” for

both burglary and “the offense which it was his intent to commit after the

burglarious entry or for an attempt to commit that offense,” 18 Pa.C.S.

§ 3502(d), only precluded multiple sentences. See id.

     We reached a similar result in Commonwealth v. Maguire, 452 A.2d

1047 (Pa.Super. 1982).      There, the defendant challenged multiple guilty

verdicts for the inchoate crimes of possession of an instrument of crime,

criminal conspiracy, and attempted burglary. The court only sentenced on

the attempted burglary count, but the defendant maintained that the guilty

verdicts for conspiracy and attempted burglary violated the then-applicable

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version of 18 Pa.C.S. § 906. The Maguire panel disagreed. Importantly, it

concluded, “appellant construes ‘convicted’ as equivalent to the jury's

‘verdict,’ which it is not.” Id. 1049. According to the Maguire Court, “the

judge convicted appellant of one inchoate crime by imposing a judgment of

sentence for attempted burglary.” Id. at 1050 (italics in original).

      The Hale panel also cited to Commonwealth v. Grekis, 601 A.2d

1284 (Pa.Super. 1992). The Grekis Court noted, “we have interpreted the

term ‘conviction’ in section 906 to mean entry of a judgment of sentence not

a finding of guilt by the jury.”     Id. at 1294. This Court reached a similar

conclusion in Commonwealth v. Hassine, 490 A.2d 438, 460 (Pa.Super.

1985), where we posited, “we accept the word ‘conviction’ as referring to

post-verdict judgment by a court, and not to the verdict by the jury itself[.]”

      Instantly,   following   the    technical   interpretation   of   the   words

“convicted” and “conviction” that we have utilized in other cases interpreting

various criminal statutes, § 9715 could be read that “any person sentenced

for murder of the third degree in the Commonwealth who has previously

been sentenced at any time of murder or voluntary manslaughter in this

Commonwealth . . . . shall be sentenced to life imprisonment.” At the same

time, the popular usage of the word “convicted” connotes a finding of guilt

and not a judgment of sentence.        See also Commonwealth v. Kimmel,

565 A.2d 426, 427 n.2 (Pa. 1989) (quoting Commonwealth v. Beasley,

479 A.2d 460 (Pa. 1984), and stating, “the term ‘convicted’ means ‘found

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guilty’ and not ‘found guilty and sentenced.’”). Indeed, it is apparent from

the entire statute and other related mandatory statutes that the terms

“convicted” and “conviction” used in § 9715 were used in their popular

sense.1 Moreover, we are bound by Morris. Nonetheless, I am troubled by

the apparent inconsistency in our interpretation of the words “convicted” and

“conviction.”2 In my view, the legislature would do well to define the words

“conviction” or “convicted” to reflect when it is using those words in either

their popular or technical sense.

       Judge Donohue joins this Concurring Opinion.




____________________________________________


1
  I am cognizant of the presumption that the legislature is aware of prior
decisional law when crafting statutory language.
2
  I recognize that the Morris Court did not focus its analysis on the use of
the word “convicted.”



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