                           [J-61-2015] [M.O. - Wecht, J.]
                   IN THE SUPREME COURT OF PENNSYLVANIA
                                MIDDLE DISTRICT


COMMONWEALTH OF PENNSYLVANIA,                 :   No. 45 MAP 2015
                                              :
                     Appellant                :   Appeal from the Order of the Superior
                                              :   Court at No. 2016 MDA 2012 dated
                                              :   October 29, 2014, reconsideration
              v.                              :   denied January 8, 2015, which
                                              :   Affirmed/Vacated/Remanded the order
                                              :   from the Bradford County Court of
SCOTT BRADLEY KINGSTON,                       :   Common Pleas, Criminal Division, at
                                              :   No. CP-08-CR-0000735-2009 dated
                     Appellee                 :   October 22, 2012.
                                              :
                                              :   SUBMITTED: August 31, 2015


                                 DISSENTING OPINION


CHIEF JUSTICE SAYLOR                                    DECIDED: August 15, 2016


       The majority holds that Section 906’s prohibition against convictions “of more

than one of the inchoate crimes of criminal attempt, criminal solicitation or criminal

conspiracy for conduct designed to commit or to culminate in the commission of the

same crime” operates only horizontally, i.e., to foreclose convictions for combinations of

different inchoate crimes, but not vertically to preclude convictions for multiple instances

of any one of the named inchoate offenses. 18 Pa.C.S. §906. From my point of view,

the statute is materially ambiguous in such regard, and accordingly, the rule of lenity

should be applied to enforce horizontal and vertical preclusion.

       In its reasoning rejecting vertical preclusion, the majority first states that

acceptance of such proscription “would require us to privilege the unspoken ‘counts’

over the express enumeration of distinct inchoate offenses.” Majority Opinion, slip op.
at 10. In point of fact, however, no such privileging is required, since extension of a rule

of preclusion across the two categories which are facially encompassed within the

statute simply is not an either-or proposition. Along these lines, I also do not see what

is added through the observation that the Crimes Code may otherwise frequently speak

in terms of “counts” or “violations.” See id. at 10-11. Straightforwardly, a crime is

simply a violation of the law, see BLACK'S LAW DICTIONARY (17th ed. 1999); accord 18

Pa.C.S. § 106, so that the use of the terms “violation,” versus “count,” versus “crime”

would seem to me to be immaterial. Accordingly, the answer to the majority’s defining

question – “[m]ore than one what?” – seems apparent. Majority Opinion, slip op. at 12.

Section 906 bars convictions of more than one crime or crimes in the delineated

circumstances.

       The majority also finds the Legislature’s use of the term “crimes” in Section 906,

as opposed to “crime” to be clarifying. See Majority Opinion, slip op. at 11-12. From my

point of view, again, little grammatical difference arises out of the use of the plural form,

and certainly not one so great as to remove the manifest ambiguity from the statute.

       In terms of the policy, it seems to me that the Legislature may have contemplated

both horizontal and vertical preclusion to mitigate some of the conceptual difficulties

surrounding inchoate offenses by curtailing their proliferation in association with a single

object crime.1 Notably, and in all events, the Sentencing Code has been structured to

allow a range of serious penalties and to afford sentencing courts discretion to consider

various factors, which would include whether there may have been multiple acts or


1
  As an example of the difficulty arising out of the litigation of multiple inchoate crimes,
in the present case the Commonwealth was required to forego one of the conspiracy
convictions given that the relevant offense had mistakenly been characterized as
solicitation on the jury verdict slips deriving from the nineteen charged, interwoven, and
substantially overlapping inchoate crimes. See N.T., May 17, 2010, at 3.



                             [J-61-2015] [M.O. - Wecht, J.] - 2
instances of solicitation, for example. In Appellee’s case, the status of solicitation of

perjury as a third-degree felony (carrying a maximum prison sentence of seven years,

see 18 Pa.C.S. §1103(3)), and solicitation of hindering prosecution as a misdemeanor

of the second degree (implicating a maximum sentence of two years, see id. §1104(2)),

would have left Appellant exposed to an aggregate maximum sentence of at least

eighteen years’ imprisonment arising out of his various efforts to thwart his prosecution

for DUI,2 even assuming that vertical preclusion would apply.             See generally

Commonwealth v. Hoke, 599 Pa. 587, 594, 962 A.2d 664, 668 (2009) (explaining that

inchoate crimes have the same maximum sentences as the underlying crime, per

Section 905(a) of the Crimes Code, 18 Pa.C.S. §905(a)).3

      I recognize that the majority’s construction of Section 906 is consistent with the

approach of some other courts, see, e.g., State v. Badillo, 317 P.3d 315, 320 (Or. Ct.

App. 2013), and, in fact, may reflect the more likely underlying objective of the drafters

of the Model Penal Code who originally formulated the proscription. See AMERICAN LAW


2
  In this regard, Appellee was also convicted of conspiracy to solicit another person
(Steven Boller) to solicit Mroz to hinder the prosecution and commit perjury.
Parenthetically, while these sorts of double inchoate offenses may implicate conceptual
legal questions in their own right, see, e.g., Ira P. Robbins, Double Inchoate Crimes, 26
HARV. J. ON LEGIS. 1 (1989), Appellee has not challenged these conspiracy convictions
on such terms.
3
  In this respect, I note that the Commonwealth already has had the benefit of the
Legislature’s allowance for multiple, factually-overlapping crimes (solicitation of
hindering prosecution and solicitation of perjury), arising out of the same conduct.
I would also not rule out that some of Appellee’s acts may have been directed toward
separate crimes, i.e., variously, to incite his father, his mother, and Ms. Mroz to commit
perjury. See generally Commonwealth v. Jacobs, 614 Pa. 664, 674, 39 A.3d 977, 983
(2012) (plurality) (discussing the “narrow view of the object crime” taken by the Court in
past decisions). In this respect, I note only that the present appeal has not been framed
in a way that requires sifting through fact-bound matters of this sort.



                            [J-61-2015] [M.O. - Wecht, J.] - 3
INSTITUTE, PROPOSED OFFICIAL DRAFT         OF THE   MODEL PENAL CODE §5.05(3) (1962).

Nevertheless, left to my own devices, in the face of these sorts of material ambiguities

in statutes implicating substantial criminal liabilities, I favor more consistent application

of the rule of lenity, thus leaving it to the Legislature to make its intentions plain and

explicit to the degree that it favors more punitive approaches.               Accord, e.g.,

Commonwealth v. Booth, 564 Pa. 228, 234, 766 A.2d 843, 846 (2001) (explaining that,

“where ambiguity exists in the language of a penal statute, such language should be

interpreted in the light most favorable to the accused” (citing Commonwealth v. Wooten,

519 Pa. 45, 53, 545 A.2d 876, 879 (1988))).4 In this vein, I regard some of the courts’

efforts to draw firm conclusions from ambiguous language to be problematic in their own

right.

         For the above reasons, I would affirm the order of the Superior Court.




4
   I acknowledge that there is a trend toward diluting the rule of lenity. See, e.g.,
Muscarello v. United States, 524 U.S. 125, 138-39, 118 S. Ct. 1911, 1919 (1998)
(indicating that the rule applies only when a criminal statute contains a “grievous
ambiguity or uncertainty,” and “only if, after seizing everything from which aid can be
derived,” the Court “can make ‘no more than a guess as to what Congress intended’”
(citations omitted)). For my own part, given the substantial liberty interests involved, I
remain a closer adherent to the more traditional formulations. See, e.g., United States
v. Wiltberger, 18 U.S. 76, 105 (1820) (“[P]robability is not a guide which a court, in
construing a penal statute, can safely take.”).



                              [J-61-2015] [M.O. - Wecht, J.] - 4
