J-S40045-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                      IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

SCOTT BRADLEY KINGSTON,

                            Appellant                  No. 2016 MDA 2012


                 Appeal from the PCRA Order October 22, 2012
               In the Court of Common Pleas of Bradford County
              Criminal Division at No(s): CP-08-CR-0000735-2009


BEFORE: BENDER, BOWES, and PANELLA, JJ.

CONCURRING AND DISSENTING MEMORANDUM BY BOWES, J.:

                                                     FILED OCTOBER 29, 2014

       I agree with the distinguished majority that Appellant’s subject matter

jurisdiction claim is without merit.           The courts of common pleas in

Pennsylvania are competent to try any criminal case arising in Pennsylvania

and therefore have subject matter jurisdiction. Commonwealth v. Bethea,

828 A.2d 1066 (Pa. 2003). Appellant’s actual challenge relates to venue. In

this respect, I concur with the majority’s assessment that his venue position

does not afford him relief. Appellant is not eligible for relief on his venue

issue because it was waived, 42 Pa.C.S. § 9544(b), and he has not raised it

as an ineffective assistance of counsel claim.1         However, I respectfully
____________________________________________


1
   The majority finds Appellant’s venue claim is not cognizable. The use of
this phrase was the subject of a portion of my disagreement with the learned
(Footnote Continued Next Page)
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dissent from the majority’s suggestion that trial counsel may be ineffective

for not contesting Appellant’s sentences on three distinct solicitation to

commit perjury counts and three separate solicitation to hinder prosecution

charges, based on 18 Pa.C.S. § 906.

       Initially, the majority incorrectly maintains that a similar § 906 issue

was presented but found to be waived in Commonwealth v. Wade, 33

A.3d 108 (Pa.Super. 2011) (Bowes, J.).            See Majority Memorandum, at 9

n.2.    Further, the majority errs in determining that Wade implicitly

recognized that § 906 would bar multiple convictions of possession of an

instrument of crime (“PIC”). Section 906 was not at issue in Wade and was

neither mentioned nor analyzed. Indeed, the defendant therein did not raise

any contention under § 906.           This is because § 906 no longer pertains to

PIC, which was the relevant crime being discussed in the portion of Wade

relied on by the majority.         Compare Commonwealth v. Ford, 461 A.2d

1281 (Pa.Super. 1983) (holding, based on an earlier version of 18 Pa.C.S. §

906, which read, “A person may not be convicted of more than one offense

defined by this chapter for conduct designed to commit or to culminate in

the commission of the same crime[,]” that a defendant cannot be sentenced


                       _______________________
(Footnote Continued)

author of the present majority in Commonwealth v. Descardes, 2014 PA
Super 210 (en banc). To the extent that the majority decision can be read
to suggest that Appellant could raise his venue challenge via a writ of
habeas corpus or coram nobis, I strongly separate myself from such a
reading.



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for both PIC and attempted murder where those two inchoate crimes have

the same criminal objective). The pertinent question in Wade was whether

the defendant’s multiple PIC convictions were part of one criminal episode.

Section 906 had no bearing on the outcome or analysis in that decision.

Accordingly, reliance on Wade is misplaced.

      The majority also acknowledges that there are no reported decisions

supporting its conclusion that § 906 precludes multiple sentences for

criminal solicitations designed to culminate in the commission of perjury at

Appellant’s earlier DUI trial.   Yet, it implicitly concludes that trial counsel

could be ineffective in not raising this novel statutory interpretation absent

some reasonable basis.     The majority does state that it cannot determine

actual prejudice based on the record.       However, the issue is a matter of

statutory interpretation, which is a pure question of law, subject to de novo

review.   See Commonwealth v. Chester, __ A.3d __ (Pa. 2014) (filed

September 24, 2014). Either § 906 prohibits multiple sentences for criminal

solicitation that were intended to culminate in the commission of perjury and

hindering prosecution at one trial, or it does not. If § 906 does not operate

in the manner articulated by the majority, then, as a matter of law,

Appellant cannot establish prejudice (or arguable merit) and it would be

unnecessary to remand to the PCRA court for an evidentiary hearing.

      Regardless, I find it perplexing to determine that trial counsel is

ineffective for failing to anticipate this Court’s potential novel interpretation

of § 906. While this interpretation would not be a new rule of law since it is

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based on statutory interpretation, see Fiore v. White, 757 A.2d 842 (Pa.

2000), I believe the majority misreads the statute and mistakenly extends

the law to Appellant’s commission of distinct criminal acts of solicitation.

      Section 906 currently provides, “[a] person may not be convicted 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.”        18 Pa.C.S. § 906.       The

import of this language has consistently been recognized:          A defendant

cannot be sentenced for criminal attempt to commit murder, criminal

solicitation to commit murder, and criminal conspiracy to commit murder,

where a single murder was the objective of the attempt, conspiracy, and

solicitation. The same principle applies to other underlying crimes.

      The statute does not preclude a sentence on multiple solicitation

counts where the defendant, on separate dates, solicited a person to commit

the same crime. This is because there are multiple solicitation crimes being

committed, i.e., distinct criminal acts and episodes. The majority essentially

re-writes the statute to say, “a person may not be convicted of more than

one criminal attempt, criminal solicitation or criminal conspiracy for conduct

designed to commit or to culminate in the commission of the same crime.”

Instantly, the fact that the person being solicited would only be able to

perjure herself at one trial or hinder prosecution at that trial does not alter

the plain fact that Appellant committed separate criminal acts of solicitation.

This situation would be different had Appellant, in a single letter, solicited

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Ms. Mroz to commit perjury and offered three separate mechanisms to do

so.

      Thus, the majority’s example of soliciting a burglarly is inapt. In that

situation, multiple sentences could be issued if the solicitations occurred on

three separate dates.    See Commonwealth v. Grekis, 601 A.2d 1284,

1294 (Pa.Super. 1992).    Of course, if the person only solicited the person

one time, but offered separate manners of completing the burglary, only one

solicitation occurred. Thus, the majority’s logic is faulty. This Court’s dicta

in Grekis supports my standard reading of the statute.         In Grekis, the

defendant, on three separate occasions occurring weeks apart, solicited a

minor to engage in involuntary deviate sexual intercourse (“IDSI”).         The

defendant was not sentenced on each count, however, he contended that he

could not be convicted of each separate count.      This Court set forth that

even if the court imposed separate sentences on the charges it would not

have been improper because he committed three distinct acts of solicitation.

      The majority distinguishes Grekis on the ground that the defendant

therein could have performed three IDSI crimes, rather than one IDSI crime.

See Majority Memorandum, at 10. Here, it is true that, based on Appellant’s

solicitations, Ms. Mroz could only perjure herself at Appellant’s original DUI

trial and not on multiple occasions outside of that trial.   This distinction is

legally insignificant since in both situations the defendant committed

separate solicitation crimes.   Under the majority’s logic, a person who

solicits a person on two occasions, a year apart, to murder his or her spouse

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could only be sentenced on one count of solicitation because the spouse

could only be murdered one time. In my view, the plain language of Section

906 does not support such a strained reading.

      Section 906 has consistently been applied to preclude multiple

sentences for criminal attempt to commit crime X, criminal conspiracy to

commit crime X, and criminal solicitation to commit crime X, not to prohibit

sentencing on multiple acts of criminal solicitation. Section 906, at its core,

is a merger type statute.     Merger statutes focus on prohibiting multiple

sentences for single criminal acts or episodes resulting in the commission of

one crime. Insofar as the majority decision implies that Appellant’s

solicitations were one criminal episode, such an issue would have to be

presented to the jury. See Wade, supra (discussing Commonwealth v.

Andrews, 768 A.2d 309 (Pa. 2001)).              Appellant does not level an

ineffectiveness claim premised on counsel’s failure to seek a jury instruction

on this issue.

      I am aware that § 906 issues have been held to implicate the legality

of sentence, see Commonwealth v. Jacobs, 39 A.3d 977 (Pa. 2012), and

would not necessarily require the issue to be forwarded under the

ineffectiveness rubric and can be raised sua sponte.         Nonetheless, no

Pennsylvania court that I am aware of has sua sponte ruled that sentences

for separate solicitations to commit the same crime are illegal under § 906.

      As the majority’s reading of the statute is unsupported by any case

law, could result in incongruous results, and is inconsistent with the ordinary

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reading of the statute, I cannot agree that trial counsel could potentially be

found ineffective for failing to advance the novel interpretation of § 906

posited by the majority.2         Nor would I find that Appellant’s sentence is

illegal. Therefore, I respectfully dissent and would affirm.




____________________________________________


2
   I recognize that counsel may be found ineffective for failing to level a
challenge even where no case law exists on the subject where a plain
reading of a statute would support the argument. See Commonwealth v.
Jones, 416 A.2d 539 (Pa.Super. 1979). This case is not such a situation
because it is premised on a legally unsupported interpretation of 18 Pa.C.S.
§ 906.



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