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


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-02-0011687-2007, and
JOVON KNOX,                   :                remanding for resentencing.
                              :
             Appellant        :                ARGUED: April 8, 2014


                                 CONCURRING OPINION


MR. JUSTICE EAKIN                                 DECIDED: DECEMBER 15, 2014
       I disagree with the majority to the extent it suggests a conspiracy instruction can

constitute an adequate and independent basis for a possession conviction when an

individual is not charged with conspiracy to possess a firearm. Nonetheless, given

appellant’s failure to contest the conspiracy instruction, I agree the possession conviction

should be affirmed.

       The conspiracy instruction here represents a legal error. See Trial Court Opinion,

6/22/09, at 6-7 (utilizing conspiracy theory to sustain possession conviction). While the

jury could have found the evidence sufficient to convict appellant via joint and

constructive possession, or via accomplice liability, the same cannot be said for

conspiratorial liability. As the majority points out, the trial court gave the jury all three

theories on which it could convict appellant of the firearms charge.

       However, conspiracy is a distinct crime — it is not a statutory theory of liability for

criminal acts of other people. If one conspires to commit a crime, one is guilty of
conspiracy, but not the crime conspired. To be guilty of the underlying crime itself, one

must actually commit that crime or be liable for it under another theory, such as

accomplice liability, or here, constructive possession.           Accomplice liability and

constructive possession, unlike conspiracy, are not separate crimes but a means by

which one may be responsible for criminal acts of another.

       Thus, appellant here, not charged with conspiracy to possess the firearm, cannot

be found guilty of possession via “conspiracy liability.”        The trial court’s charge is

therefore in error.   Notwithstanding this, given appellant’s failure to challenge the

conspiracy instruction as a legal error, rather than collaterally as a sufficiency claim, such

a claim is not properly before this Court. See Pa.R.A.P. 302(a) (“Issues not raised in the

lower court are waived and cannot be raised for the first time on appeal.”). Therefore, as

the majority properly notes, the verdict is not assailable on the grounds before us, and I

concur in affirming the possession conviction.        I join the majority’s holding on the

question for which we accepted review, namely, that illegal possession of a firearm may

be based on an accomplice liability theory.




                              [J-18-2014] [MO: Saylor, J.] - 2
