                            [J-97-2014][M.O. – Baer, J.]
                   IN THE SUPREME COURT OF PENNSYLVANIA
                                EASTERN DISTRICT


COMMONWEALTH OF PENNSYLVANIA,                 :   No. 15 EAP 2014
                                              :
             Appellant                        :   Appeal from the Judgment of Superior
                                              :   Court entered on 12/26/13 at No. 2171
                                              :   EDA 2012 reversing the judgment of
             v.                               :   sentence entered on 7/24/12 in the
                                              :   Court of Common Pleas, Criminal
                                              :   Division, Philadelphia County at No.
WILLIAM LYNN,                                 :   CP-51-CR-0003530-2011
                                              :
             Appellee                         :   ARGUED: November 18, 2014


                                 DISSENTING OPINION


MR. CHIEF JUSTICE SAYLOR                                      DECIDED: April 27, 2015

      Because I differ with the majority’s interpretation of the endangerment statute

reposed in Section 4304(a) of the Crimes Code, I respectfully dissent.

      Preliminarily, the evidence viewed favorably to the Commonwealth suggests that

Appellee is indeed guilty of gross derelictions which caused widespread harm. The only

question before the Court, however, is whether the text of the endangerment statute, as

it existed in the pre-amendment timeframe, allowed the imposition of criminal culpability

upon Appellee. For the reasons which follow, I would find that it did not.

      The statute makes it an offense for a “parent, guardian or other person

supervising the welfare of a child” to knowingly endanger a child’s welfare by violating a

duty of care, protection, or support. 18 Pa.C.S. §4304(a) (1995), quoted in Majority

Opinion, slip op. at 19. The principal issue in this appeal pertains to the “supervision”

element of the pre-amendment offense. The question is whether that element was

directed to a person who supervised other people who were responsible for supervising
a child’s welfare, since there is little evidence that Appellee directly supervised the

welfare of any child at Saint Jerome’s Church or elsewhere.

       The Crimes Code states that its provisions should “be construed according to the

fair import of their terms.”    18 Pa.C.S. §105.     Where the fair import is not clearly

discernible, however, a reviewing court must select the principles that guide its

evaluative task. The Crimes Code itself states that, in such instances, “the language . .

. shall be interpreted to further the general purposes stated in this title and the special

purposes of the particular provision involved.” Id. Thus, I find the majority’s position to

be reasonable to the degree it relies on Commonwealth v. Mack, 467 Pa. 613, 359 A.2d

770 (1976), as setting forth the “special purposes” of the endangerment statute and

construing the statute accordingly.

       The difficulty, for me, is that this is not the only guidance we are given.       In

addition to the above, Section 105 states that the “general purposes” of the Crimes

Code should be considered, 18 Pa.C.S. §105, and the Statutory Construction Act

requires that, where a penal provision contains an ambiguity, it should be “strictly

construed in favor of lenity,” Commonwealth v. Bullock, 590 Pa. 480, 488, 913 A.2d

207, 212 (2006) (citing 1 Pa.C.S. §1928(b)(1)), meaning that the ambiguity should be

resolved in favor of the accused. See Commonwealth v. Booth, 564 Pa. 228, 234, 766

A.2d 843, 846 (2001). See generally Commonwealth v. Wooten, 519 Pa. 45, 53, 545

A.2d 876, 879 (1988) (“[A]ll penal provisions should be strictly construed, and . . . where

an ambiguity exists in the language employed by the legislature in a penal statute, it

should be interpreted in a light most favorable to the criminally accused.”).

       Further complicating the interpretive task, the official comment to Section 105 of

the Crimes Code denies what the text assumes, namely, that there can be a genuine

ambiguity. See 18 Pa.C.S. §105, Official Cmt. (“There is no valid reason why penal


                               [J-97-2014][M.O. – Baer, J.] - 2
statutes should not be reasonably construed according to the fair import of their

terms[.]” (emphasis added, internal quotation marks omitted)). Moreover, the general

purposes – which are listed in Section 104 – are multiple and conflicting. For example,

one purpose is to provide fair notice to citizens of the nature of the conduct which the

government considers to be criminal. See 18 Pa.C.S. §104(4).1 Another is to prevent

conduct that unjustifiably inflicts or threatens substantial harm. See id. §104(1). It can

hardly be denied that, over the general course of events in Pennsylvania, there will be

instances of harmful conduct the criminalization of which is not substantially clear. In

such cases, these “general purposes” of the Crimes Code are in significant tension.

       In light of this multitude of inconsistent, and sometimes conflicting, interpretive

principles woven into Pennsylvania law, I find it advisable to utilize, most prominently,

the rule of strict construction (or “lenity”) in relation to ambiguous criminal provisions.

The rule rests on constitutional foundations, see Dunn v. United States, 442 U.S. 100,

112, 99 S. Ct. 2190, 2197 (1979) (explaining that application of the rule of lenity is “not

merely a convenient maxim of statutory construction,” but rather, “it is rooted in

fundamental principles of due process which mandate that no individual be forced to

speculate, at peril of indictment, whether his conduct is prohibited”); see also United

States v. Lanier, 520 U.S. 259, 266, 117 S. Ct. 1219, 1225 (1997) (describing the lenity

rule as a “junior version” of the constitutional void-for-vagueness doctrine which, itself, is

based on the fair-warning requirement of the Due Process Clause), and its use is

consistent with past practice.2 Therefore, I must ultimately disagree with the majority


1
 Indeed, this is a due process requirement, see United States v. Batchelder, 442 U.S.
114, 123, 99 S. Ct. 2198, 2203 (1979), as discussed below.

2
 See, e.g., Commonwealth v. Booth, 564 Pa. 228, 246, 766 A.2d 843, 853 (2001);
Commonwealth v. Allsup, 481 Pa. 313, 317, 392 A.2d 1309, 1311 (1978); cf.
(Kcontinued)
                              [J-97-2014][M.O. – Baer, J.] - 3
opinion to the degree it suggests that the rule of strict construction does not pertain

relative to the endangerment statute. See Majority Opinion, slip op. at 41-42 (implying

that the endangerment statute represents an exception to the rule of strict construction);

id. at 50 (stating that we are “obligat[ed]” to “broadly” construe the endangerment

statute).3

        In the present context, there is, to my mind, substantial doubt that the pre-

amendment statute was intended to apply to individuals such as Appellee. It is true that

Appellee was obligated to protect children from sexually-abusive priests. However, I

find persuasive the Superior Court’s explanation that this amounted to a duty on the part

of Appellee, which is to be distinguished from supervision. See Commonwealth v. Lynn,

83 A.3d 434, 453 (Pa. Super. 2013). Additionally, the two examples provided by the

Legislature – parents and guardians – are in a very different position from Appellee

relative to the children under their care. See generally Commonwealth v. Russo, 594

Pa. 119, 130, 934 A.2d 1199, 1206 (2007) (noting that under the doctrine of ejusdem

generis, a general phrase “should be construed in light of the particular words preceding

it”).   Although these factors may not be determinative of legislative intent, they

demonstrate the existence of an ambiguity as to whether the pre-amendment statute

was meant to subsume supervisors-of-supervisors such as Appellee. That being the



(continuedK)
Commonwealth v. Dickson, 591 Pa. 364, 382, 918 A.2d 95, 106 (2007) (applying strict
construction to a mandatory minimum sentence provision of the Judicial Code).

3
   I recognize that the majority’s holding is not based on resolution of an ambiguity, but
on its determination that the statute by its plain terms encompassed Appellee’s conduct.
See Majority Opinion, slip op. at 57. Regardless, any suggestion that a particular
criminal provision should be exempted from the general rule of strict construction is
likely to lead to inconsistency and confusion in the interpretation of penal provisions
going forward – particularly in light of the varied interpretive approaches outlined above.


                             [J-97-2014][M.O. – Baer, J.] - 4
case, I would resolve the ambiguity in Appellee’s favor consistent with the foregoing

discussion.

      Finally, Appellee cannot, in my view, have been validly convicted as an

accomplice because the accomplice statute requires an intent to promote or facilitate

the offense in question. See 18 Pa.C.S. §306(c), quoted in Majority Opinion, slip op. at

35 n.20. Although, as observed, Appellee may have been substantially derelict in his

obligations, as I read the record there were no facts placed before the jury by which it

could reasonably conclude he affirmatively intended that children’s welfare be

endangered.




                            [J-97-2014][M.O. – Baer, J.] - 5
