                             [J-14-2014] [MO: Todd]
                   IN THE SUPREME COURT OF PENNSYLVANIA
                              EASTERN DISTRICT


COMMONWEALTH OF PENNSYLVANIA, :               No. 27 EAP 2013
                              :
                Appellant     :               Appeal from the Judgment of the Superior
                              :               Court entered on July 12, 2012, at No.
                              :               2032 EDA 2010, reversing and remanding
          v.                  :               the Judgment of Sentence entered on
                              :               March 16, 2012, in the Court of Common
                              :               Pleas of Philadelphia County, Criminal
JAMES R. MOORE,               :               Division, at Nos. CP-51-CR-0009849-
                              :               2008, MC-51-CR-0019450-2008, MC-51-
                Appellee      :               CR-0019451-2008 and MC-51-CR-
                              :               0019452-2008
                              :
                              :               ARGUED: March 12, 2014



                               CONCURRING OPINION


MR. JUSTICE BAER                                       DECIDED: October 30, 2014


      I agree with the Majority’s conclusion that Appellee’s acquittal of homicide does

not warrant a reversal of his conviction for possessing an instrument of crime (“PIC”).

Respectfully, however, I disagree with the majority’s holding that this case is

indistinguishable from Commonwealth v. Gonzalez, 527 A.2d 106 (Pa. 1987), and that it

is therefore necessary to overrule Gonzalez to decide correctly this case.

      Initially, I agree with the majority that Federal and Pennsylvania jurisprudence

have long recognized and supported the notion that acquittals are not tantamount to

factual findings and therefore do not render inconsistent verdicts improper so long as

there is sufficient evidence presented by the Commonwealth at trial to support the guilty
verdict. Commonwealth v. Carter, 282 A.2d 375, 376 (Pa. 1971) (internal quotation

marks omitted) (“[a]n acquittal cannot be interpreted as a specific finding in relation to

some of the evidence”); see also Commonwealth v. Miller, 35 A.3d 1206, 1208 (Pa.

2012) (citing Dunn v. United States, 284 U.S. 390, 393 (1932) and United States v.

Powell, 469 U.S. 57, 58 (1984)) (“inconsistent verdicts, [ ] under longstanding federal

and state law, are allowed to stand so long as the evidence is sufficient to support the

conviction”). Thus, I agree with the Majority that the Superior Court improperly extended

Commonwealth v. Magliocco, 883 A.2d 479 (Pa. 2005),1 beyond its statutory context

and consequently erred in reversing Appellee’s conviction for PIC.

       Because inconsistent verdicts are permissible, this case is best framed as a

sufficiency of the evidence challenge.       Pertinent to the issue before us, the United

States Supreme Court has held that review of a sufficiency challenge to a conviction

should not involve consideration of acquittal on a different charge as a fact disfavoring a

finding of evidentiary sufficiency. Indeed, the majority agrees with this premise: see

Maj. Slip Op. at 3; see also Powell, supra, at 67 (“[review of inconsistent verdicts]

should be independent of the jury’s determination that evidence on another count is

sufficient”); accord Carter, supra, at 376 (internal quotation marks omitted) (“[a]n

acquittal cannot be interpreted as a specific finding in relation to some of the evidence”).

       Accordingly, the rule that controls the propriety of inconsistent verdicts is as

follows: “[I]nconsistent verdicts . . . are allowed to stand so long as the evidence is

sufficient to support the conviction” notwithstanding the defendant’s acquittal on an


1
         In Magliocco, supra, at 493, we held that the defendant could not be convicted of
terroristic threats but acquitted of ethnic intimidation because the “commission” of
terroristic threats was a “specific statutory element of [ethnic intimidation]” i.e., terroristic
threats is a “compound offense.” Magliocco is distinguishable from the case at bar,
which does not involve a compound offense. See 18 Pa.C.S. § 907(a) (PIC statute).



                                [J-14-2014] [MO: J. Todd] - 2
accompanying charge. Miller, supra, at 1208. In determining whether there is sufficient

evidence to support a conviction, “the appellate court must view all the evidence and all

reasonable inferences drawn therefrom in the light most favorable to the

Commonwealth, as verdict winner.” Commonwealth v. Weston, 749 A.2d 458, 461 (Pa.

2000) (internal quotation marks omitted) (holding that a conviction of voluntary

manslaughter did not abrogate the requisite intent for PIC or criminal conspiracy when

there was sufficient evidence, notwithstanding the verdicts for the associated crimes,

that the defendant armed himself prior to going to the victim’s house, showing an intent

to threaten or harm the victim). Therefore, the sufficiency of the evidence review in the

instant case examines whether the evidence presented at trial, notwithstanding

Appellee’s acquittal for homicide, was sufficient to sustain his conviction for PIC, and

does not view as a relevant consideration Appellee’s acquittal on the homicide charge.

      The statute governing PIC provides, in pertinent part, “A person commits a

misdemeanor of the first degree if he possesses any instrument of crime with intent to

employ it criminally.” 18 Pa.C.S. § 907(a). Notably, PIC, by its definition, is an inchoate

crime, meaning that a defendant only has to intend to employ the instrument of crime

criminally; a defendant need not actually employ it or complete an associated crime.

See Commonwealth v. Andrews, 768 A.2d 309, 317 (Pa. 2001) (“possessing an

instrument of crime is an inchoate offense derived from the Model Penal Code”).

      Relevant to our sufficiency analysis of Appellee’s PIC conviction are two cases in

particular, Commonwealth v. Gonzalez, 527 A.2d 106 (Pa. 1987) and Commonwealth v.

Naranjo, 53 A.3d 66 (Pa. Super. 2012), both of which involved convictions for PIC and

an acquittal for murder. In Gonzalez, two gang members entered a store owned by the

defendant and threatened to steal a radio from another customer. Id. at 107. The

defendant-store owner forced the gang members out of his business, telling them,




                              [J-14-2014] [MO: J. Todd] - 3
“Don’t come back around here messing with my customers. I’m going to kill somebody.”

Id. One of the gang members, the victim, replied that he would “be back for [the

defendant],” and shortly thereafter, he returned to the defendant’s store with 15-20

fellow gang members. Id. The defendant, armed with a sawed-off shotgun he kept

under the counter in the store, fired at the victim, killing him. Police charged the

defendant with murder and PIC, and the jury subsequently acquitted him of murder and

voluntary manslaughter, but found him guilty of PIC. Id. at 107. On appeal, the Superior

Court affirmed his conviction. Commonwealth v. Gonzalez, 503 A.2d 455 (Pa. Super.

1985).

         On further appeal, we reversed, holding that “since [the defendant] did not

commit a crime with the shotgun, and no other evidence sufficient to support a finding of

criminal intent was presented at trial,” the Commonwealth did not prove the intent

element of PIC. Gonzalez, supra, at 108. The basis of our reversal was, therefore, the

lack of sufficient evidence to sustain the PIC conviction, not the failure of the jury to

convict defendant of the second charged crime of homicide.

         In a more recent Superior Court case, Naranjo, supra, at 68, the defendant and

the victim engaged in an argument over the telephone concerning the defendant’s

girlfriend, whom the victim had previously dated. During the course of the argument, the

defendant threatened to kill the victim, and the victim subsequently told the defendant to

meet him at a specified location in the City of Philadelphia so that they could “settle the

matter.” Id. The defendant arrived at the location armed with three weapons: an altered

metal ruler, a pair of scissors, and a multipurpose tool containing a pocketknife. Id. The

two men fought, and the defendant fatally stabbed the victim with what a medical expert

opined was the pocketknife. Id. The defendant admitted to stabbing the victim, but

claimed he did so in self-defense. Id. Police charged him with homicide and PIC, and




                              [J-14-2014] [MO: J. Todd] - 4
the jury subsequently acquitted him of the homicide charges but convicted him of PIC.

Id.

       On appeal, the Superior Court analyzed the defendant’s issue using a sufficiency

of the evidence framework, considering the precise issue we face here: Whether the

evidence is sufficient to support a defendant’s conviction for PIC when a jury acquits

him of homicide. Id. at 69. The court relied on the Gonzalez rationale while persuasively

noting the factual dissimilarities between the two cases. Id. at 69-70. Unlike Gonzalez,

where the victim threatened the defendant and brought 15-20 gang members to the

defendant’s store before he was shot with the defendant’s shotgun located in the store,

the defendant in Naranjo argued with the victim and threatened him; he then agreed to

enter into mutual combat with the victim, and arrived at an agreed-upon location while

armed with instruments of crime to do just that. Id. at 70.

       Accordingly, the Naranjo court explained that the evidence introduced at trial,

standing alone, showed that the defendant “could have possessed the items in order to

fight the decedent, without intending to cause his death, acting with the malice

necessary to establish murder, or being criminally reckless for purposes of the

involuntary manslaughter crime.” Id. at 71. Regardless of what crime the defendant

intended to commit while possessing the three weapons, the court ultimately held that

“the Commonwealth [ ] presented additional evidence aside from the homicide charges

which demonstrated an intent to employ the weapons criminally, i.e., [the defendant’s]

agreement to enter into a mutual fight.” Id. at 72.

       Examining the facts of the case now before us reveals that it is more in line with

Naranjo than Gonzalez. Unlike Gonzalez, Appellee was not approached on his own

property by a group of gang members. Rather, just as the defendant in Naranjo argued

with his victim and then went to an agreed-upon located to “settle the matter,” a review




                               [J-14-2014] [MO: J. Todd] - 5
of the trial record in the light most favorable to the Commonwealth reveals that Appellee

“tussled” with another man at a “speakeasy,” left the altercation to retrieve a Tec-9

handgun from his vehicle, returned to the establishment and indiscriminately opened

fire, hitting three individuals, one of whom suffered 12 gunshot wounds and one of

whom died from his injuries. Notes of Testimony (N.T.), January 12, 2010 at 143-48,

205, 221-26; N.T., January 13, 2010 at 15-18, 41-44. At any moment prior to the

shootings, Appellee, like the Naranjo defendant, had the opportunity to abort the

confrontation on his own by never retrieving the weapon from his car or not returning to

the speakeasy, thus preventing the altercation from escalating. Instead, he chose to

return to the speakeasy with the weapon and open fire.

       The moment Appellee chose to possess the gun as he retrieved it from the trunk

of his car is the pertinent temporal point of inquiry to ascertain Appellee’s intent for

purposes of PIC. The events occurring thereafter are only important because they

supported the Commonwealth’s theory that when Appellee secured the weapon from

his automobile it was with the intent to use it criminally. Moreover, up to that point

Appellee had merely been involved in a “tussle.” Accordingly, the Commonwealth’s

evidence was sufficient to demonstrate that Appellee did not retrieve his gun with the

belief that he was facing imminent harm;2 rather, (again viewing this case in a light most

favorable to the Commonwealth) he intended to return to the speakeasy to shoot

individuals within the facility.   Thus, there is ample evidence independent of the

homicide charge to support the guilty verdict for PIC.

2
       A claim of self-defense requires evidence establishing, inter alia, that the
defendant “reasonably believed that he was in imminent danger of death or serious
bodily injury and that it was necessary to use deadly force against the victim to prevent
such harm. . .”     Commonwealth v. Mouzon, 53 A.3d 738, 740 (Pa. 2012) (quoting
Commonwealth v. Samuel, 590 A.2d 1245, 1247-48 (Pa. 1991)).




                              [J-14-2014] [MO: J. Todd] - 6
       Moreover, this case is distinguishable from Gonzalez, where the defendant kept

a gun in his shop and only retrieved it from under a counter when confronted by 15-20

hostile gang members. Here, viewing the evidence in the light most favorable to the

Commonwealth, Appellee possessed the gun without necessity and with the intent to

use it unlawfully. Analogous to Naranjo, where the defendant possessed weapons with

the intent to fight, Appellee took possession of the gun with the intent to commit a crime.

Accordingly, I have no trouble finding that the Commonwealth presented sufficient

evidence to support the PIC conviction, notwithstanding Appellee’s acquittal of the

homicide charge.

       Thus, although the Majority reaches the correct result, there was no need for it to

overrule Gonzalez, which is factually distinguishable and not controlling herein. To

support overturning Gonazalez, the Majority opines that the Gonzalez Court

undermined the permissibility of inconsistent verdicts because it “inferred from the

defendant’s acquittals a specific factual finding with regard to the evidence: that the jury

believed the defendant’s self-defense claim.” Maj. Slip. Op. at 13-14. There is no

indication, however, that the Gonzalez Court improperly viewed the acquittal as a fact

for purposes of its sufficiency of the evidence analysis. To ascertain whether the

defendant possessed the requisite intent for his PIC conviction, the Court looked to

evidence presented at trial, including but not limited to the defendant’s statement that he

was “going to kill somebody” in the context of the altercation, the fact that the shotgun

was not shown or employed during the initial exchange with the two gang members,

and the location of the defendant’s shop, which was in high-crime area of Philadelphia.

The Court made one parenthetical reference to the jury’s verdict, stating simply that

“[The defendant’s] statement is consistent with an expression of his preparedness to kill

in self[-]defense (which is what the jury determined he did in this case).” Gonzalez,




                              [J-14-2014] [MO: J. Todd] - 7
supra, at 108 (emphasis in original). This parenthetical reference only states that the

jury’s verdict reflected the facts borne out at trial -- that defendant did not intend to

commit a crime when he possessed the shotgun -- not that the verdict itself was a fact

employed in the Court’s analysis of the sufficiency of evidence on the PIC charge. Id.

       Accordingly, Gonzalez in no way undermines this Court’s long-standing line of

precedent permitting inconsistent verdicts. In fact, it is wholly in accord with precedent

to that effect because the Court viewed the facts presented at trial to determine whether

the evidence was sufficient to show that the defendant had the requisite criminal intent

to support his PIC conviction without regard to a guilty verdict for the associated crime

and found that it was insufficient.

       This Court should not frustrate the fundamental principles of stare decisis by

overturning a case that does not contravene the doctrinal underpinnings of our existing

precedent and is not factually similar in regard to several crucial aspects to the case at

bar. Therefore, I concur in the result the Majority has reached, but not in its reasoning.

       Former Justice McCaffery did not participate in the decision of this case.




                               [J-14-2014] [MO: J. Todd] - 8
