J-S43009-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                        IN THE SUPERIOR COURT
                                                                  OF
                                                             PENNSYLVANIA
                             Appellee

                        v.

    JAMES DUANE BAKER-MYERS

                             Appellant                      No. 1398 WDA 2016


             Appeal from the Judgment of Sentence August 19, 2016
                 In the Court of Common Pleas of Mercer County
                Criminal Division at No: CP-43-CR-0001303-2015


BEFORE: STABILE, SOLANO, and FITZGERALD, * JJ.

DISSENTING MEMORANDUM BY STABILE, J.:                  FILED DECEMBER 29, 2017

        The learned Majority concluded that the evidence in support of

Appellant’s conviction for felony-three corruption of minors was legally

insufficient.   In reaching its conclusions, the Majority relied primarily upon

Commonwealth           v.    Magliocco,        883   A.2d   479   (Pa.   2005),   and

Commonwealth v. Kelly, 102 A.3d 1025 (Pa. Super. 2014) (en banc). The

Majority also distinguished the instant matter from Commonwealth v.

Aikens, 168 A.3d 137 (Pa. 2017). Because I disagree with the Majority’s

conclusion, I would affirm the judgment of sentence for the following reasons.

        Our Supreme Court explicitly limited the holding in Magliocco to the

ethnic intimidation statute, and expressly stated that it was not “generally

____________________________________________


*   Former Justice specially assigned to the Superior Court.
J-S43009-17



applicable to other offenses.” Commonwealth v. Miller, 35 A.3d 1206, 1213

(Pa. 2012) (discussing, inter alia, the applicability of Magliocco). Yet, despite

the limited applicability of Magliocco, the Majority applies it to the case sub

judice.

      To the extent Magliocco is applicable, I would note that operative

language in Section 6301 of the Crimes Code at issue here is different from

the operative language in Section 2710 of the Crimes Code at issue in

Magliocco.

      At the time Magliocco was decided, Section 2710 of the Crimes Code

provided that a person is guilty of ethnic intimidation “if, with malicious

intention toward the race . . . of another individual or group of individuals, he

commits an offense under any other provision of this article or under

Chapter 33 ... or under section 3503 ... or under section 5504 ... with respect

to such individual ... or with respect to one or more members of such a group.”

18 Pa.C.S.A. § 2710(a) (emphasis added).

      The crime of corruption of minors, at issue here, is defined in the Crimes

Code as follow:

      Whoever, being of the age of 18 years and upwards, by any
      course of conduct in violation of Chapter 31 (relating to sexual
      offenses) corrupts or tends to corrupt the morals of any minor less
      than 18 years of age, or who aids, abets, entices or encourages
      any such minor in the commission of an offense under Chapter 31
      commits a felony of the third degree.

18 Pa.C.S.A. § 6301(a)(1)(ii) (emphasis added). As can be seen, proof of

commission of a predicate crime was an element of the crime of ethnic

                                      -2-
J-S43009-17


intimidation in Magliocco. Here, the felony crime of corruption of minors

does not require proof of the commission of a predicate crime, but only proof

of a course of conduct, i.e., acts that corrupt the morals of a minor.

       The Majority finds that the Section 2710 and Section 6301 are similar in

that both require proof of the commission of predicate crimes. The Majority

states “Kelly makes clear that felony-three COM, like the ethnic intimidation

statute discussed in Magliocco, requires that the defendant commit

predicate crimes….”         Majority Memorandum at 10 (emphasis added).       I

believe this to be incorrect, as this Court in Kelly held that “any course of

conduct” requires proof of more than one act.1       Kelly, 102 A.3d at 1033.

Proof of acts, as opposed to proof of the commission of a predicate crime, to

establish the felony-three corruption of minor crime is consistent with how

Section 6301 has been construed. See Commonwealth v. Anderson, 550

A.2d 807 (Pa. Super. 1988) (en banc).

       In Anderson, we sustained a conviction for corruption of a minor even

though the defendant had been acquitted of two counts of indecent assault

based upon the same acts underlying the corruption of a minor charge. We

reinstated the jury’s verdict for corruption of minors stating:



____________________________________________


1 In Kelly, our Court, sitting en banc, merely addressed the question of what
constitutes “course of conduct” for purposes of Pa.C.S.A. § 6301. We held
that course of “conduct of conduct” requires proof of multiple acts over time
in violation of Chapter 31. Kelly, 102 A.3d at 1031.


                                           -3-
J-S43009-17




     Because we find that the convictions resulted from the
     introduction of sufficient evidence of specific acts by
     Anderson, and because these underlying acts, and not
     indecent assault, formed the basis of the corruption of minors
     charge, we reverse the trial court’s order, reinstate the jury
     verdict and remand for sentencing.

Id. at 807. (Emphasis added). Indeed, we noted with disapproval that


     [i]n its discussion, the trial court refers to “indecent assault” and
     the underlying alleged “specific acts” interchangeably, implying
     that they amount to the same thing. The court then proceeds on
     the assumption that indecent assault is an element of corruption
     of a minor and so interprets the general jury verdict as presenting
     a finding that the underlying act was not committed.

Id. at 808.

We explained that:

     It is well settled that “[a]n acquittal cannot be interpreted as a
     specific finding in relation to some of the evidence.”
     Commonwealth v. Carter, 444 Pa. 405, 408, 282 A.2d 375, 376
     (1971) (citation omitted). When a general verdict is rendered,
     knowledge of the basis of the decision rests only with the jury
     itself. Therefore, it is impossible, not to mention improper, to
     draw specific conclusions from a general verdict. Applied to the
     present case, this principle yields the conclusion that an acquittal
     on indecent assault cannot be interpreted to mean as a matter of
     law that there was insufficient evidence to establish that the
     underlying acts in fact occurred.

Id. at 809.

Further, we noted that:

     the information did not allege the crime of indecent assault as the
     basis of the corruption of minors charge. Rather, the information
     specifically based the corruption of minors charge upon the acts
     of cunnilingus. Although the jury returned a verdict of not guilty
     of indecent assault by committing the acts of cunnilingus, we

                                     -4-
J-S43009-17


      cannot determine if the jury decided that the acts of cunnilingus
      did not occur, or if the acts of cunnilingus occurred but the victims
      consented to them, or if the jury was simply exercising leniency.
      We cannot determine why the jury returned a verdict of not
      guilty, and therefore cannot say as a matter of law that the
      jury believed that the acts of cunnilingus did not occur.

Id. (emphasis added).

      Here, similar to Anderson, the information did not allege rape, sexual

assault, aggravated indecent assault, or indecent assault as the basis for the

corruption of minors charge. Rather, the information based the corruption of

minors charge on the act of engaging in sexual intercourse with a 17 year-old

victim. Although the jury returned a verdict of not guilty on the charges of

rape, sexual assault, aggravated indecent assault, and indecent assault, it is

impossible to determine whether the jury decided that the act of sexual

intercourse did not occur, or that other elements of the other crimes charged

were not proven to the jury’s satisfaction, or whether the jury was simply

exercising leniency.    In light of Anderson, I would reject Appellant’s

sufficiency of the evidence challenge.

      Moreover, as in Aikens, the trial court here specifically instructed the

jury that, to find Appellant guilty of corruption of minors, it was required to

find that Appellant corrupted or tended to corrupt the morals of a minor while

engaged in a course of conduct in violation of Chapter 31 relating to the other

sexual offenses being rape, sexual assault, and indecent assault. See N.T.

Trial, 4/12/16-4/13/16, at 147.    Because the jury found Appellant was guilty

of corruption of minors, the conviction for corruption of minors must stand

                                      -5-
J-S43009-17


even if the jury ultimately found Appellant did not commit any of the

underlying Chapter 31 offenses.     Thus, in my view, the Commonwealth

presented sufficient evidence to support Appellant’s conviction of corruption

of minors.   While the verdicts rendered here are inconsistent, inconsistent

verdicts are lawful. See, e.g., Commonwealth v. Talbert, 129 A.3d 536,

545 (Pa. Super. 2015). Accordingly, I would affirm the judgment of sentence.




                                    -6-
