Appeal from the Order of the Superior Court at No. 1199 EDA 2007, dated 11-: 23-2009, vacating the judgment of sentence and remanding the Order of the Delaware Court of Common Pleas, Criminal Division, at No. CP-23-CR- 0004026, dated 4-17-2007.
The opinion of the court was delivered by: Mr. Justice McCAFFERY
The question presented for our review implicates the issue of inconsistent verdicts in the context of a second-degree murder conviction. Because the Superior Court erroneously concluded that a jury's verdict of guilt on a second-degree murder charge and its acquittal on the predicate felony of robbery were impermissibly inconsistent and could not stand, we vacate the Superior Court's order.
On or about April 11, 2006, Antoine Miller ("Appellee") brutally murdered Wallace Bivens in his Delaware County apartment and then stole his vehicle. Appellee was arrested later that evening after police noticed him driving the victim's vehicle without headlights and he engaged the officers in a high-speed chase. Appellee was charged with a number of violations of the Motor Vehicle Code, including fleeing or attempting to elude an officer, accident involving damage to unattended vehicle or property, and reckless driving.*fn1 Not yet realizing that the owner of the vehicle that Appellee was driving had been murdered, police impounded the vehicle and sent a notice of impoundment to the victim's residence. Approximately two weeks later, on April 24, 2006, while attempting to serve an eviction notice on the victim, a state constable discovered the victim's decaying body in the living room closet of his apartment. An autopsy revealed that the victim had died from multiple sharp and blunt wounds inflicted with at least two different instruments, which were not recovered.
In a trashcan in the victim's apartment, police found an iced tea can and a cigarette butt, which, upon subsequent analyses, were shown to contain Appellee's fingerprint and DNA, respectively. In addition, Appellee's thumbprint was detected on the outside doorknob of the door to the closet in which the victim's body was found. The victim's cell phone and cell phone holder, stained with blood, were found in the victim's impounded vehicle. DNA analysis revealed that the blood on the cell phone and holder matched that of the victim, as did blood found on a sneaker worn by Appellee when he was arrested in possession of the victim's vehicle. The final call made from the victim's cell phone was to Appellee.
Appellee was charged with first-, second-, and third-degree murder; robbery, which was the Commonwealth's predicate offense for the second-degree murder charge; aggravated and simple assault; theft, by unlawful taking and by receiving stolen property; and possessing an instrument of crime.*fn2 Following a jury trial, Appellee was found guilty of second-degree murder, theft by unlawful taking, and fleeing or attempting to elude an officer, but he was acquitted of first-degree murder, robbery, aggravated assault, and possessing an instrument of crime. The jury rendered no verdict on third-degree murder and theft by receiving stolen property. On April 17, 2007, following a pre-sentence investigation and psychiatric evaluation, the court sentenced Appellee to life imprisonment without parole for the second-degree murder conviction, as well as to a total term of not less than three nor more than six years' imprisonment for the theft and fleeing an officer convictions.
Appellant appealed to the Superior Court, contending that the evidence was insufficient to sustain his second-degree murder conviction because he had been acquitted of the predicate offense of robbery. The Superior Court reversed Appellee's second-degree murder conviction and vacated his judgment of sentence. In its unpublished memorandum opinion, the Superior Court reasoned that because the jury had acquitted Appellee of robbery, the Commonwealth had failed to prove that Appellee killed the victim while in perpetration of a robbery, and thus Appellee's second-degree murder conviction could not stand. Commonwealth v. Miller, 988 A.2d 725 (Pa.Super. 2009) (Table).
The Commonwealth filed a petition for allowance of appeal with this Court, which we granted on the following issue:
Does an acquittal of the felony upon which a second-degree murder charge is predicated necessitate reversal of the jury's second-degree murder conviction?
Commonwealth v. Miller, 5 A.3d 814 (Pa. 2010).*fn3 , *fn4
The question before us implicates the general issue of inconsistent verdicts, which, under longstanding federal and state law, are allowed to stand so long as the evidence is sufficient to support the conviction. See Dunn v. United States, 284 U.S. 390, 393 (1932) (holding that "[c]onsistency in the verdict is not necessary" and refusing to allow inconsistent verdicts to be upset by "speculation or inquiry" into the possibility of compromise or mistake on the part of the jury); United States v. Powell, 469 U.S. 57, 58 (1984) (applying Dunn's rule, which the Court explained as follows: "a criminal defendant convicted by a jury on one count could not attack that conviction because it was inconsistent with the jury's verdict of acquittal on another count"). In affirming a verdict of aggravated assault and battery, despite the jury's acquittal of the accused on a separate count of assault and battery, this Court reiterated that "[a]n acquittal cannot be interpreted as a specific finding in relation to some of the evidence." Commonwealth v. Carter, 282 A.2d 375, 376 (Pa. 1971) (citation omitted). Rather, an acquittal of a charge for which there was sufficient evidence for conviction is an occasion of a "jury's assumption of a power which [it] had no right to exercise, but to which [it was] disposed through lenity." Id. (citation omitted).
In Commonwealth v. Campbell, 651 A.2d 1096 (Pa. 1994), this Court relied on the reasoning of Dunn and Powell to conclude that a conspiracy conviction was valid even though the defendant's sole alleged co-conspirator had been acquitted after a joint trial. In reaching this holding, we summarized the various rationales that the Powell Court had advanced in support of the Dunn rule. First, the High Court reasoned that inconsistent verdicts "should not necessarily be interpreted as a windfall to the Government at the defendant's expense." Powell, supra at 65 (cited in Campbell, supra at 1100).
Rather, the High Court determined, it was equally possible that the jury was convinced of guilt and accordingly reached a verdict of guilty on the compound offense, but "then through mistake, compromise, or lenity," reached an inconsistent verdict of acquittal on the lesser offense. Id. Thus, although an inconsistent verdict constitutes jury "error," it is not at all clear whether the error was made at the expense of the Government or the defendant. "Given this uncertainty, and the fact that the Government is precluded [by double jeopardy considerations] from challenging the acquittal, it is hardly satisfactory to allow the defendant to receive a new trial on the conviction as a matter of course." Id. As the High Court concluded, "the fact that the inconsistency [in the verdict] may be the result of lenity, coupled with the Government's inability to invoke review, suggests that inconsistent verdicts should not be reviewable." Id.
A second factor recognized by the Powell Court in accepting inconsistent verdicts is the fact that "an individualized assessment of the reason for the inconsistency [either] would be based [ ] on pure speculation, or would require inquiries into the jury's deliberations that courts generally will not undertake." Id. at 66 (cited in Campbell, supra at 1100). Finally, the Powell Court noted that "a criminal defendant already is afforded protection against jury irrationality or error by the independent review of the sufficiency of the evidence undertaken by the trial and appellate courts." Id. at 67 (cited in Campbell, supra at 1100-1101). Recognizing that the Government must not only convince the jury with its evidence, but also satisfy the court that the jury could rationally reach a guilty verdict given the Government's evidence, the High Court concluded that "further safeguards against jury irrationality" were not necessary. Id.
This Court has previously addressed the issue of inconsistent verdicts in a second-degree murder case. See Commonwealth v. Gravely, 404 A.2d 1296 (Pa. 1979) (plurality). In Gravely, the defendant/appellant was found guilty of second-degree murder, but the jury was unable to reach a verdict as to the predicate charge of rape. Gravely sought relief on the grounds that the verdict was inconsistent, relief that this Court denied with little discussion or analysis, simply reiterating that "consistency in a verdict . is not necessary." Id. at 1301.*fn5
In Commonwealth v. Magliocco, 883 A.2d 479 (Pa. 2005), this Court returned to the issue of inconsistent verdicts, this time in relation to a conviction for ethnic intimidation, 18 Pa.C.S. § 2710. At the time of the offense in Magliocco, the Criminal Code provided that a person was 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 . with respect to one or more members of such a group." Magliocco, supra at 489 (quoting 18 Pa.C.S. § 2710).*fn6 The predicate offense in Magliocco was terroristic threats, 18 Pa.C.S. § 2706. Following a bench trial, the defendant/cross-appellee was found guilty of ethnic intimidation but he was acquitted of terroristic threats. He appealed his conviction to the Superior Court, arguing that the evidence was insufficient to prove ethnic intimidation because the Commonwealth had not proven that he had committed the offense of terroristic threats, as evidenced ...