December 15, 2014
COMMONWEALTH OF PENNSYLVANIA, Appellee
JOVON KNOX, Appellant
Argued April 8, 2014
Appeal from the Order of the Superior Court entered July 16, 2012 at No. 599 WDA 2009, vacating the Judgment of Sentence of the Court of Common Pleas of Allegheny County, entered September 23, 2008 at No. CP-02-0011687-2007, and remanding for resentencing. Appeal allowed June 6, 2013 at 472 WAL 2012. Trial Court Judge: Donna Jo McDaniel, President Judge. Intermediate Court Judges: Christine Donohue, Judith F. Olson, JJ. James J. Fitzgerald, III, Justice.
For Jovon Knox, APPELLANT: Thomas N. Farrell, Esq.
For Commonwealth of Pennsylvania, APPELLEE: Francesco Lino Nepa, Esq., Allegheny County District Attorney's Office; Michael Wayne Streily, Esq., Allegheny County District Attorney's Office.
BEFORE: MR. JUSTICE SAYLOR. CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, MCCAFFERY, STEVENS, JJ. Former Justice McCaffery did not participate in the decision of this case. Mr. Chief Justice Castille, Mr. Justice Baer, Madame Justice Todd and Mr. Justice Stevens join the opinion. Mr. Justice Eakin files a concurring opinion.
MR. SAYLOR, JUSTICE
This appeal concerns a criminal defendant's accountability for the illegal possession of a firearm by another, under accomplice-liability theory.
The facts underlying this appeal are cumbersome. In general, they reflect a recurring scenario in which a defendant (presently, Appellant) is charged with a possessory weapons offense deriving from the role of a firearm in a broader criminal undertaking, although, factually, another person (here, Appellant's brother) actually possessed the weapon during the episode and the defendant himself was unarmed. See generally State v. Williams, 315 N.J.Super. 384, 718 A.2d 721, 722 (N.J. Super. 1998) (commenting on the frequency of the above fact pattern, which " surely must be a common problem, given the prevalence of multi-defendant cases, such as this, in which crimes are committed as to which accomplice liability is properly charged but
wherein only one defendant may be carrying a weapon" ).
The weapon offense presently at issue -- " [f]irearms not to be carried without a license" -- pertains, inter alia, when an individual carries a concealed firearm on his person without a license. See 18 Pa.C.S. § 6106(a)(1) (setting forth and elaborating upon this general rule, as well as delineating a series of exceptions). Obviously, such permutation, on facial terms, does not apply to unarmed co-perpetrators in a larger criminal undertaking who simply are not " carr[ying] a firearm concealed on or about [their] person." Id. Nevertheless, the purport of the Superior Court's present opinion is that the possessory weapons offense extends to persons who may be accomplices in the abstract. See Commonwealth v. Knox, 2012 PA Super 148, 50 A.3d 749, 759 (Pa. Super. 2012) (determining, based on Appellant's presence at the scene of a robbery in which his brother pulled a gun on the victim, conduct in fleeing the scene with his brother, and conduct in lying to police about his involvement, that Appellant " acted as [his brother's] accomplice" and, as such, both " are criminally responsible for each other's actions" ). In substance, the Superior Court's approach embodies the now-defunct common-law principle that each accomplice bears equal criminal responsibility for all acts of his associates or confederates committed in furtherance of a common design. See Commonwealth v. Lassiter, 554 Pa. 586, 595 n.4, 722 A.2d 657, 661-62 n.4 (1998) (alluding to this common-law, common-design principle in a context in which it was not controlling and, thus, with no assessment of its continuing longevity).
Per the express terms of the Crimes Code, however, accomplice liability has been made offense-specific. Accordingly, the general rule is that a person is an accomplice of another in the commission of " an offense" if, acting with the intent to promote or facilitate the commission of " the offense," he solicits the other person to commit it or aids, agrees, or attempts to aid the other person in planning or committing it. 18 Pa.C.S. § 306(c). The broader approaches -- including the common-design theory and the related precept that an accomplice was liable for all of natural and probable consequences of the principal's actions in the commission of a target offense -- were supplanted by the General Assembly with the adoption of the Crimes Code and its incorporation of core restraints on criminal liability taken from the Model Penal Code. See generally Commonwealth v. Roebuck, 612 Pa. 642, 651-56, 32 A.3d 613, 618-22 (2011) (discussing the interrelationship between the culpability provisions of the Crimes Code and the Model Penal Code in terms of the treatment of accomplice liability).
In particular, the salient terms of Section 306 of the Crimes Code (" Liability for conduct of another; complicity" ) are derived from Section 2.06 of the Model Penal Code, which expressly rejected the expansive common-design and natural-and-probable-consequences doctrines, refocusing liability for complicity squarely upon intent and conduct, not merely results. See American Law Institute, Model Penal Code and Commentaries § 2.06 cmt. 6(b), at 312 (1985) (" [T]he liability of an accomplice ought not to be extended beyond the purposes that he shares. Probabilities have an important evidential bearing on these issues; to make them independently sufficient is to predicate the liability on negligence when, for good reason, more is normally required before liability is
found." ). After the passage of the Crimes Code, status as an accomplice relative to some crimes within a larger criminal undertaking or episode no longer per se renders a defendant liable as an accomplice for all other crimes committed. See Commonwealth v. Flanagan, 578 Pa. 587, 607-08, 854 A.2d 489, 501 & n.11 (2004). Rather, closer, offense-specific analysis of intent and conduct is required.
Accordingly, the Superior Court should have analyzed whether the evidence and reasonable inferences, taken in the light most favorable to the Commonwealth as the verdict winner, supported a conclusion that Appellant, acting with the intent to promote or facilitate his brother's unlicensed carrying of a concealed firearm, solicited his brother to commit such offense or aided, agreed, or attempted to aid his brother in doing so. See 18 Pa.C.S. § § 306(c), 6106(a)(1). In the absence of such a focused examination, the intermediate court's broader assertion that, as accomplices, Appellant and his brother each were criminally liable for the other's actions in the abstract is unsustainable.
Ordinarily, we would undertake sufficiency review on the appropriate terms or remand to the Superior Court in order for this to be accomplished. Presently, however, the trial court's charge to the jury encompassed multiple, independent bases to support a conviction on the possessory weapons offense. In addition to accomplice liability, the court discussed
such crime in terms of conspiratorial liability, as well as principal liability for the possessory weapons offense via theories of constructive and joint possession. See N.T., June 9, 2008, at 464-65. Since, however, there is no reviewable challenge to these additional liability predicates pending in this Court, each stands as an adequate and independent basis supporting Appellant's conviction. See generally Griffin v. United States, 502 U.S. 46, 56-60, 112 S.Ct. 466, 472-75, 116 L.Ed.2d 371 (1991) (refusing to set aside a verdict on sufficiency grounds merely because the evidence may have been insufficient to sustain one of several alternative, independent grounds for the conviction presented to a jury). With regard to these grounds, we note only that there are conceptual difficulties in addressing each, particularly with regard to possessory weapons offenses, and, accordingly, it is essential for advocates to sharpen their presentations to the judiciary in this area of the law.
The order of the Superior Court is affirmed, albeit that the supportive reasoning regarding the possessory weapons offense is disapproved.
Former Justice McCaffery did not participate in the decision of this case.
Mr. Chief Justice Castille, Mr. Justice Baer, Madame Justice Todd and Mr. Justice Stevens join the opinion.
Mr. Justice Eakin files a concurring opinion.
MR. EAKIN, JUSTICE
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.