J-A31032-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
DAVID ALLEN PEARL
Appellant No. 3226 EDA 2013
Appeal from the Judgment of Sentence November 6, 2013
in the Court of Common Pleas of Philadelphia County Criminal Division
at No(s): CP-51-CR-0012111-2011
BEFORE: BENDER, P.J.E., MOULTON , J., and FITZGERALD, J.*
JUDGMENT ORDER BY FITZGERALD, J.: FILED DECEMBER 08, 2016
Appellant, David Allen Pearl, appeals from the judgment of sentence
imposed in the Philadelphia County Court of Common Pleas following a
bench trial at which the trial court found him guilty of ethnic intimidation,1
but acquitted him of harassment.2 Appellant claims that the conviction for
ethnic intimidation must be vacated based on Commonwealth v.
Magliocco, 883 A.2d 479 (Pa. 2005). The Commonwealth agrees relief is
due. We vacate the judgment of sentence and discharge Appellant.
The factual and procedural history of this case is known to the parties,
and we need only reiterate that the trial court found Appellant guilty of
ethnic intimidation, but acquitted him of harassment. See N.T., Trial,
*
Former Justice specially assigned to the Superior Court.
1
18 Pa.C.S. § 2710(a).
2
18 Pa.C.S. § 2706(a)(1).
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11/6/13,3 at 18-19. The court immediately sentenced Appellant to one year
of probation. Appellant timely filed a notice of appeal on November 12,
2013. Appellant timely filed a court-ordered Pa.R.A.P. 1925(b) statement
asserting that “[t]he evidence was insufficient to convict [him] of ethnic
intimidation.”4 Amended Statement of Error Complained of on Appeal,
5/28/14, at ¶ 4.
The sole issue raised on appeal is whether Appellant’s conviction for
ethnic intimidation must be vacated because he was acquitted of
harassment. See Appellant’s Brief at 9. Following our review, we agree
with the parties that Magliocco compels this Court to vacate Appellant’s
conviction for ethnic intimidation.5 See Magliocco, 883 A.2d at 492-93
3
Although the cover sheet of the trial transcript indicates a date of
November 26, 2013, the docket confirms that the verdict was entered on
November 6, 2013, and we use the latter date for the purpose of citation.
4
Appellant’s phrasing of the error complained of on appeal is arguably too
vague to preserve Appellant’s issue. Appellant did not cite Magliocco or
refer to the acquittal on the charge of harassment. Moreover, the trial court
did not discern the specific challenge raised in this appeal. However, we
decline to find waiver. Cf. Commonwealth v. Laboy, 936 A.2d 1058, 1059
(Pa. 2007) (concluding that this Court “should have afforded the requested
sufficiency review” in a “relatively straightforward . . . case”). But see
Pa.R.A.P. 1925(b)(4)(vii); Commonwealth v. Williams, 959 A.2d 1252
(Pa. 2008).
5
Our standard of review is well settled. “The standard we apply in reviewing
the sufficiency of evidence is whether, viewing all the evidence admitted at
trial in the light most favorable to the verdict winner, sufficient evidence
exists to enable the fact finder to find every element of the crime beyond a
reasonable doubt.” Commonwealth v. Brown, 886 A.2d 256, 258 (Pa.
Super. 2005) (citations omitted). The crime of ethnic intimidation is defined
-2-
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(holding that (1) ethnic intimidation requires proof of the commission of a
predicate offense and (2) conviction for ethnic intimidation cannot stand
where the finder of fact “specifically found that [the defendant] did not
commit” a predicate offense). Accordingly, we vacate Appellant’s conviction
for ethnic intimidation and discharge Appellant.
Judgment of sentence vacated. Appellant discharged.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/8/2016
as follows: “A person commits the offense of ethnic intimidation if, with
malicious intention toward the race, color, religion or national origin of
another individual or group of individuals, he commits an offense under
any other provision of this article . . . .” 18 Pa.C.S. § 2710(a) (emphasis
added). Harassment is an offense under the same article as ethnic
intimidation. See 18 Pa.C.S. § 2709.
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