Commonwealth v. Magliocco

CONCURRING AND DISSENTING OPINION BY

McEWEN, P.J.E.

¶ l The author of the Majority Opinion has undertaken his usual perceptive and persuasive expression of rationale, and I join in that part of the Opinion supporting the reversal of appellant’s conviction for ethnic intimidation. I am compelled, however, and quite respectfully, to depart from the decision to affirm appellant’s conviction for possession of an instrument of crime.

¶ 2 Appellant contends that the Commonwealth’s evidence was insufficient to sustain the conviction for possessing an instrument of crime because it failed to prove that baseball bats are “commonly” used for criminal purposes. As the Majority Opinion recounts, this argument implicates fundamental principles of statutory construction.

¶ 3 The offense of “possessing instruments of crime” is defined in the Crimes Code as follows:

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). An “instrument of crime” is defined as:

Anything commonly used for criminal purposes and possessed by the actor under circumstances not manifestly appropriate for lawful uses it may have.

18 Pa.C.S. § 907(d)(2) (emphasis supplied).1 This latter definition is derived from the 1996 amendment to section 907 of *1288the Code.2 That amendment followed a 1995 amendment3 that had deleted the word “commonly” from the definition of “instrument of crime.” The 1995 amendment had been passed in apparent response to the Pennsylvania Supreme Court’s decision in Commonwealth v. Ngow, 539 Pa. 294, 652 A.2d 305 (1995), a case in which the Supreme Court held that the Commonwealth could not sustain its burden of proof to show that a baseball bat was an instrument of crime without pro-during evidence that “a significant proportion of assaults involve[d] baseball bats.” Id. at 297, 652 A.2d at 306.4

¶ 4 The trial judge acknowledged the fact that the statute contained the modifier “commonly” but concluded, nonetheless, that “the 1996 amendment overlooked the 1995 amendment and, on its face, appeared to amend the pre-1995 amendment version of the statute,” and found that the commonness of use requirement did not apply.5 I am unable to accept this analysis.

*1289¶ 5 The Pennsylvania Statutory Construction Act provides in relevant part that:

(a) The object of all interpretation and construction of statutes is to ascertain and effectuate the intention of the General Assembly. Every statute shall be construed, if possible, to give effect to all its provisions.
(b) When the words of a statute are clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit.

1 Pa.C.S. § 1921(a),(b) (emphasis supplied).

¶ 6 The late, legendary Justice James T. McDermott, opined for the Supreme Court in Commonwealth v. Lobiondo, 501 Pa. 599, 462 A.2d 662 (1983), that

[a] statute must be construed if possible to give effect to all of its provisions. Commonwealth v. Pope, 455 Pa. 384, 317 A.2d 887 (1974); Commonwealth v. McHugh, 406 Pa. 566, 178 A.2d 556 (1962). It is presumed that every word, sentence or provision of a statute is intended for some purpose and accordingly must be given effect; and if a statute contains its own definitions, the meaning of a term as defined at common law, or as construed under prior statutes is not controlling. See Commonwealth v. Sitkin’s Junk Co., 412 Pa. 132, 194 A.2d 199 (1963).

Lobiondo, supra at 603, 462 A.2d at 664 (emphasis supplied).

¶ 7 Mindful of this guidance from the Supreme Court, this Court, in Commonwealth v. Lopez, 444 Pa.Super. 206, 663 A.2d 746 (1995), summarized this principle of statutory construction as follows:

When interpreting a statute, the court must ascertain and effectuate the intent of the legislature and give full effect to each provision of the statute if at all possible. 1 Pa.C.S. § 1921(a); Commonwealth v. Brown, 423 Pa.Super. 264, 266, 620 A.2d 1213, 1214 (1993); Commonwealth v. Edwards, 384 Pa.Super. 454, 460, 559 A.2d 63, 66 (1989), appeal denied, 523 Pa. 640, 565 A.2d 1165 (1989). In construing a statute to determine its meaning, courts must first determine whether the issue may be resolved by reference to the express language of the statute, which is to be read according to the plain meaning of the words. 1 Pa.C.S. § 1903(a). See Commonwealth v. Berryman, 437 Pa.Super. 258, 649 A.2d 961 (1994) (en banc).

Lopez, supra at 748 (emphasis supplied). And in the case of Grom v. Burgoon, 448 Pa.Super. 616, 672 A.2d 823 (1996), this Court further explained:

When the words of a statute are clear and unambiguous, a court cannot disregard them under the pretext of pursuing the spirit of the statute. 1 Pa.C.S. § 1921(a); Coretsky v. Board of Commissioners of Butler Township, 520 Pa. 513, 555 A.2d 72 (1989). Only if a statute is unclear may a court embark upon the task of ascertaining the intent of the legislature by reviewing the necessity of the act, the object to be attained, the circumstances under which it was enacted and the mischief to be remedied. Id. *1290at 517-18, 555 A.2d at 74 (citing 1 Pa. C.S. § 1921(c)).

Grom, supra at 825.

¶ 8 The Commonwealth contends, and the Majority essentially agrees, that we should extrapolate from the history of this statute an interpretation of section 907 that omits the word “commonly.” In support of this argument the Commonwealth relies upon section 1954 of the Statutory Construction Act, which provides, inter alia, that if “insertions in and the deletions from [a] statute made by [a] previous amendment are not incorporated in the latter, they shall nevertheless be read into the later amendment as though they had in fact been incorporated therein.” 1 Pa. C.S. § 1954. While this “corrective construction” section may be effective in the context of a civil statute,6 it simply cannot stand constitutional scrutiny in the criminal context, where the law is clear that legislative enactments must “give fair warning of their effect and permit individuals to rely on their meaning until explicitly changed.” Carmell v. Texas, 529 U.S. 513, 531 n. 21, 120 S.Ct. 1620, 1632 n. 21, 146 L.Ed.2d 577, 594 n. 21 (2000).7

¶ 9 For the above-stated reasons I cannot join the decision to “correct” what is perceived as a legislative mistake, and must adhere to the position that any “correcting” of this statute should be undertaken by the General Assembly. Since, therefore, I would measure the Commonwealth’s evidence against the explicit language of the statute,8 I am compelled to the conclusion that the Commonwealth’s evidence was insufficient to sustain appellant’s conviction of possession of an instrument of crime, Commonwealth v. Ngow, supra, and I would, therefore, vacate the conviction on this charge.

. This language differs from that reproduced in Purdon's Pennsylvania Consolidated Statutes Annotated, which does not contain the highlighted word “commonly.” Given this unusual divergence between what is in the official reports and the unofficial volume that is so often depended upon by lawyers and trial courts, this Court sought certification *1288from the "Office of the Secretary of the Commonwealth” so as to verify the official version of the statute. In response, we received the following certification:

I,Kim Pizzingrilli, Secretary of the Commonwealth of Pennsylvania, DO HEREBY CERTIFY, that it appears by the records of this office that the attached is a true and correct copy of Act 98 of 1996, passed on the 11th day of July, 1996, as the same appears of record and remains on file in this office.
IN TESTIMONY WHEREOF, I have hereunto set my hand and caused the seal of my Office to be affixed, the day and year above written [December 17, 2001],
Isl Kim Pizzingrilli
Secretary of the Commonwealth

Attached to this certification is a page from the Laws of Pennyslvania, the official Pennsylvania statutes, which recites the definition of "instrument of crime” identical to that set out in the body of this Dissenting Opinion. This certification confirms that the applicable statute did contain, and continues to contain, the word "commonly” as a modifier for the element “used”.

. Act of July 11, 1996, P.L. 552, No. 98, § 1.

. Act of July 6, 1995, P.L. 238, No. 27, § 1.

. The basis of the Court’s rationale was that "commonness of use [was] an element of the crime and must be proved beyond a reasonable doubt.” Commonwealth v. Ngow, 539 Pa. 294, 297, 652 A.2d 305, 306 (1995).

. The trial court opined:

The defendant asserts that although the possession of an instrument of crime statute was amended in 1995 to eliminate the "commonness of use” requirement, the requirement was restored in a subsequent amendment in 1996.... The sole effect of the 1995 amendment was to eliminate the "commonness of use” requirement and was a direct response to a 1995 decision by the Pennsylvania Supreme Court that a baseball bat cannot be considered to be an instrument of crime unless the Commonwealth proves through competent evidence that “a significant proportion of assaults involves baseball bats.” Commonwealth v. Ngow, 539 Pa. 294, 652 A.2d 305 (1995). On the other hand, the 1996 amendment made it a criminal offense to possess "unlawful body armor” and made some minor stylistic changes to the statute. The 1996 amendment overlooked the 1995 amendment and, on its face, appeared to amend the pre-1995 amendment version of the statute, which included the "commonness of use” requirement However, where the 1996 amendment properly underscored and bracketed the "unlawful body armor” and stylistic changes, it simply included the word "commonly” without in any way indicating that it was being reinserted into the statute. The question of whether the commonness of use requirement was again made part of the statute is answered by the rule of statutory construction set forth at 1 Pa.C.S. § 1954:
“Whenever a statute has been more than once amended, the latest amendment shall be read into the original statute as previously amended and not into such statute as originally enacted. This rule applies whether or not the previous amendment is referred to and whether or not its language is incorporated in the *1289latest amendment. If the insertions in and the deletions from the statute made by the previous amendment are not incorporated in the latter, they shall nevertheless be read into the later amendment as though they had in fact been incorporated therein.”

Consequently, the Commonwealth was [not] required to prove that a baseball bat is commonly used for criminal purposes. Cf. Commowealth v. Vida, 715 A.2d 1180 (Pa.Super.1998), appeal denied, 558 Pa. 608, 736 A.2d 604 (1999) (paint stick held to be an instrument of crime — statute does *1290not require showing that instrument is commonly used for criminal purposes).

. It bears mention, however, that research discloses no instances in which the effectiveness of this section has been tested.

. It also bears emphasis that the Pennsylvania Statutory Construction Act specifically delineates ''[pjenal provisions” as one of the categories which require "strict” construction. 1 Pa.C.S. § 1928(b)(1).

.Because this is a pure question of law, our standard of review governing this inquiry is plenary. Commonwealth v. Hockenbury, 549 Pa. 527, 531 n. 3, 701 A.2d 1334, 1336 n. 3 (1997).