Opinion
No. 72 MAP 2017
04-26-2019
COMMONWEALTH of Pennsylvania, Appellee v. Tyrice GRIFFIN, Appellant
OPINION
This discretionary appeal requires us to determine whether, under Pennsylvania's recidivist sentencing statute, 42 Pa.C.S. § 9714, a second-strike offender is to receive separate mandatory minimum sentences for a conspiracy conviction and a conviction for the offense underlying that conspiracy, when both offenses are separately listed as "crimes of violence" subject to the sentencing enhancement. Consistent with the result reached by the Superior Court, we hold that a second-strike offender is to receive a mandatory minimum sentence for both convictions. Accordingly, we affirm the judgment of the Superior Court.Tyrice Griffin (Appellant) and his cohort, Juan Carlos Garcia, committed three armed robberies of restaurants/bars over the span of approximately one month beginning in October 2013. The first robbery occurred on October 8, 2013, at the Belvedere Restaurant in Lancaster County, followed by a second robbery days later at Arooga's Tavern in Cumberland County. The last robbery occurred November 4, 2013, at the Whitpain Tavern in Montgomery County.
The second-strike provision of Pennsylvania's recidivist sentencing statute is located at 42 Pa.C.S. § 9714(a)(1) and is set forth more fully infra at pages 830–31. It provides, in pertinent part, that "[a]ny person who is convicted ... of a crime of violence shall, if at the time of the commission of the current offense the person had previously been convicted of a crime of violence, be sentenced to a minimum sentence of at least ten years of total confinement." Id. As discussed in more detail below, subsection 9714(g), which is set forth in full infra at page 831, lists the various crimes which constitute crimes of violence for purposes of applying the sentencing enhancement. Most relevant to this appeal, the list in subsection 9714(g) includes "robbery ... or ... criminal conspiracy" to commit robbery. Id. § 9714(g).
Each robbery was committed in a similar fashion, with both men together approaching an employee of the particular establishment who happened to be outside on break, discarding trash, or attending to other duties in the early hours of the morning. Appellant wielded a revolver, and Garcia brandished a BB-gun. The men attempted to obscure their faces by wearing bandanas or ski masks. Appellant and Garcia led the employee into the building where Appellant would collect money from cash registers and office safes, while Garcia kept watch of the door or the people inside the establishment. The men also took money, cellular phones, and other personal items from the employees and patrons of the various restaurants.
Appellant was eventually apprehended and charged with a number of offenses at two separate bills in connection with the armed robberies. The cases were later consolidated, and the matter proceeded to a jury trial. Following trial, the jury convicted Appellant of three counts of robbery, three counts of conspiracy to commit robbery, and three counts of firearms not to be carried without a license.
The trial court also convicted Appellant of three distinct counts of persons not to possess a firearm via bench trial.
Prior to sentencing, the Commonwealth notified Appellant of its intent to seek mandatory sentences under Pennsylvania's recidivist sentencing statute based upon the fact that Appellant had previously been convicted of third-degree murder. The trial court then held a sentencing hearing, at which the parties agreed that Appellant was subject to the second-strike offender portion of section 9714 based upon his prior third-degree murder conviction. As both robbery and conspiracy to commit robbery constitute crimes of violence under subsection 9714(g), the trial court imposed six second-strike mandatory minimum sentences of 10 to 20 years of incarceration for each of Appellant's three convictions for robbery and three convictions for conspiracy to commit robbery. All sentences were set to run consecutively, resulting in an aggregate sentence of 60 to 120 years of imprisonment. Appellant filed a post-sentence motion, which the trial court denied.
Appellant received no further penalty for the remaining convictions.
Appellant then appealed his judgment of sentence to the Superior Court challenging, inter alia , the trial court's imposition of separate consecutive second-strike sentencing enhancements for each of his robbery and conspiracy convictions. In a published opinion, the Superior Court affirmed Appellant's judgment of sentence. Commonwealth v. Griffin , 149 A.3d 349 (Pa. Super. 2016). In rejecting Appellant's challenge to the trial court's application of the recidivist sentencing enhancement, the Superior Court relied upon Commonwealth v. Fields , 630 Pa. 625, 107 A.3d 738 (2014), where this Court held that, under subsection 9714(a)(1), a second-strike offender is to receive a mandatory minimum sentence "for each conviction of a crime of violence that is part of the second strike." Fields , 107 A.3d at 744. Although Appellant argued that Fields did not apply to the facts herein, where separate second-strike sentencing enhancements were imposed for both the conspiracy and the object of the conspiracy, the Superior Court observed that Appellant offered no authority for that assertion.
Appellant further asserted that subsection 9714(g) defines a crime of violence as substantive offenses like robbery "or" inchoate crimes like conspiracy, and that subsection 9714(g)'s use of the word "or" in listing the crimes of violence is indicative of the Legislature's intent that the sentencing enhancement apply to either the principal offense or the conspiracy to commit that offense, but not both. The Superior Court, however, explained that subsection 9714(g) simply lists the subset of crimes subject to the provisions of the recidivist sentencing statute and employs the word "or" throughout the subsection to show that there are numerous offenses that constitute crimes of violence and therefore trigger the sentencing enhancement.
The court further reasoned that subsection 9714(g) does not contain any language describing when or how the sentencing enhancement should be applied, and that this information was instead set forth in subsection 9714(a)(1). It thus rejected Appellant's claim that subsection 9714(g)'s use of the word "or" before its list of inchoate crimes prevents simultaneous application of the sentencing enhancement for the principal offenses, perceiving "no basis for adopting such a tortured interpretation." Griffin , 149 A.3d at 353. The Superior Court therefore held that, consistent with Fields , the trial court did not err in imposing multiple mandatory minimum sentences for Appellant's robbery and conspiracy convictions.
We granted review in this matter to decide "[w]hether the Superior Court erred in affirming the imposition of separate consecutive ‘second strike’ mandatory minimum sentence[s] for each conspiracy and crime which was the object of that conspiracy." Commonwealth v. Griffin , 643 Pa. 681, 174 A.3d 565 (2017) (per curiam ). Our resolution of this issue requires us to interpret section 9714 of the Sentencing Code, which presents the Court with a question of law. As such, our standard of review is de novo , and our scope of review is plenary. Commonwealth v. McClintic , 589 Pa. 465, 909 A.2d 1241, 1245 (2006).
In deciding issues of statutory interpretation, we are guided by the Statutory Construction Act, 1 Pa.C.S. §§ 1501 - 1991, which directs us to ascertain and effectuate the intent of the General Assembly. Id. § 1921(a). Generally, the plain language of the statute itself provides the clearest indication of legislative intent. McClintic , 909 A.2d at 1245. "In reading the plain language, ‘[w]ords and phrases shall be construed according to rules of grammar and according to their common and approved usage,’ while any words or phrases that have acquired a ‘peculiar and appropriate meaning’ must be construed according to that meaning." Id. (quoting 1 Pa.C.S. § 1903(a) ). Further, "[w]hen 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(b). We also note that, in ascertaining legislative intent, we presume that the legislature does not intend a result that is "absurd, impossible of execution or unreasonable," and that the legislature "intends the entire statute to be effective and certain." Id. § 1922(1)-(2). Finally, while penal statutes are to be construed against the government, "the straightforward meaning of such provisions should be adhered to absent an ambiguity." Fields , 107 A.3d at 743.The second-strike provision of Pennsylvania's recidivist sentencing statute provides, in relevant part:
Any person who is convicted in any court of this Commonwealth of a crime of violence shall, if at the time of the commission of the current offense the person had previously been convicted of a crime of violence, be sentenced to a minimum sentence of at least ten years of total confinement, notwithstanding any other provision of this title or other statute to the contrary.
42 Pa.C.S. § 9714(a)(1). As noted previously, subsection 9714(g) provides the definition of a crime of violence as used in subsection 9714(a)(1):
(g) Definition.-- As used in this section, the term "crime of violence" means murder of the third degree, voluntary manslaughter, manslaughter of a law enforcement officer as defined in 18 Pa.C.S. § 2507(c) or (d) (relating to criminal homicide of law enforcement officer), murder of the third degree involving an unborn child as defined in 18 Pa.C.S. § 2604(c) (relating to murder of unborn child), aggravated assault of an unborn child as defined in 18 Pa.C.S. § 2606 (relating to aggravated assault of unborn child), aggravated assault as defined in 18 Pa.C.S. § 2702(a)(1) or (2) (relating to aggravated assault), assault of law enforcement officer as defined in 18 Pa.C.S. § 2702.1 (relating to assault of law enforcement officer), use of weapons of mass destruction as defined in 18 Pa.C.S. § 2716(b) (relating to weapons of mass destruction), terrorism as defined in 18 Pa.C.S. § 2717(b)(2) (relating to terrorism), trafficking of persons when the offense is graded as a felony of the first degree as provided in 18 Pa.C.S. § 3002 (relating to trafficking of persons), rape, involuntary deviate sexual intercourse, aggravated indecent assault, incest, sexual assault, arson endangering persons or aggravated arson as defined in 18 Pa.C.S. § 3301(a) or (a.1) (relating to arson and related offenses), ecoterrorism as classified in 18 Pa.C.S. § 3311(b)(3) (relating to ecoterrorism), kidnapping, burglary as defined in 18 Pa.C.S. § 3502(a)(1) (relating to burglary), robbery as defined in 18 Pa.C.S. § 3701(a)(1)(i), (ii) or (iii) (relating to robbery), or robbery of a motor vehicle, drug delivery resulting in death as defined in 18 Pa.C.S. § 2506(a) (relating to drug delivery resulting in death), or criminal attempt, criminal conspiracy or criminal solicitation to commit murder or any of the offenses listed above, or an equivalent crime under the laws of this Commonwealth in effect at the time of the commission of that offense or an equivalent crime in another jurisdiction.
Id. § 9714(g).
In their briefs to this Court, the parties focus their arguments on whether the Legislature used the word "or" to separate the substantive offenses from the inchoate offenses listed in subsection 9714(g) as an "inclusive" or "exclusive" disjunction. Appellant takes the position that the Legislature used the disputed "or" as an exclusive disjunction. In support of his position, Appellant argues that the word "or" is an exclusive disjunction according to its common and ordinary usage, including when used in penal statutes. Appellant's Brief at 11-12 (relying upon, inter alia , In re Paulmier , 594 Pa. 433, 937 A.2d 364, 373 (2007) (explaining that "or" is "disjunctive," meaning "one or the other of two or more alternatives").
By way of further explanation on the inclusive or exclusive nature of the word "or," we offer the following:
The word "or" can be construed as exclusive or inclusive, leading to confusion about which variant of "or" applies in a given context. Legal sources differ on which meaning of "or" is authoritative. In the realm of symbolic logic, the exclusive "or," otherwise known as the exclusive disjunction, means that only one of the propositions or terms joined by the disjunction can be true. "Jim is eight or nine years old" is exemplary of an exclusive disjunction because only one proposition in the disjunction can be true. On the other hand, an inclusive disjunction assumes that either one or both of the terms or propositions on either side of the disjunction are true. A sentence like, "X will call or email Y," does not necessarily denote an exclusive disjunction, but rather, it leaves open the possibility that X could call and email Y. Essentially, an inclusive disjunction allows the possibility of either option, or both, which is also the literal meaning of and/or . The difficulty with competing versions of a disjunction is that when used in plain English, a reader must dissect what type of disjunction it is, leaving more room for confusion.
Ira P. Robbins, "And/or" and the Proper Use of Legal Language , 77 Md. L. Rev. 311, 318-19 (2018) (footnotes omitted).
The Defender Association of Philadelphia has filed an amicus curiae brief on behalf of Appellant, where it advances various arguments in support of the position that the "or" separating the substantive offenses from the inchoate offenses listed in subsection 9714(g) is exclusive in nature.
Appellant further argues that subsection 9714(g) is separated into four categories: (1) enumerated substantive offenses; (2) inchoate offenses as they relate to the commission of murder or any of the enumerated substantive offenses; (3) equivalent crimes under the law of Pennsylvania in effect at the time of the offense; and (4) equivalent crimes in another jurisdiction. Appellant contends that the enumerated substantive offenses listed first in subsection 9714(g) are categorized together because they are all crimes of violence in and of themselves. Appellant asserts that the latter three categories of offenses, consisting of inchoate offenses and so-called "equivalent offenses," are distinct from the first category of enumerated substantive offenses, but are similar to each other in that they (1) are deemed to be crimes of violence only by virtue of their relationship to the enumerated substantive offenses in the first category, and (2) trigger application of the sentencing enhancement even in the absence of a conviction on an enumerated substantive offense.
Emphasizing the above similarities and the ordinary use of the word "or" as an exclusive disjunction, Appellant claims that the Legislature's use of the word "or" to separate the first category from the latter three categories signals its intent to offer alternative means to invoke the mandatory minimum sentence, only one of which can be relied upon to do so. Thus, according to Appellant, he can only receive the sentencing enhancement on each of his three robbery convictions or each of his three convictions for conspiracy to commit those same robberies, not all six convictions.
"In other words, [the latter three categories] are offered as alternatives for cases in which a defendant's conduct does not result in the conviction of an enumerated offense, but is so similar to [an enumerated] offense that the [L]egislature set forth an alternative means of triggering the mandatory minimum." Appellant's Brief at 14-15.
Appellant also argues that, to the extent the Legislature's intent cannot be attained with sufficient certainty, any ambiguity should be interpreted in his favor. Appellant's Brief at 15.
The Commonwealth counters that the word "or" is most often used as an inclusive disjunction. Commonwealth's Brief at 15-16 (quoting Burke v. State , 352 Or. 428, 290 P.3d 790, 794 (2012) (explaining that "it has been asserted that, in legal drafting, it is more often the case that the connective ‘or’ is used in the inclusive sense") ). The Commonwealth argues that the General Assembly "unquestionably used ‘or’ as an inclusive disjunction many times throughout the definition of ‘crime of violence,’ " and that the "plain text shows that ‘or’ was consistently used to expand," not contract, the category of crimes that meet the definition. Id. at 16-17. The Commonwealth asserts that Appellant's unstated premise is that the General Assembly meant to use "or" inclusively in some instances, but exclusively in others throughout subsection 9714(g), and the Commonwealth argues that, as the Superior Court explained, "[o]ur courts do not dissect statutory text and interpret it in a vacuum." Id. at 17-18 (quoting Griffin , 149 A.3d at 353 ).
While the parties focus their arguments on subsection 9714(g), we begin our analysis of the issue raised with a review of subsection 9714(a)(1), which, as noted by the Superior Court, indicates the manner in which the sentencing enhancement should apply to a second-strike offender. Subsection 9714(a)(1) provides that anyone who is convicted of a crime of violence shall receive a mandatory minimum sentence if, at the time of the commission of his current offense, the person had been previously convicted of a crime of violence. 42 Pa.C.S. § 9714(a)(1).
In Fields , supra , this Court addressed whether subsection 9714(a)(1) requires that a second-strike offender receive a mandatory minimum sentence for each conviction of a crime of violence that is part of his second strike. This Court answered that question in the affirmative, explaining that a straightforward reading of the second-strike provision requires the imposition of the sentencing enhancement so long as a defendant previously committed a crime of violence and his current offense is a crime of violence. Fields , 107 A.3d at 743-44. Thus, pursuant to Fields , where a defendant is convicted of multiple current offenses as part of his second strike, a court should look to each offense and determine whether it constitutes a crime of violence under subsection 9714(g). Here, because both of Appellant's current offenses of robbery and conspiracy to commit robbery are defined as crimes of violence under subsection 9714(g), he is to receive a mandatory minimum sentence for each offense pursuant to subsection 9714(a)(1) and Fields .
As noted previously, in an attempt to avoid this result, Appellant takes the position that, by separating the enumerated substantive offenses and inchoate offenses with the alleged exclusive disjunction "or," subsection 9714(g) precludes the imposition of multiple mandatory minimum sentences for the commission of a substantive crime of violence and an inchoate crime of violence for which the same substantive crime of violence serves as the underlying offense. In response, the Commonwealth argues that the disputed "or" is inclusive in nature. In presenting these arguments, however, the parties conflate subsection 9714(g), which simply lists the offenses that constitute crimes of violence for purposes of applying the sentencing enhancement to second-strike offenders, with subsection 9714(a)(1), the provision governing the actual application of the enhancement to second-strike offenders. We are unpersuaded that the Legislature intended for subsection 9714(g), a definitional provision, to impact the actual application of the sentencing scheme to repeat offenders in the manner argued before us, particularly on the sole basis that the disputed "or" as used in subsection 9714(g) is either exclusive or inclusive. Thus, we reject the parties' arguments to that effect.
While not at issue in this case, subsection 9714(a)(2) governs application of the recidivist sentencing scheme to third-strike offenders. That subsection provides, in relevant part:
Where the person had at the time of the commission of the current offense previously been convicted of two or more such crimes of violence arising from separate criminal transactions, the person shall be sentenced to a minimum sentence of at least 25 years of total confinement, notwithstanding any other provision of this title or other statute to the contrary.
42 Pa.C.S. § 9714(a)(2). Based upon subsection 9714(a)(2)'s inclusion of the restrictive phrase "such crimes of violence arising from separate criminal transactions," which does not appear in subsection 9714(a)(1) relating to second-strike offenders, this Court held that a third-strike offender who has committed multiple crimes of violence during a single criminal episode is subject to only one 25-year sentencing enhancement pursuant to subsection 9714(a)(2). McClintic , 909 A.2d at 1242.
Thus, just as application of the recidivist sentencing scheme to a second-strike offender is governed by subsection 9714(a)(1) as interpreted by Fields , application of the recidivist sentencing scheme to a third-strike offender is governed by subsection 9714(a)(2) as interpreted by McClintic .
In sum, subsection 9714(a)(1) is the provision that governs the application of the recidivist sentencing enhancement to a second-strike offender. Under that provision, as interpreted by Fields , a second-strike offender is to receive a sentencing enhancement for each crime of violence that is part of his second strike. Here, Appellant is a second-strike offender whose second strike includes three convictions for robbery and three convictions for conspiracy to commit those same robberies. Robbery and conspiracy to commit robbery are crimes of violence as defined in subsection 9714(g). Because all six of Appellant's robbery and conspiracy convictions constitute crimes of violence, both the trial court and Superior Court correctly determined that Appellant, as a second-strike offender, is to receive a sentencing enhancement for each conviction. Accordingly, we affirm the Superior Court's judgment.
Justices Todd, Donohue, Dougherty, Wecht and Mundy join the opinion.
Justice Wecht files a concurring opinion.
Chief Justice Saylor files a dissenting opinion.
JUSTICE WECHT, Concurring
I agree that all six of Tyrice Griffin's convictions constitute "crimes of violence" under Subsection 9714(g) of the Sentencing Code. See 42 Pa.C.S. § 9714(g). I also agree that, per this Court's decision in Commonwealth v. Fields , 630 Pa. 625, 107 A.3d 738 (2014), the trial court correctly imposed a mandatory minimum sentence for each of Griffin's convictions. Thus, I join the learned Majority in full. I write separately to offer another reason that Griffin's interpretation of Subsection 9714(g) is untenable.
Subsection 9714(a)(1) of the Sentencing Code (the so-called "second-strike provision" at issue here) mandates that repeat perpetrators of certain enumerated violent crimes are subject to a ten-year mandatory minimum sentence:
Any person who is convicted in any court of this Commonwealth of a crime of violence shall, if at the time of the commission of the current offense the person had previously been convicted of a crime of violence, be sentenced to a minimum sentence of at least ten years of total confinement, notwithstanding any other provision of this title or other statute to the contrary.
42 Pa.C.S. § 9714(a)(1).
In the same section of the Sentencing Code, the General Assembly defined the term "crime of violence" as follows:
As used in this section, the term "crime of violence" means murder of the third degree, voluntary manslaughter, manslaughter of a law enforcement officer as defined in 18 Pa.C.S. § 2507(c) or (d) (relating to criminal homicide of law enforcement officer), murder of the third degree involving an unborn child as defined in 18 Pa.C.S. § 2604(c) (relating to murder of unborn child), aggravated assault of an unborn child as defined in 18 Pa.C.S. § 2606 (relating to aggravated assault of unborn child), aggravated assault as defined in 18 Pa.C.S. § 2702(a)(1) or (2) (relating to aggravated assault), assault of law enforcement officer as defined in 18 Pa.C.S. § 2702.1 (relating to assault of law enforcement officer), use of weapons of mass destruction as defined in 18 Pa.C.S. § 2716(b) (relating to weapons of mass destruction), terrorism as defined in 18 Pa.C.S. § 2717(b)(2) (relating to terrorism), trafficking of persons when the offense is graded as a felony of the first degree as provided in 18 Pa.C.S. § 3002 (relating to trafficking of persons), rape, involuntary deviate sexual intercourse, aggravated indecent assault, incest, sexual assault, arson endangering persons or aggravated arson as defined in 18 Pa.C.S. § 3301(a) or (a.1) (relating to arson and related offenses), ecoterrorism as classified in 18 Pa.C.S. § 3311(b)(3) (relating to ecoterrorism), kidnapping, burglary as defined in 18 Pa.C.S. § 3502(a)(1) (relating to burglary), robbery as defined in 18 Pa.C.S. § 3701(a)(1)(i), (ii) or (iii) (relating to robbery), or robbery of a motor vehicle, drug delivery resulting in death as defined in 18 Pa.C.S. § 2506(a) (relating to drug delivery resulting in death), or criminal attempt, criminal conspiracy or criminal solicitation to commit murder or any of the offenses listed above, or an equivalent crime under the laws of this Commonwealth in effect at the time of the commission of that offense or an equivalent crime in another jurisdiction.
42 Pa.C.S. § 9714(g).
Griffin concedes that robbery is a crime of violence, and further concedes that conspiracy to commit robbery, standing alone, would therefore be a crime of violence as well. His only argument is that conspiracy to commit robbery is not a crime of violence when the conspirator also has committed the underlying robbery that was the object of the conspiracy. Thus, Griffin argues, he should have received three (but not six) mandatory minimum sentences—one for each of his three conspiracy/robbery conviction combinations.
Griffin's argument is rooted in the text of Subsection 9714(g), which says that "the term ‘crime of violence’ means" robbery or conspiracy to commit robbery—which Griffin understands to mean either robbery or conspiracy to commit robbery, but not both . The Majority skillfully explains why Griffin's interpretation is strained and counterintuitive. See Maj. Op. at 833–34. In short, Griffin's reading of the statute bases too much upon far too little. Subsection 9714(g) is simply a list of crimes that the General Assembly has classified as violent. Nothing in the statute suggests that the General Assembly anticipated some offenses being "crimes of violence" when committed alone, only to be transformed into nonviolent crimes when committed along with some other offense. The inquiry here is simple: Is the crime one of those listed in the definition of "crime of violence"? If so, it is a crime of violence. Otherwise, it is not. See Fields , 107 A.3d at 743 ("[T]he sentence enhancement is required so long as the defendant meets two prerequisites: he previously committed a crime of violence, and his current offense is a crime of violence.").But assume for a second that Griffin is correct that the "ordinary meaning" of the word "or" is "one or the other, but not both." See Brief for Griffin at 14. In that case, Subsection 9714(g) would tell us that the term crime of violence "means" robbery or conspiracy to commit robbery, but not both robbery and conspiracy to commit robbery. If we then insert that definition into the operative provision of the statute, Subsection 9714(a)(1), it now tells us that:
Contra Bryan A. Garner, Garner's Modern English Usage 50 (4th ed. 2016) ("If you are offered coffee or tea, you may pick either (or, in this case, neither), or you may for whatever reason order both. This is the ordinary sense of the word, understood by everyone and universally accommodated by the simple or.").
I respectfully differ with the majority's rationale, however, to the extent that it downplays the significance of Section 9714(g)'s definition of "crime of violence" to the operation of Section 9714(a)(1), see Majority opinion, at 833–34, in which the phrase "crime of violence" is integral. See 42 Pa.C.S. § 9714(a)(1).
Any person who is convicted in any court of this Commonwealth of [robbery or conspiracy to commit robbery, but not both robbery and conspiracy to commit robbery] shall, if at the time of the commission of the current offense the person had previously been convicted of a crime of violence, be sentenced to a minimum sentence of at least ten years of total confinement[.]
42 Pa.C.S. § 9714(a)(1).
As shown above, the consequence of Griffin's one-but-not-both theory is that those who conspire to commit robberies (but do not follow through) and those who commit robberies (without conspiring) are subject to the second-strike enhancement, while defendants like Griffin, who commit and conspire to commit robbery, are not subject to the enhancement at all. In other words, Griffin's own interpretation is inconsistent with his concession that he is subject to three mandatory minimum sentences.
The flaw in Griffin's analysis, as the Majority implies, see Maj. Op at 833, is that he focuses exclusively on Subsection 9714(g)'s definition of "crime of violence" without considering how that definition fits into Subsection 9714(a)(1)'s overarching sentencing mandate. The Defender Association of Philadelphia makes the same error when it speculates that, if the General Assembly had wanted second-strike offenders to receive mandatory sentences for both the conspiracy and for the object of the conspiracy, then it would have appended the words "or both" after the phrase "or ... criminal conspiracy ... to commit ... any of the offenses listed above." See Brief for Amicus Defender Ass'n at 10-11. But that language would accomplish the opposite result. If the statute defined the term "crime of violence" to mean "robbery, conspiracy to commit robbery, or both ," then a person convicted of both robbery and conspiracy to commit robbery could be sentenced only for a single "crime of violence."
Perhaps Section 9714's structure, with its separate definitional provision, to some extent obscures the consequences that would result from Griffin's desired interpretation. But there are many sections throughout the Crimes Code that use the word "or" to distinguish between alternatives. For example, "[a] person commits a summary offense if he, being less than 21 years of age, attempts to purchase, purchases, consumes, possesses or knowingly and intentionally transports any liquor or malt or brewed beverages[.]" 18 Pa.C.S. § 6308 (emphasis added). Would anyone seriously argue that the General Assembly, in prohibiting the underage consumption or transportation of alcohol, intended to allow the underage consumption and transportation of alcohol? Alternatively, would anyone construe a ban on underage consumption of "liquor or malt or brewed beverages" to permit the consumption of cocktails so long as they contain both liquor and beer?That is not a one-off example either. A person commits the offense of "illegal dumping of methamphetamine waste" if "he intentionally, knowingly or recklessly deposits, stores or disposes" of materials used to manufacture of methamphetamine. 18 Pa.C.S. § 3313 (emphasis added). And an institution commits the offense of "institutional hazing" if it "intentionally, knowingly or recklessly promotes or facilitates" certain prohibited activities. 18 Pa.C.S. § 2805 (emphasis added). The upshot is that Griffin's definition of the word "or" would wreak havoc on these and many other provisions of the Crimes Code. (Surely, the General Assembly did not intend for those who deposit and dispose of meth-lab waste to escape criminal punishment.)
Put simply, Griffin's interpretation of Subsection 9714(g) is a grammatically dubious and logically inconsistent effort to circumvent this Court's decision in Fields . Today's Majority correctly rejects it.
CHIEF JUSTICE SAYLOR, Dissenting
I agree with Appellant's argument that "or" may reasonably be read in the disjunctive in the relevant regards within Section 9714(g)'s definition of the phrase "crime of violence." This can be apprehended most readily in Section 9714(g)'s apparently disjunctive references to equivalent crimes -- for example, under the statute, the denomination "crime of violence" applies to a series of completed substantive crimes such as murder of the third degree and voluntary manslaughter, "... or an equivalent crime in another jurisdiction." 42 Pa.C.S. § 9714(g) (emphasis added). In this example, it seems likely that the Legislature contemplated equivalent crimes as an alternative to account for violent criminal conduct occurring extra-jurisdictionally. Accord Brief for Amicus Defender Ass'n of Phila. at 12 (characterizing equivalent offenses as "substitutes/replacements for an enumerated substantive offense").
As to inchoate crimes, these are listed in the same series with completed substantive offenses and equivalent crimes, with the categories being separated by the word "or." 42 Pa.C.S. § 9714(g). Accordingly, a "crime of violence" is a completed, enumerated crime, "or" a related inchoate crime, "or" an equivalent offense. Id. Just as the Legislature may have contemplated equivalent crimes to account for violent conduct occurring in other jurisdictions, it may also have included inchoate crimes to recognize that not all offenses fall into the category of completed substantive crimes. Accord Brief for Amicus Defender Ass'n of Phila. at 12-13.
While I do not discount the majority's overarching approach as constituting a reasonable interpretation of the statute,1 from my point of view, the context creates sufficient ambiguity to warrant application of the rule of lenity. See , e.g. , Commonwealth v. Booth , 564 Pa. 228, 234, 766 A.2d 843, 846 (2001) ("[W]here ambiguity exists in the language of a penal statute, such language should be interpreted in the light most favorable to the accused."). Accordingly, I respectfully dissent.