Is conviction of Chapter 31 sexual offenses a necessary element of Corruption of Minors-Felony?

Commonwealth v. Baker-Myers, 210 A.3d 1093 (Pa. Super. 2019) (en banc), allocatur granted Nov. 26, 2019, appeal docket 54 WAP 2019

After police charged James Duane Baker-Myers with Rape, Sexual Assault, Aggravated Indecent Assault, Indecent Assault (collectively, the Sexual Offenses) and Corruption of Minors graded as a third degree felony (COM-Felony) arising from a 17-year-old victim’s allegation that Baker-Myers sexually assaulted her, a jury found him not guilty of the Sexual Offenses but convicted him for (COM-Felony). Baker-Myers appealed his sentencing of imprisonment, probation, and classifying him as a Tier I sexual offender based on the argument that the jury’s guilty verdict of COM-Felony was not supported by sufficient evidence because COM-Felony requires the jury to convict him of at least one of the Chapter 31 sexual offenses he was charged with, and since the jury found him not guilty of the Chapter 31 Sexual Offenses, the evidence was insufficient to convict him of Com-Felony.

In a 5-4 en banc decision the Superior Court agreed, vacated Baker-Myers’ COM-Felony conviction and remanded for re-sentencing. The majority reasoned that:

Analogously, in the instant case, the Commonwealth charged and prosecuted Appellant for COM-Felony and the Sexual Offenses, but failed to obtain a conviction on any of the Sexual Offenses. By acquitting Appellant of the Chapter 31 Sexual Offenses, the jury found that the Commonwealth had failed to establish beyond a reasonable doubt that Appellant acted “in violation of Chapter 31.” Thus, because the jury found that Appellant had not acted “in violation of Chapter 31,” an essential element of COM-Felony, the Commonwealth was unable to establish every element of COM-Felony. See [Commonwealth v.] Magliocco, [883 A.2d 479 (Pa. 2005)] supra at 493 (reiterating that to “secure a conviction for any crime, the Commonwealth must prove all necessary elements beyond a reasonable doubt.”); see also [Commonwealth v.] Miller, 172 A.3d [632,] 640 [(Pa. Super. 2017)]. Accordingly, we vacate Appellant’s COM-Felony conviction.

Slip Op. at 5.

The dissenting opinion, authored by Judge Stabile, found that a review of Commonwealth v. Magliocco, post-Magliocco decisions that restrict its applicability, and Commonwealth v. Anderson, 550 A.2d 807 (Pa. Super. 1988) (en banc) demonstrates that the COM-Felony conviction is not ruled out because the jury acquitted Baker-Myers for the Sexual Offenses. The dissent highlighted that the COM-Felony count was not based on the Sexual Offenses but on a “course of conduct related to sexual offenses.” Dissent Slip Op. at 3. The dissent found: (1) Magliocco is not the controlling case because the “statute at issue in that case had materially different language than the COM statute’s ‘course of conduct’ element,” Dissent Slip Op. at 4; (2) post-Magliocco decisions, such as Commonwealth v. Miller, 35 A.3d 1206 (Pa. 2012) and Commonwealth v. Moore, 103 A.3d 1240 (Pa. 2014), that “quarantine its reach” were disregarded by the majority and demonstrate that Magliocco is not controlling because the operative language in the COM statute is different from the operative language in the statute at issue in Magliocco, Dissent Slip Op. at 4, 12-13; and (3) the majority failed to follow its own analysis of the COM statute in Anderson, which provides the conclusion that “the COM statute does not require proof that Appellant committed predicate crimes; it only requires proof of acts that constitute a ‘course of conduct,’ a critical distinction from” Magliocco. Dissent Slip Op. at 14-15. Therefore, the dissent concluded:

[T]he information did not allege commission of the crimes of [the Sexual Offenses] as the basis for the COM charge. Rather, the information based on the COM charge on a course of conduct culminating in sexual intercourse with the victim, and the Commonwealth presented evidence of this course of conduct during trial. Thus, like the defendant’s argument in Anderson, Appellant’s challenge to sufficiency of the evidence in this case falls flat.

Dissent Slip Op. at 15.

The Supreme Court granted allocatur to consider:

(1) Whether the Superior Court of Pennsylvania, citing the case of Commonwealth v. Magliocco, 883 A.2d 479 (Pa. 2005), properly held the language “in violation of Chapter 31” is an essential element necessary for a conviction of Corruption of Minors as a felony of the third degree[.]

(2) Whether the evidence was sufficient for a conviction of Corruption of Minors as a felony of the third degree despite the jury’s acquittal of Rape, Sexual Assault, Aggravated Indecent Assault and Indecent Assault[.]

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