Does a conviction under 18 Pa. C.S. § 2702(a)(1) require some use of physical force?

USA v. Harris, 2020 WL 7232898 (E.D. Pa. 2021) (unreported), Third Circuit Petition for Certification of Question of Law granted Feb. 14, 2022, appeal docket 5 EAP 2022

A federal grand jury indicted Marc Harris with one count of possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1) and the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e). The government argued that the ACCA applied as a result of Petitioner’s five prior felony convictions, including Harris’s conviction for first degree aggravated assault under 18 Pa. C.S. § 2702(a)(1). Harris entered a guilty plea, and pursuant to a plea agreement, Harris was sentenced to 180 months imprisonment, at the bottom of the guideline range for an armed career criminal.

Thereafter, Harris filed a motion pursuant to 28 U.S.C. § 2255, seeking relief pursuant to the United States Supreme Court’s decision in Johnson v. United States, 135 S. Ct. 2551 (2015).  A previous adult conviction qualifies as a “violent felony” under the ACCA when it is punishable by imprisonment for more than one year and “(i) has as an element the use, attempted use, or threatened use of physical force against the person of another [force clause]; (ii) is burglary, arson, or extortion, involves use of explosives [enumerated offenses]” or “otherwise involves conduct that presents a serious potential risk of physical injury to another [residual clause].” 18 U.S.C. § 924(e)(2)(B). The Supreme Court in Johnson found the “residual clause” unconstitutionally vague; accordingly, that clause no longer serves as a legal basis for a finding that Petitioner has been convicted of a violent felony. 135 S.Ct. at 2557. Rather, under Johnson, to qualify as violent felonies under the ACCA, prior convictions must either fall within the “force” clause, or constitute an “enumerated offense.” In this circumstance, a modified categorical approach applies, in which the court must determine whether a conviction under the specific subsection of the status categorically qualifies as a violent felony.  Harris argued that as a result of the Court’s holding in Johnson, his prior convictions for aggravated assault no longer qualifies as a predicate offense under the ACCA. The district court denied Harris’s motion, and Harris appealed to the Third Circuit.

The Third Circuit then petitioned the Pennsylvania Supreme Court for Certification of Question of Law, which the Supreme Court granted, to consider the following issue:

Whether the Pennsylvania First-Degree Aggravated Assault provision, codified at 18 Pa. Cons. Stat. § 2702(a)(1), requires some use of physical force, as the Government contends, or, instead, as the Pennsylvania Superior Court said in Commonwealth v. Thomas, 867 A.2d 594, 597 (Pa. Super. Ct. 2005), the statute means that “the use of force or threat of force is not an element of the crime ….”


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