# Commonwealth v. Reed

> Supreme Court of Pennsylvania · December 21, 2010 · 607 Pa. 629

URL: https://www.frixlaw.com/law-library/cases/9785201

## Case

- **Full name:** COMMONWEALTH of Pennsylvania, Appellant v. Richard J. REED, Appellee
- **Court:** Supreme Court of Pennsylvania
- **Decided:** December 21, 2010
- **Citations:** 607 Pa. 629; 9 A.3d 1138; 2010 Pa. LEXIS 2910
- **Precedential status:** Published
- **Opinion:** Concurrence by Saylor
- **Judges:** Baer, Castille, Eakin, McCAFFERY, Melvin, Orie, Saylor, Todd
- **Cited by:** 44 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9785201

## How later opinions describe it (automated extraction)

- holding that pursuant to statute, the grading of a conviction of unlawful contact with a minor for sentencing purposes is predicated upon the defendant’s conviction of an underlying offense and the defendant may - 14 - J-S28019-20 not be acquitted of the underlying offense upo…
- stating that “a defendant need not be successful in completing the purpose of his communication with a minor in order to be found guilty of” unlawful contact with a minor and that the defendant need not have even been charged with the underlying substantive offense
- clarifying that for purposes of section 6318(a)(1), a defendant need not be separately convicted of, or even charged with, the Chapter 31 offense for which he contacted the minor
- finding evidence insufficient to support higher grading of unlawful contact with minor where the jury found the defendant not guilty of the predicate offense for that grading
- holding a defendant “need not be separately charged - 11 - J-S35028-25 with a Chapter 31 offense” in order to be convicted of unlawfully contacting a minor for the purpose of engaging in a Chapter 31 offense

## Opinion text

Justice SAYLOR,
concurring.
I agree with the majority that the default grading provision should apply, but I have some differences with its reasoning.
In the absence of a jury finding regarding which prohibited activity the defendant intended to engage in for purposes of an unlawful contact with a minor conviction, application of anything other than the default grading provision raises constitutional concerns under Apprendi v. New Jersey, 530 U.S. 466, 490 , 120 S.Ct. 2348, 2362-63 , 147 L.Ed.2d 435 (2000) (holding, with limited exception, that judicial findings which result in punishment beyond statutory máximums must be submitted to a jury and proven beyond a reasonable doubt). 1 Further, this Court has determined that Apprendi challenges implicate sentencing illegality, and therefore, are non-waivable. See Commonwealth v. Aponte, 579 Pa. 246 , 250 n. 1, 855 A.2d 800 , 802 n. 1 (2004).
I realize Apprendi is not implicated directly by the present facts, since Appellee’s actual sentence fell below the five-year statutory maximum for a first-degree misdemeanor, 18 Pa.C.S. § 1104. See Apprendi, 530 U.S. at 490 , 120 S.Ct. at 2362-63 (“Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statu *646 tory maximum must be submitted to a jury----” (emphasis added)). Nevertheless, to assure constitutional compliance in all cases, and consistent with the policy of lenity, I support the majority’s decision that the best outcome in cases of inconsistent verdicts is to resort to default grading provisions where available. 2
My other concern goes to the amorphous scope of the special weight afforded to acquittals, as referenced by the majority. See Majority Opinion at 644, 9 A.3d at 1148. As I have previously discussed, such allocation — while clearly salutary — is in substantial tension with the courts’ allowance of inconsistent verdicts in the first instance. See Commonwealth v. Magliocco, 584 Pa. 244, 269 , 883 A.2d 479, 494 (2005) (Saylor, J., concurring and dissenting). Magliocco , and the special-weight policy, have altered this general rule for some cases, but substantial uncertainty remains concerning the boundaries of the special-weight jurisprudence. See, e.g., Commonwealth v. Miller, 607 Pa. 305 , 5 A.3d 814 (2010) (allowing appeal on the question: “Does an acquittal of the felony upon which a second-degree murder charge is predicated necessitate reversal of the jury’s second-degree murder conviction?”).
. There is a fifteen-year difference between the maximum term of incarceration generally available as between a first-degree felony and a first-degree misdemeanor. Compare 18 Pa.C.S. § 1103, with id. § 1104. Consequently, the distinction can be quite significant for Apprendi purposes.
. Parenthetically, in instances in which the Commonwealth does not charge underlying crimes, it may be incumbent upon it to secure special jury findings to support enhanced sentencing in compliance with Apprendi .

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9785201. Public record. Not legal advice.