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A baseball bat may be considered an instrument of crime under Pennsylvania law, the state Supreme Court has ruled, rejecting an argument that prosecutors must prove bats are “commonly” used for criminal purposes. Under the court’s ruling in Commonwealth v. Magliocco, a conviction for possession of an instrument of crime (PIC) was upheld against Eric J. Magliocco, who in 1999 threatened children in his Philadelphia neighborhood with a baseball bat while shouting racial epithets at them. Magliocco was arrested and charged with PIC, ethnic intimidation and terroristic threats, but was convicted only on the first two charges after a bench trial before Philadelphia Judge Joan A. Brown in February 2000. The Supreme Court’s decision turned on an interpretation of Section 907 of the Crimes Code in light of a legislative goof in the passage of an amendatory statute nearly a decade ago. Prior to 1995, Section 907 defined an instrument of crime, among other things, as an object “commonly used for criminal purposes.” In July 1995, the General Assembly amended Section 907 to remove the word “commonly” from that section of the definition. The measure was passed in response to the Supreme Court’s ruling that year in Commonwealth v. Ngow, in which the justices said prosecutors must establish a baseball bat’s common use as an instrument of crime in order to win a conviction under Section 907. The Legislature again amended Section 907 in July 1996 to criminalize the possession of body armor while committing or attempting to commit a felony. In the process, the Legislative Reference Bureau inadvertently printed the amendatory statute with the definition of an instrument of crime including the previously deleted “commonly” used requirement. The term “commonly” was neither italicized nor underscored, which would indicate new language added to the statute. Still, lawyers for Magliocco tried to convince the high court that this legislative mistake reintroduced the common-use requirement into the definition of an instrument of crime, thereby invalidating the defendant’s PIC conviction. Writing for the five-justice majority in Magliocco, Justice Ronald D. Castille said the rules of statutory construction compelled the court to conclude otherwise. The court must recognize the 1995 deletion of the term “commonly” from Section 907 as having been incorporated into the 1996 body armor amendment, Castille said. Citing Section 1954 of the Statutory Construction Act, Castille wrote: “Section 907(d) is to be read by including both the 1995 deletion of the word ‘commonly’ in the second definition and the 1996 additions of the provisions respecting body armor.” Furthermore, the term “commonly” could not have been reintroduced to the statute since the term was neither italicized nor underscored in the 1996 statute, the court said. Castille noted that 1 Pa. C.S. Section 1104(a) and Section 1951 of the Statutory Construction Act “prescribe a mandatory process for printing new language or deleting existing language from a statute, and provide instructions on how to give effect to such an amendment.” Being that the 1996 statute did not follow this process when it reinserted “commonly” back into Section 907, that particular change is a “legal nullity,” Castille wrote. “Under Section 1951 of the [Statutory Construction] Act, because the word ‘commonly’ does not appear italicized or underscored in the 1996 amendment, Section 907 cannot be read and interpreted as though the General Assembly intended to readopt a ‘commonly’ used requirement,” Castille wrote. Castille also rejected Magliocco’s due process challenge to the PIC conviction, premised on the erroneous printing of the 1996 statute. The court found no constitutional violation in how the successive amendments to Section 907 were interpreted, despite the erroneous printing. “There is no suggestion that this printing was intended to reflect the definitive, self-contained, current statement of Section 907 as it existed following the 1996 amendment,” Castille wrote. “Rather, [the 1996 statute] was explicitly designated as amendatory, purporting to highlight additions and deletions to Section 907 as it previously existed. Consultation with the pre-existing statute, thus, is presupposed, and it is no more difficult to find the prior version of the statute, and the rules of construction, than it is to find the amendment.” Magliocco, therefore, was not denied due process, as he would have been given instructions on reading the amendatory statute in the Session Laws of 1996 and could have consulted Section 907 as it existed before the 1996 amendment. Chief Justice Ralph J. Cappy joined Castille’s opinion but wrote separately to say this holding should not apply to “an erroneously printed criminal statutory enactment,” which “may implicate different legal concerns than those present in this appeal.” Justices J. Michael Eakin, Sandra Schultz Newman and Russell M. Nigro also joined Castille in the majority, while Justice Thomas G. Saylor wrote a concurring and dissenting opinion. (Former Justice William H. Lamb, who was on the court at the time of argument in Magliocco, did not participate in the decision.) Taking issue with the court’s disposition of the due process issue, Saylor said the majority’s “corrective construction” of Section 907 “is too remote from the statute’s prescribed terms to justify departure from those plain terms to support the imposition of criminal punishment.” ETHNIC INTIMIDATION In another holding, the justices upheld the Superior Court’s reversal of Magliocco’s ethnic intimidation conviction, finding that his acquittal on a charge of terroristic threats — a predicate offense to ethnic intimidation — precluded conviction on the contingent crime. The Superior Court found that ethnic intimidation is a contingent crime and is therefore dependent on a conviction of a certain predicate offense. Since Magliocco was acquitted on the charge of terroristic threats — the only predicate offense with which he was charged — the Superior Court found his ethnic intimidation conviction could not stand. Ruling on the commonwealth’s cross-appeal on this reversal, the Supreme Court said prosecutors do not necessarily need to charge a defendant with the predicate offense in order to pursue an ethnic intimidation charge. However, in this case, since the trial judge acquitted Magliocco on the predicate offense, the court said the ethnic intimidation charge could not be proved. “Given the special weight afforded acquittals,” Castille wrote, “since the factfinder in this case specifically found that Magliocco did not commit the offense of terroristic threats, the conviction for ethnic intimidation, which requires as an element the commission beyond a reasonable doubt of the underlying offense, simply cannot stand.” On this issue, Saylor also dissented, saying that, like the Superior Court, he thinks the ethnic intimidation statute “should be construed as requiring an actual conviction of the underlying offense as an essential element.” Karl Baker of the Defender Association of Philadelphia represented Magliocco, and Hugh J. Burns of the Philadelphia District Attorney’s Office handled the appeal for the commonwealth. Neither attorney could be immediately reached for comment.

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