JOSEPH MISTICK – CRIMINAL LAW – SPRING 2023

Elements of Crimes
1. Actus Reus – voluntary act (or culpable omission)
2. Mens Rea – a culpable mental state (exception = strict liability crimes)
3. Harm – a result
4. Causation – the harm must flow from the defendant’s actions.

Six steps to a crime:

1. You must conceive the crime
2. You must evaluate the idea of the crime – Mens rea
3. Full formulation of the intention to proceed – Mens rea
4. Preparation to commit the crime – Actus Reus
5. Commencement of commission of the crime – Actus Reus
6. Achievement of the criminal goal – Actus Reus

Nature of Criminal Statutes and Their Interpretation

- common elements – actus reus, mens rea, results, causation.
- actus reus – unless omission is culpable
- mens rea – present unless strict liability – SL terms within statutes are somewhere common.
- results are always spelled out in the statute; the causation requirement is rarely expressly described.
- where did the language come from? Is it borrowed from the MPC? Is it used anywhere else
that can help us understand the legislature’s meaning?
- what policy is advanced by the possible interpretations of the statute?

Actus Reus
 Element: Voluntary Act
 Culpable Omission (left scene of crime without reporting it – if you have a duty to act and you don’t
act).
 Either the act or the failure to act will be defined in the statute.
 Absent limited exceptions, a person is not guilty of a crime unless his conduct includes a voluntary act.
 An “act” is simply a bodily movement – a muscular contraction (e.g., pulling a trigger to a gun,
contracting vocal chords to speak, blinding an eye, etc.)
  An act is voluntary “if a human being—not simply an organ of a human being—causes the voluntary
movement (e.g., a heart beating is not a voluntary bodily movement).
 Habitual acts are generally considered voluntary acts (e.g., a driver changing lanes without thinking is
voluntary).
 The act does not make a person guilty unless the mind is also guilty.
 When the act + the intent come together, it is causation for the crime.
 We DO NOT punish for thoughts alone; Actus Reus must be present.
 Strangulation could look like there was actus reus b/c it could likely take 5-6 minutes and become
voluntary.
 Sudden death might be missing actus reus because it happens so quickly it could be an involuntary act.
 Time Framing Issues (People v. Decina) (car accident, getting in a car, knowing you get seizures in the
voluntary act)
 Voluntary act doesn’t have to happen at the same time.

Omission:
 Failure to act
 4 circumstances where you would have a duty to act:
1. breach of a legal duty when the statute imposes a duty.
2. breach of a duty when there is a status relationship at law.
3. Duty when there’s a contractual duty to care for another.
4. If you voluntarily assume the care of another, then you seclude that person to prevent others from
rendering aid.

MCP Requirements – The Model Penal Code requires that an actor engages in “an act or omission which, under
the circumstances as he believes them to be, is an act or omission constituting a substantial step in a course of
conduct planned to culminate in his commission of the crime.

Examples:
 Possessing

Strict Liability:
Actus Reus CAN be punished w/o Mens Rea for strict liability crimes.

Cases:
State v. Martin – A police officer arrested the D at his home and took him onto a public highway; D was
convicted thereafter for being drunk on a public highway.
1. This is an improper conviction b/c a person must commit the crime charged on his own accord. Not a
voluntary act because he was drunk inside his house and the police took him out of the house.
2. RULE: you must have a voluntary act to achieve actus reus.
People v. Gastello – D was arrested and taken to jail for possibly riding his bike intoxicated. Warns him that he’s
not allowed to bring drugs into the jail. He had drugs on him when he went into the jail.
1. Statute (MCP) – “Except when otherwise authorized...any person who...knowingly brings or sends into...or
knowingly assists in bringing into...or sending into...any state prison...or into any county...jail...any controlled
substance...is guilty of a felony...”
2. Defense – He said he had the drugs on him when they brought him into the jail. He was involuntarily brought
into the jail, so he didn’t voluntarily bring them in. The statute did not state that he had to admit to having the
drugs on him. That would have been a crime of culpable omission, but this statute is about bringing.
3. No actus reus found, because he did not commit the act of bringing. Bring = Actus Reus.
People v. Low – D was arrested and brought drugs into the jail. D was told if you bring drugs in and D was
presented with the choice to get rid of them prior entering the jail. Same statute of Castello.
1. RULE – The moment where D had the opportunity to confess that he had drugs prior to entering the jail, was a
voluntary choice to go in the jail with the drugs. He voluntarily brought the drugs into the jail. The crime is
voluntarily bringing.
Mens Rea
  The element of a crime that requires the defendant know the facts that make his conduct illegal.
 The existence of a mens rea requirement is the rule of, rather than the exception to, the principles of
Anglo-American criminal jurisprudence.
 Statutory silence is typically insufficient to dispense with mens rea. (limited circumstances)

MCP – Four Basic Types of Crimes which require fault:

1. Intentionally, purposefully – to do the forbidden act (omission) or cause the forbidden result.
2. Knowingly – of the nature of the act (omission) or of the result which will follow therefrom or of the attendant
circumstances.
3. Recklessly – in doing the act (omission) or causing the result (subjective fault in that the actor must in his own
mind realize the risk which his conduct involves).
4. Negligence – in so doing or causing (objective fault in creating an unreasonable risk; but, since the actor need
not realize the risk in order to be negligent, no subjective fault is required).
- Contains: (1) an expression of the required degree of risk which the defendant’s conduct must create, and (2) an
expression that that conduct is to be judged by an objective (reasonable man) standard.

Strict Liability (when mens rea isn’t included):

 Unaccompanied by fault – a statute may provide that whoever does (or omits to do) so-and-so, or
whoever brings about such-and-such a result, is guilty of a crime, setting forth the punishment.
 Defendant says this was an accident and can prove it, that that’s of no consequence.
 If a crime doesn’t require the person to have a culpable mental state, that is, if the statute doesn’t require
the person to act intentionally, knowingly, recklessly, or negligently.
 Then statute says – we don’t care how you came to do this thing, if you do it, you are guilty of a crime.
 Statutes that dispense with mens rea and do not require the defendant to know the facts that make
conduct illegal.
 Legislatures left out the mens rea term. Court then presumes there is mens rea. Court will look at what
the statute is regulating (public welfare offense).

Statutory Interpretation:
Sometimes described (poorly) as an intent element. Intent is a particular type of mens rea, meaning desire
to commit a crime. The desire to commit a crime is not always required. IF you are aware that you will be
doing, or reckless, depending on the statute that can be sufficient to violate a crime.
SL (strict liability) crimes do not require mens rea. “did the legislature truly intend to leave out the term or
was the omission simply the legislature left for the court to fill in.”
1. If the statute is ambiguous, read it TEN TIMES as it is written, then read it ten times removing all punctuation,
then read it ten times again as it is written.
2. Second, it is important to check the legislative history
3. Third, check a legal dictionary and then a regular dictionary
Ambiguous Mental States
 Willfully, maliciously, wanton, corrupt, unlawfully, feloniously.
 Negligently, carelessly, having reason to know – some statutes use words or phrases indicating a
requirement of fault, but necessarily mental fault.
 Some crimes require a subjective fault – actually a bad mind of some sort. ex. “knowing the property to
be stolen.”
 Other crimes require only objective fault – fault which is not a matter of the mind. ex. “having reason to
know the property to be stolen.”
 Other crimes require no fault at all – either subjective (mental) or objective (non-mental) – liability
without fault. ex. “whoever receives stolen property” – at least guilty when he receives property which is
actually stolen, even if he does not know, and reasonably does not know.
 MCP states any of the subjective mental states will suffice.

Cases:
State v. Ndikum – Lawyer accidentally brought his brief case into the courthouse with a gun inside. His wife put
the gun in his brief case and did not tell him.
1. Strict Liability offense (statute didn’t include mens rea element)
2. Court found that was enough for a criminal conviction.
 Takeaway rule: 2 principal factors that lead a court to conclude that a legislature intended to omit
a mens rea term are a light sentence and large societal impact of the crime, i.e., that this is a public welfare
offense.
o Analysis
 When legislature leaves out a mens rea term in statute—such as knowledge, intent,
recklessness.
o Step 1. Although there’s no mens rea term in statute, a court will assume the
legislature meant to require mens rea b/c we are hard wired to believe that the defendant
must have a culpable mental state to commit a crime.
o Step 2. Sometimes a legislatures absence of a term for mens rea, could mean the
legislature actually meant to not have a mens rea requirement; courts consider the
following things:
 How hard is it punishing the violation?
 Harsh penalty?- Felony or something that imposes more than
1 yr in a jail or several years in a jail, we assume something of this
nature requires mens rea
 Light penalty ?--Misdemeanor as it was in this case, the courts
will also consider element #2.
 What is it that the statute is regulating?
 Was it a public welfare offense--something that would cause a
great deal of harm to a lot of people from a little bit of conduct? (e.g.,
pollution)
o If yes, if the legislature leaves mens rea out, they likely
meant to do that, therefore mens rea is not required for
conviction.

Queen v. Dudley and Stephens – Men were on a boat, with no food or water. The men decided to kill the boy on
the boat to keep themselves alive. Men were found guilty of felony murder. Court said there is no necessity to kill
anyone.

Defenses:
 No excuses/room for mistake. Court does not care how reasonable your behavior was.
 Mistake of Fact – can be a defense if it negates the mens rea requirement
 Mistake of Law – generally, ignorance of the law is no excuse, unless it negates the existence of a
mental state required. Exceptions:
Harm and Causation
 When a harmful result is required as an element of a crime, the harmful result must have been caused by
the defendant’s conduct.
 Result = crimes where there has to be a certain result (i.e., death) and you have to have caused it.
 Causation = If there is a required result there has to be causation. Result has to come from the
defendant’s action.
 Result is almost always spelled out in statute, but causation is not.
 Actual Cause (cause-in-fact): D’s actions are the “but for” cause of the crime.
 Legal/Proximate Cause: D’s actions are sufficiently direct to cause liability.
 Concurrent Cause: Events that occur simultaneously that would not alone have brought about the result.
o E.g. either of the shooter’s bullets would have killed her.
 Intervening Cause: Interrupts the normal flow of events between the wrong and the injury but does not
necessarily cut off liability.
 Superseding Intervening Cause: Unforeseeable cause that severs causal link of liability.
o E.g. human shoots you on your way to the doctor to get treatment.
 Acceleration Theory: If the defendant's action caused a victim to die sooner than the victim would have
 otherwise died, then the defendant is guilty.
o E.g. if "X" fatally poisons "Y," but "Z" shoots and kills "Y," under acceleration theory, Z is
convicted, rather than "X."
 *Sometimes you have to look at the victim’s behavior to determine if their antics/actions break causal
nexus*
Cases:
State v. Rose – V was struck by a car and rolled up under the car and was drug for 600 ft under the car.
1. Court looked at the initial strike, if V died on impact, then the court saying this was merely an accident.
2. Prosecution presented insufficient evidence that Rose was criminally liable for not stopping.
3. Reckless act to keep driving, which is what D did.
4. Insufficient evidence of the time of death, so could not prove beyond a reasonable doubt that the defendant’s
reckless act caused the harm (victim’s death). This case shows the strictness of showing harm. Must show beyond
a reasonable doubt.

Punishment Theories
 Retribution – clearly supports punishment of an actor whose offending conduct does not reach fruition:
an actor who comes sufficiently close to success has, by his acts and thoughts, demonstrated that he
deserves to be punished. an express of society’s anger at: the doer of wicked acts or the harm done.
 Rehabilitation – an actor can be rehabilitated even if he has not actually succeeded in bringing about
any social harm. teach the offender to reform his ways or provide him space to reform himself.
 Incapacitation – actor is dangerously in need of incapacitation whether or not he has actually
succeeded. separating this actor from the public least he commits this act or similar acts again.
 Deterrence – “at most a minor function.” discourage this actor or other actors from committing this act.
Homicide
 To prove homicide, the prosecution must demonstrate that the defendant:
1. Engaged in conduct (or failed to perform (engage in) an act he had a legal duty to perform).
2. With a culpable state of mind; that
1. Intentionally;
2. Knowingly;
3. Recklessly; or
4. Negligently
3. Caused a death.
Result = death
Causation = defendant’s action
 The type of mens rea will determine the type of punishment

§2501(a): Criminal Homicide-Offense Defined

(a) A person is guilty of criminal homicide if he intentionally, knowingly, recklessly, or negligently causes
the death of another human being.

§2501(b): Criminal Homicide-Classification

- Criminal homicide shall be classified as murder, voluntary manslaughter, or involuntary manslaughter.

Defenses
- § 308: Intoxication or Drugged Condition – Neither voluntary intoxication nor voluntary drugged
condition is a defense to a criminal charge, nor may evidence of such conditions be introduced to
negative the element of intent of the offense, except that evidence of such intoxication or drugged
condition of the defendant may be offered by the defendant whenever it is relevant to reduce murder
from a higher degree to a lower degree of murder.
- Case: Com. v. Marshall – D was high on cocaine and murdered his wife. Rule – 1. require a sufficiency
of the evidence, determine if there is sufficient evidence to enable the jury to find every element of the
crime beyond a reasonable doubt. Court finds sufficient evidence. 2. In order to be entitled to a charge of
voluntary intoxication, there must be evidence in the case sufficient to place D’s mental condition on
issue. 3. Evidence must show that D was so “overwhelmed or overpowered by drugs to the point of
 losing his faculties or sensibilities” at the time crime was committed.
First Degree Murder
Actus Reus = the killing
Mens Reus = intent, desire to kill
- also depends on the mental state of the defendant when he killed
Harm/Causation = killing, a dead body
 PA – looking to see evidence that there was premediated intentional killing.
 a killing resulting from a contemplated desire to kill constitutes the most egregious form of
murder
 Malice Aforethought
 Must be willful, deliberate, and pre-meditated

Carries a life/death sentence

§2502(a): Murder of the First Degree

(a) Murder of the first degree – A criminal homicide constitutes murder of the first degree when it is
committed by an intentional killing.

§ 2502(a) – The PA Supreme Court has discussed the elements of first-degree murder as follows:
- To convict a defendant of first-degree murder, the Commonwealth must prove: [(1)] a human being was
unlawfully killed; [(2)] the defendant was responsible for the killing; and [(3)] the defendant acted with
malice and a specific intent to kill.
- 18 Pa.C.S. § 2502(d) – a killing is intentional if it’s done in a “willful, deliberate and premeditated
fashion.”
- The deliberation and premeditation needed to establish intent exist whenever the assailant possesses the
conscious purpose to bring about death.
- The Commonwealth may use circumstantial evidence to establish the elements of first-degree murder,
including the element of intent.

§ 2502(d): Definitions – Intentional Killing

(a) Definitions: Intentional Killing – Killing by means of poison, or lying-in wait, or by any other kind of
willful, deliberate, or premeditated killing.

First-Degree Murder - Elliot Factors:

- These are guidance in demonstrating first degree murder:
(1) motive
(2) planning
(3) method
Notes:
 If a murder occurs and you don’t have the factors, but the murder included harming a vital organ can be
a factor for homicide.
 D kills V in vital organ (heart) - 1st degree murder occurs if the court finds that the use of a deadly
weapon as point blank range demonstrates that in the instant before killing, the D made the conscious
decision to kill.

Cases:
Com. v. Fitzpatrick – Chanceford Township wife’s body found by Muddy Creek. Police found emails from D
that he was cheating and wanted his wife gone.
(1) Motive: Non-sexual Affair and Life Insurance Policy
(2) Planning: Google searching polygraph and restraints on life insurance policy
(3) Method: drowning – court says strangulation is itself sufficient.
RULE – To convict a defendant of 1st degree murder the Commonwealth must prove: (1) a human being was
unlawfully killed; (2) the defendant was responsible for the killing; and (3) the defendant acted with malice and a
specific intent to kill. When there is no direct evidence of intent to kill, the factfinder may glean the necessary
intent from the act itself and from all surrounding circumstances. Specific intent to kill can be proven where the
defendant knowingly applies deadly force to the person of another. Death caused by strangulation is sufficient to
infer the specific intent required for a conviction of first-degree murder.
People v. Elliot – Defining a Premeditated Killing
Generally, there are three categories of evidence that are sufficient to sustain a premeditated and deliberated
murder: evidence of planning, motive, and method. When evidence of all three categories is not present, we
require either very strong evidence of planning, or some evidence of motive in conjunction with planning or a
deliberate manner of killing. But these categories of evidence are description, not normative. They are simply an
aid for reviewing courts in assessing whether the evidence is supportive of an inference that the killing was the
result of preexisting reflection and weighing of consideration rather than mere unconsidered or rash impulse.
Com. v. Houser – D failed to show for a rape trial. Police raid D’s house. D shot at polices.
(1) Motive: Letter – can’t go a long jail sentence, they won’t take me alive
(2) Method: Shots to vital parts of body – abdomen and then after officer is down to forehead.
No evidence that he decided to kill these officers. The letter doesn’t state that he desires to kill a police officer.
The letter is evidence that he was willing to engage in a gun battle, and officer was shot point blank range, while
wearing identifying clothing. Court says the fact that officer was shot at in a vital organ shows a willingness to
kill. Some courts say that mere use of a deadly weapon on a vital part of another’s body, is enough to show an
intent to kill. D also shot the officer a second time (also showing intent).
RULE: premeditation or the intent to kill can be formed instantly in a very short amount of time.
Com. v. Wright– V gets into a fight with D in a bar. D takes V outside and repeatedly punched and knocked her
head against a building. D said, “I’m going to kill you,” then ran across street and stabbed V in the abdomen. The
explicit threat and use of a knife on a vital part of the victim’s body, could properly infer such an intent to kill
existed. The court doesn’t look at the method. There is no preparation and happens in the heat of the moment.
This case shows whether there was deliberation. Here it was formed quicker and in a short period of time.

Defenses:
 Voluntary intoxication is a defense that can negate the specific intent to kill and reduce the crime of
murder from 1st to 3rd degree.
 Voluntary intoxication is a defense only if the defendant is so drunk that his faculties or sensibilities
have been overwhelmed or overpowered. It is NOT enough that you are not thinking straight.
Second Degree Murder – (felony murder)

 If someone dies while in the commission of a felony, regardless of where they’re at, they’re guilty of
second-degree murder if they played a role. (principal or accomplice)
 If the intent to commit the felony occurs after the killing, it is not 2nd degree murder.
 Felony murder doesn’t require a mens rea?
 Felonies: robbery, force, arson, burglary, kidnapping, or rape, or deviate sexual intercourse by force or
threat of.

§ 2502(b): Murder of the Second Degree – A criminal homicide constitutes murder of the second degree when
it is committed while the defendant was engaged as a principal or an accomplice in the perpetration of a felony.
**must read on to the definitions of felony underneath**
§ 2502(d): Definitions – Perpetration of a Felony
- The act of the defendant engaging in or being an accomplice in the commission of, or an attempt to
commit, or flight after committing, or attempting to commit robbery, rape, or deviate sexual intercourse
by force or threat of force, arson, burglary, or kidnapping.

- To be convicted of second-degree murder, the commonwealth must prove that the defendant committed
a murder “while she was engaged in a perpetration of a felony.” §2502(b).
- By statutory definition, the jury simply must conclude that a criminal homicide was committed while the
defendant participated in a completed or an attempted delineated, e.g., predicate, offense.
o it is not essential for the jury to find that the predicate offense was actually completed.
- To the extent that felony murder does not require the commission, i.e., completion, of the predicate
offense, an acquittal of the predicate offense will not always mean that the homicide did not occur in the
 perpetration of a felony. That is, the homicide could have occurred during the course of, or after, an
unsuccessful attempt to commit the predicate offense. Thus, it would be possible for a felony murder to
occur even though the predicate offense was not ‘committed.’
o In other words, second-degree murder does not require, as an element of the crime, the
completion of the predicate offense.
- PA adopts the “agency theory” – belongs to all the people acting within the agency relationship.

Cases:
Com. v. Mitchell – D and a friend attempted to rob the pizza delivery guy, and the friend shot the victim, who
bled to death. D found guilty of murder as an accomplice to a robbery.
RULE – everyone is guilty of murder, even if they didn’t pull the trigger.
Com. v. Spallone – D and friends were drinking and hanging. D and V got into a fight. V threw beer bottle at D
then attacked D with a knife. D grabbed a pair of scissors and stabbed V 37 times, killing him. D ran back in after
the killing and stole his wallet. Jury found that D had no intent to commit a felony at the time of the killing.
RULE – The purpose of the rule (felony murder) is to deter one about to commit a felony in which a reasonable
man knows, or should know, that death may result, by making him criminally responsible for any such deaths.
Com. v. Miller – D brutally murdered a man and stole his car. D was acquitted of the felony robbery charge.
RULE – court doesn’t believe that we should second guess the jury’s discussion. This court says that a felony
murder does not require a conviction of the predicate offense. The statute only requires that the murder occurred
while the defendant participated in a completed or attempted delineated predicate offense. Court’s decision was
driven by statutory interpretation.

Third Degree Murder – (the default murder in pa/murder of all other kinds)

 Actual Malice is inferred from a reckless disregard. (standard)

 When a jury can’t decide where a murder fits, it often falls here.
 Recklessness standard for 3rd degree murder different than involuntary manslaughter
 Jury must decide (to determine the difference between 3rd degree and invol. man.) whether a person
disregarded a substantial and justifiable risk that a person wouldn’t do unless grossly deviated from
ordinary social norms or whether the person had a degree of recklessness that was an extreme
indifference for value of human life. (3rd degree)
 A person acts recklessly when they consciously disregard a substantial and unjustifiable risk. The risk
must be of such a nature and degree that, considering the nature and the intent of the actor’s conduct and
circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a
reasonable person would observe in the actor’s situation.
 Although driving under the influence does not typically rise to the level of recklessness necessary for 3 rd
degree murder conviction, PA Supreme Court has found that a D driving under the influence when the D
has a condition that they know makes it unsafe for them to drive is a conscious disregard to a substantial
and unjustifiable risk.

§ 2502(c): Murder of the Third Degree

(a) Murder of the third degree – all other kinds of murder shall be murder of the third degree.

Cases:
Com. v. Thomas – D and V were drinking, and V had a chronic stiff neck. D punched V in the face and V fell to
the ground, hitting his head and knocked him unconscious. V died of a brain hemorrhage a week later.
RULE – Malice comprehends not only a particular ill-will, but every case where there is wickedness or
disposition, hardness of heart, cruelty, recklessness of consequences, and a mind regardless of social duty,
although a particular person may not be intended to be injured. Murder, therefore, at common law embraces cases
where no intent to kill existed, but where the state of frame of mind termed malice, in its legal sense, prevailed.
Com. v. Young – D shot V through the bus window and killed him.
RULE – Malice may be found to exist not only in an intentional killing, but also in an unintentional homicide
where the perpetrator consciously disregarded an unjustified and extremely high risk that his actions might cause
death or serious bodily harm.
Com. v. Packer - V was killed in an automobile accident caused by Packer who inhaled or huffed difluoroethane
(DFE) immediately before and while operating her vehicle. Packer has a history of losing consciousness after
huffing DFE.
RULE - The standard for malice today requires recklessness of consequences and the conscious disregard for an
unjustified and extremely high risk that a chosen course of conduct might cause a death or serious personal
injury.

Quizzes:
 Comparing PA’s 3rd degree murder statute to the MPC: MPC identifies a variety of reckless killing that
should be punished the same as premeditated killing while PA’s 3rd degree murder statute regards even
the most aggravated form of reckless murder as less serious than an intentional killing.

Involuntary Manslaughter – Similar to third degree murder

 Involves a killing in which death follows from an unreasonable risk taken by the defendant.
 Look at circumstances surrounding the defendant’s act to determine whether he intended the death, was
very reckless in the risk he took with another’s life or was simply reckless.
 Recklessness standard for involuntary manslaughter is different than 3rd degree murder
 Recklessness to the possibility of serious bodily injury
 Jury must decide (to determine the difference between 3rd degree and invol. man.) whether a person
disregarded a substantial and justifiable risk that a person wouldn’t do unless grossly deviated from
ordinary social norms or whether the person had a degree of recklessness that was a disregard for value
of human life.
 A person acts negligently when they should be aware of a substantial risk. The persons conduct does not
rise to recklessness or an extreme indifference to human life. Person does not consciously disregard a
substantial risk.
 Under PA law, choosing to drink and drive is usually treated as criminal negligence. A person acts
negligently when they drive drunk and kill another person b/c they should have been aware that they
were creating a substantial risk when choosing to drink and drive.

§ 2504(a): Involuntary Manslaughter

(a) General Rule – A person is guilty of involuntary manslaughter when as a direct result of doing an
unlawful act in a reckless or grossly negligent manner or doing of a lawful act in reckless or grossly
negligent manner, he causes the death of another person.

§ 302(b)(3): Kinds of Culpability Defined-Reckless

(b) Kinds of culpability defined –
(1) A person acts recklessly with respect to a material element of an offence when he consciously disregards
a substantial and unjustifiable risk that the material element exists or will result from his conduct. The
risk must be of such a nature and degree that, considering the nature and intent of the actor’s conduct
and the circumstances known to him, its disregard involves a gross deviation from the standard of
conduct that a reasonable person would observe in the actor’s situation.

§ 302(b)(4): Kinds of Culpability Defined – Negligent

(b) Kinds of culpability defined –
(4) A person acts negligently with respect to a material element of an offense when he should be aware
of a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk
must be of such a nature and degree that the actor’s failure to perceive it, considering the nature and intent of his
conduct and the circumstances known to him, involves a gross deviation from the standard of care that a
reasonable person would observe in the actor’s situation.

Cases:
Com. v. Fabian – D was a van driver for kids, and was using a backup van, noticed the van was acting weird. D
informed the company, drove it and crashed, killing multiple people.
RULE – A person commits a misdemeanor of the second degree if he recklessly engages in conduct which places
or may place another in the danger of death or serious bodily injury. The mens rea for the crime of recklessly
endangering another person is a conscious disregard of a known rick of death or great bodily injury to another
person.
Jury could reasonably conclude that D knew the van would be used to transport passengers so D acted with mens
rea.

Voluntary Manslaughter

Sudden and intense passion

Provocation by the victim
Provocation by another

 Killing in the heat of passion

 Occurs when someone intends to take a life but was provoked by something that would provoke a
person of a reasonable sensibility. ex. stabbing during a fight.
 Seeing your spouse in bed with someone else is adequate provocation in PA, to establish voluntary
manslaughter. No adequate time to cool. Important Caveat: many jurisdictions have expressly rejected
the idea that spousal infidelity can establish reasonable provocation as an antiquated notion of a man’s
right to protect his dominance over his spouse.
 To have reasonable provocation, the acts to another person must be serious injury to someone who is
dear or near.

§ 2503(a): Voluntary Manslaughter – General Rule

(a) A person who kills an individual without lawful justification commits voluntary manslaughter if at the
time of the killing he is acting under a sudden and intense passion resulting from serious provocation
from (1) the individual killed; or (2) another whom the individual endeavors to kill, but he negligently or
accidentally causes the death of the individual killed.

Com. v. Berry – Neighbors got into fight. D (son) found out and went to neighbor’s house and fatally wounded
victim.
1. Rule – Voluntary manslaughter must be a sufficient or reasonable provocation. Manslaughter is never attended
by legal malice or depravity of heart – that condition or frame of mind before spoken of, exhibiting wickedness of
disposition, recklessness of consequence or cruelty. There must be sufficient cause of provocation, and a state of
rage or passion, without time to cool, placing the prisoner beyond the control of his reason, and suddenly
impelling him to the deed. “Sufficient provocation” – the test for adequate provocation – whether a reasonable
man, confronted with this series of events, became impassioned to the extent this his mind was ‘incapable of cool
reflection.’
2. Court found that there was sufficient provocation for a reasonable man to become so impassioned as to cloud
his reason and render him incapable of cool reflection.

Com. v. Ragan – victims brother got into a fight. Victim left the scene and came back later and encountered D.
D’s friends came back and attacked victim’s brother, victim came to aid brother and D pulled a gun on victim and
killed him.
Rule – A person guilty of heat of passion voluntary manslaughter if at the time of the killing he acted under a
sudden and intense passion resulting from serious provocation by the victim.

Unreasonable Belief Killing Justifiable (Imperfect Self Defense)

§ 2503(b): Unreasonable Belief Killing Justifiable
(a) A person who intentionally or knowingly kills an individual commits voluntary manslaughter if at the
time of the killing he believes the circumstances to be such that, if they existed, would justify the killing
under Chapter 5 of this title, but his belief is unreasonable.

§ 505(a): Use of Force in Self Protection – The use of force upon or toward another person is justifiable when
the actor believes that such force is immediately necessary for the purpose of protecting himself against the use of
unlawful force by such other person on the present occasion.

 Ex. Boy’s father becomes violent and angry when drinking. FA is intoxicated one night and attacks and
threatens sibling w/ fly swatter. Boy suffers from mental disability and has poor vision. Boy has mental
episode and thinks FA has a butcher knife and going to harm sibling. Boy stabs FA in the chest and Fa
bleeds to death. Boy is NOT guilty of 1st degree murder if the jurisdiction considers how a D’s mental
limitations affect his perception of danger.

Cases:
Com. v. Sheppard – D and friends were hanging and drinking. D started arguing with V, D got mad and swung
an axe at V and struck him multiple times, killing him. D struck him 17 times, not considered heat of passion of
self-defense act.
RULE: self-defense established if the actor has bona fide, reasonable belief standard. (reasonable standard)
Com. v. Truong – D stabbed his father, who was abusive towards his mother, to death in the home. D has mental
illness and has been inpatient in the past. D claims “imperfect self-defense.”
Rule – Court finds that the defense of imperfect self-defense exists where the defendant actually, but
unreasonably, believed that deadly force was necessary.

Simple Assault
§ 2701(a): Simple Assault
 Offense defined – Except as provided under section 2702 (relating to aggravated assault), a person is
guilty of assault if he:
o (1) attempts to cause or intentionally, knowingly or recklessly causes bodily injury to another
 Mens Rea for Attempt = intent
 Negligently causes bodily injury with a deadly weapon
 Attempts to physical menace that places another in fear of imminent bodily injury
 To show attempt to inflict bodily injury, must show actor had specific intent to cause
bodily injury.
 Person acts intentionally w/ respect to a material element of an offense if it has
conscious object to engage in conduct of that nature or to cause such a result.
 Intent may be shown by circumstances which reasonably suggest that D intended to
cause bodily injury.
 (traditional battery and attempted battery like torts)
o (2) negligently causes bodily injury to another with a deadly weapon
 ex. holding a loaded gun (not the way you should handle) – acting negligently
 (traditional battery and attempted battery like torts)
o (3) attempts by physical menace to put another in fear of imminent serious bodily injury; or
 tell someone you’re going to hurt, threaten, or attempt to hurt them
 the cause of bodily injury = traditional assault (like torts)
o (4) conceals or attempts to conceal a hypodermic needle on his person and intentionally or
knowingly penetrates a law enforcement officer or an officer or an employee of a correctional
institution, county jail or prison, or detention facility or mental hospital during the course of an
arrest or any search of the person.

Ways to show Assault:

 You try (attempt) to create bodily injury to another person and desire bodily injury
 Intentionally, knowingly, or recklessly (Mens Rea) – viewing them as different things (1 reason why
legislatures would include all phrases)

Com. v. Richardson – Police responded to a domestic, V fell downstairs on top of officer, D punched officer in
face. Punch broke officer’s glasses causing him to fall down the steps. Officer did not go to hospital or miss work
but suffered a sore jaw.
RULE: Bodily injury defined as the impairment of physical condition or substantial pain Pa § 2301. Prosecution
doesn’t have to establish that the officer actually suffered bodily injury; rather it’s enough to support conviction if
prosecution establishes that D intended to cause injury; intent may be shown by circumstances which reasonably
suggest a defendant intended to cause injury.
Reasoning: D claims officer didn’t suffer bodily injury b/c he didn’t receive any medical treatment. Also claims
he was acting out of grief, anger, and/or frustration, so not an intentional act. Court disagrees on both claims. D’s
punch breaking officer’s glasses, causing him to fall and causing him pain for days was sufficient to show that D
actually caused bodily injury to the officer. D’s conduct = intentional act upon an officer = simple assault.

Defenses:
 Consent may be a defense
Aggravated Assault
Standard:
 Assault may carry a greater penalty, by statute, when a deadly weapon is used.
 The statute provides for different mens rea standards for serious bodily injury to “special victim.”
 Agg. assault is described as a “failed murder”
 Actual Malice = recklessness that manifests extreme indifference to the value of human life. Subsection
(1)
 Recklessness that does not amount to malice = substantial and unjustifiable risk that is a gross deviation
from what a reasonable person would do. Subsection (2), (8), & (9). (lesser standard)

§ 2702(a): Aggravated Assault-Offense Defined

- (a) Offense defined – a person is guilty of aggravated assault if he
o (1) attempts to cause bodily injury to another, or causes such injury intentionally, knowingly or
recklessly under circumstances manifesting extreme indifference to the value of human life
 attempt requires intent (desire result)!
 MALICE!
 knowledge = (all but certain) your action will cause the injury
 recklessness – last clause modifies only recklessness!
 recklessness degree required = extreme indifferent to the value of human life
o (2) attempts to cause or intentionally, knowingly or recklessly causes serious bodily injury to
any of the officers, agents, employees or other persons enumerated in subsection (c) or to an
employee of an agency, company or other entity engaged in public transportation, while in the
performance of duty
 if you recklessly cause any serious bodily injury to anyone in (c), you are guilty
 recklessly standard is different between (1) and (2)
 the degree of recklessness required = gross deviation from the ordinary standard of
care.
 special victims
o (3) attempts to cause or intentionally or knowingly causes (ordinary) bodily injury to any of the
officers, agents, employees or other persons enumerated in subsection (c), in the performance
of duty
 this doesn’t require SERIOUS bodily injury
o (4) attempts to cause or intentionally or knowingly causes (ordinary) bodily injury to another
with a deadly weapon

o (5) attempts to cause or intentionally or knowingly cause (ordinary) bodily injury to a teaching
staff member, school board member or other employee, including a student employee, of any
elementary or secondary publicly funded educational institution, any elementary or secondary
private school licensed by the Department or Education or any elementary or secondary
parochial school while acting in the scope of his or her employment or because of his or her
employment relationship to the school
 o (6) attempts by physical menace to put any of the officers, agents, employees or other person
enumerated in subsection (c), while in the performance of duty, in fear of imminent serious
bodily injury
 ex. threaten to shoot someone in the arm
o (7) uses tear or noxious gas as defined in section 2708(b) (relating to use tear or noxious gas in
labor disputes) or uses an electric or electronic incapacitation device against any officer,
employee or other person enumerated in subsection (c) while acting in the scope of his
employment

o (8) attempts to cause or intentionally, knowingly or recklessly causes (ordinary) bodily injury to
a child less than six years of age, by a person 18 years of age or older.
 might apply simple assault because of the “tender years”
 special victims

o (9) attempts to cause or intentionally, knowingly or recklessly causes (serious) bodily injury to
a child less than 13 years of age, by person 18 years of age or older.
 special victims

Reckless with the POSSIBILITY to serious bodily injury = simple

§ 2701(b) – Mens Rea for Assault

(b) Kinds of culpability defined:

(1) A person acts intentionally with respect to a material element of an offense when:
(i) if the element involves the nature of his conduct or a result thereof, it is his conscious object to
engage in conduct of that nature or to cause such a result; and
(ii) if the element involves the attendant circumstances, he is aware of the existence of such
circumstances or he believes or hopes that they exist.

(2) A person acts knowingly with respect to a material element of an offense when:
(i) if the element involves the nature of his conduct or the attendant circumstances, he is aware that his
conduct is of that nature or that such circumstances exist; and
(ii) if the element involves a result of his conduct

(3) A person acts recklessly with respect to a material element of an offense when he consciously disregards
a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must
be of such a nature and degree that, considering the nature and intent of the actor’s conduct and the circumstances
known to him, its disregard involves a gross deviation from the standard of conduct that a reasonable person
would observe in the actor’s situation.

(4) A person acts negligently with respect to a material element of an offense when he should be aware of a
substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be
of such a nature and degree that the actor’s failure to perceive it, considering the nature and intent of his conduct
and the circumstances known to him, involves a gross deviation from the standard of care that a reasonable
person would observe in the actor’s situation.

§ 2702(c): Aggravated Assault – Officers, Employees, Etc., Enumerated

- (c) The officers, agents, employees and other persons referred to in subsection (a) shall be as follows:

o (1) Police officer; (2) Firefighter; (3) County adult probation or parole officer; (4) County
juvenile probation or parole officer; (5) An agent of the PA Board of Probation and Parole; (6)
Sheriff; (7) Deputy sheriff; (8) Liquor control enforcement agent; (9) Officer or employee of a
correctional institution, county jail or prison, juvenile detention center or any other facility to
which the person has been ordered by the court pursuant to a petition alleging delinquency
under 42 Pa.C.S. Ch. 63 (relating to juvenile matters); (10) Judge of any court in the unified
 judicial system; (11) The Attorney General; (12) A deputy attorney general; (13) A district
attorney; (14) An assistant district attorney; (15) A public defender; (16) An assistant public
defender; (17) A Federal law enforcement official; (18) A state law enforcement official; (19)
A local law enforcement official; (20) Any person employed to assist or who assists any
federal, state or local law enforcement official; (21) Emergency medical services personnel;
(22) Parking enforcement officer; (23) A magisterial district Judge; (24) A constable; (25) A
deputy constable; (26) A psychiatric aide; (27) A teaching staff member, a school board
member or other employee, including a student employee, of any elementary or secondary
publicly funded educational institution, any elementary or secondary private school licensed by
the Department of Education or any elementary or secondary parochial school while acting in
the scope of his or her employment or because of his or her employment relationship to the
school; (28) Governor; (29) Lieutenant Governor; (30) Auditor General; (31) State Treasurer;
(32) Member of the General Assembly; (33) An employee of the department of environmental
protection; (34) an individual engaged in the private detective business as defined in section
2(a) and (b) of the act of August 21, 1953; (35) An employee or agent of a county children and
youth social service agency or of the legal representative of such agency; (36) A public utility
employee or an employee of an electric cooperative; (37) A wildlife conversation officer or
deputy wildlife conservation officer of the PA Game Commission; (38) A waterways
conservation officer or deputy waterways conservation officer of the PA Fish and Boat
Commission; (39) A healthcare practitioner or technician.

Notes:
 Two standards for this – 1. regular people 2. special victims (lower standard, punishment greater)
 Agg. = serious bodily injury or attempt to cause serious bodily injury
 Special Victims – attacking the “social order,” they have a high profile and stand for the things that
those bad guys are committing.
Cases:
Com. v. Nichols – D got into a fight with V after V came to pick up debris that fell on D’s property. D threatened
and ordered V off the property, while they were looking for V’s glasses. D hit V in the jaw with the bat. V
attempted to get away and D threw bricks at the car. V suffered a broken jaw that had to be wired shut for weeks.
- D acted recklessly and with specific intent. Jury instructions – if they find D caused serious bodily harm,
that satisfies that he acted intentionally, knowingly, recklessly.
- Serious bodily injury  established from officer’s broken jaw + being confined to only liquid diet
- Mens Rea  bat being swung at someone’s head = life threatening circumstance = recklessness; bat can
is considered a deadly weapon
RULE: A person acts recklessly with respect to serious bodily injury when he consciously disregards a
substantial and unjustifiable risk that serious bodily injury will result from his conduct. The risk must be of such a
nature and degree that, considering the nature and intent of D’s conduct and the circumstances known to him,
disregard involves a gross deviation from the standard of conduct that a reasonable person would observe in D’s
situation. Important: Court messed up because they didn’t define serious bodily injury to a person in a particular
“special category.” The statute provides for different mens rea standards for serious bodily injury to those people.
Victim suffers serious bodily injury, commonwealth doesn’t need to prove specific intent.

Com. v. Patrick – V was an off-duty cop, waiting to get into a bar when he had an argument with D. V decided to
go to different bar, and D came up punched him from behind on side of fact, and V fell to the ground hitting his
head, becoming unconscious and bleeding from his head.
NOTE: if V would have died, we would be asking the question of invol. manslaughter or 3rd degree murder.
RULE: Agg. assault  need malice, which is demonstrated by recklessness that shows extreme difference to
human life. Agg. assault amounts to the same type of conduct for 3rd degree murder, but V doesn’t die.
Reasoning: Courts says commonwealth established the elements b/c they set forth evidence showing it was a
surprise attack, V was defenseless and sustained severe bodily injury as direct result of D’s punch.

Com. v. McHale – D was drunk driving, and side swiped a car and hit two people causing serious bodily injuries.
D drove away from the scene of the crime.
Issue: Was there mens rea?
RULE: The Agg. assault by vehicle while driving under the influence offense requires only negligence and not
recklessness. If D is reckless then must prove malice. Malice requires extreme level of recklessness.
Merely causing an accident w/ your car that leads to an accident or death  potentially simple negligence; even
when you mix in DUI element.
Court states car accidents rarely rise to the level of Agg. assault.
Ex. of drunk driving that results in Agg. assault  highspeed racing; continuing to drive w/ a body on hood.

Quizzes:
 The defendant attacked a bank teller with a chainsaw, cutting off the V’s hand. What is D’s best
argument to reverse an agg. assault conviction: the jury was instructed that it must find the D guilty of
agg. assault if his actions took unreasonable and unjustified risk of cutting off the teller’s hand.
 The D stabbed his V in the arm, causing serious bodily injury to the blood vessels and ultimately
requiring the arm to be amputated. At trial for agg. assault, the judge instructed jury that if D took “an
unjustifiable and extraordinary risk that the V would lose his arm” that it must convict him of agg.
assault. Under which circumstances should the appellate court affirm the conviction: if V is younger
than 13 but older than 6 and the D is 18 or older.
 Which is likely to yield an agg. assault conviction in PA that an appellate court with affirm: a bar patron
w/ a 0.13 blood alcohol level punch an officer in the bar to investigate the possibility of underage
patrons being served. § 2602(a)(4) – a punch is bodily injury and punch is intentional. Agg. assault b/c
victim is a police officer.
 D was negligently cleaning his gun w/o realizing that it was locked. Weapon went off and shot his son.
Which crime is most serious that he could be convicted of: simple assault. The only crime that involves
a negligently-inflicted injury is simple assault – when done with a weapon.

Defenses:
 Consent may be a defense
Kidnapping/Kidnapping of a Minor
18 Pa.C.S.A. § 2901 – Kidnapping
(a) Offense defined – Except as provided in subsection (a.1), a person is guilty of kidnapping if he unlawfully
removes another substantial distance under the circumstances from the place where he is found, or if he
unlawfully confines another for a substantial period in a place of isolation, with any of the following
intentions:
(1) To hold for ransom or reward, or as a shield or hostage
(2) To facilitate commission of any felony or flight thereafter
(3) To inflict bodily injury on or to terrorize the victim or another.
(4) To interfere with the performance by public officials of any government or political function.
(b) Grading – The following apply:
(1) Kidnapping under subsection (a) is a felony of the first degree. A removal or confinement is unlawful
within the meaning of subsection (a) if it is accomplished by force, threat or deception, or, in the case of an
incapacitated person, if it is accomplished without the consent of a parent, guardian or other person responsible
for general supervision of his welfare.

18 Pa.C.S.A. § 2901(a.1) Kidnapping of a Minor

(a.1) Kidnapping of a minor – A person is guilty of kidnapping of a minor if he unlawfully removes a person
under 18 years of age a substantial distance under the circumstances from the place where he is found, or if he
unlawfully confines a person under 18 years of age for a substantial period in a place of isolation, with any of the
following intentions:
(1) To hold for ransom or reward, or as shield or hostage.
(2) To facilitate commission of any felony or flight thereafter.
(3) To inflict bodily injury on or to terrorize the victim or another.
(4) To interfere with the performance by public officials of any governmental or political function.
(b) Grading – (2) Kidnapping under subsection (a.1) is a felony of the first degree. A removal or confinement is
unlawful within the meaning of subsection (a.1) if it is accomplished by force, threat or deception, or, in the case
of a person under 14 years of ag, if it is accomplished without consent of a parent, guardian or other person
responsible for general supervision of his welfare.

Fraud in factum – consents to one act, but then is victimized by another act.
Consent can be withdrawn

§ 2902 – Unlawful Restraint - misdemeanor

(a) Offense defined – Except as provided under subsection (b) or (c), a person commits a misdemeanor of
the first degree if he knowingly:
a. (1) restrains another unlawfully in circumstances exposing him to risk of serious bodily
injury; or
b. (2) holds another in a condition of involuntary servitude
(b) Unlawful restraint of a minor where offender is not victim’s parent – if the victim is a person under 18
years of age, a person who is not the victim’s parent commits a felony of the second degree if he
knowingly:
a. (1) restrains another unlawfully in circumstances exposing him to risk of serious bodily injury;
or
b. (2) holds another in a condition of involuntary servitude.
(c) Unlawful restraint of minor where offender is victim’s parent – If the victim is a person under 18 years
of age, a parent of the victim commits a felony of the second degree if he knowingly:
a. (1) restrains another unlawfully in circumstances exposing him to risk of serious bodily injury;
or
b. (2) holds another in a condition of involuntary servitude
(d) Definition – As used in this section the term “parent” means a natural parent, stepparent, adoptive parent
or guardian of a minor.

18 Pa.C.S. § 2903 – False Imprisonment

Offense defined – Except as provided under subsection (b) or (c), a person commits a misdemeanor of the second
degree if he knowingly restrains another unlawfully so as to interfere substantially with his liberty.
False imprisonment of a minor where offender is not victim’s parent – If the victim is a person under 18 years of
age, a person who is not the victim’s parent commits a felony of the second degree if he knowingly restrains
another unlawfully so as to interfere substantially with his liberty.
False imprisonment of a minor where offender is victim’s parent – If the victim is a person under 18 years of age,
a parent of the victim commits a felony of the second degree if he knowingly restrains another unlawfully so as to
interfere substantially with his liberty.
Definition – As used in this section the term “parent” means a natural parent, stepparent, adoptive parent or
guardian of a minor.

Theft
PA’s Theft Statute (like Illinois) is based on the MPC
 While thefts elements must all be shown beyond a reasonable doubt, the prosecution may
sustain its burden wholly by circumstantial evidence. [Com. v. Crawford].
 PA’s approach to theft is broader than the common law because under PA law the
“exercising of unlawful control” of property is enough to convict someone of theft, even if they
did not commit the initial theft themselves.
 In PA it’s irrelevant if an actor later returns what they took, this does not negate an
actor’s intent at the time they acted.
 In PA, Theft by Unlawful Taking is a lesser included offense of Theft by Deception,
meaning the two offenses merge and a defendant can only be convicted of one.

18 Pa. C.S.A. §3921 Theft by Unlawful Taking

(a) Movable property. –A person is guilty of theft if he unlawfully takes,
or exercises unlawful control over, movable property of another with intent to deprive him
thereof.

 Moveable Property: “Movable property is defined as property the location

of which can be changed.” [citing Goins, citing 18 Pa. C.S.A. § 3901].
 Intent to Deprive:
 “Deprivation occurs if a person: (1) “withholds property of
another permanently;” or (2) disposes of the property so as to make it
unlikely that the owner will recover it.” [citing Goins, citing 18 Pa.
C.S.A. § 3901].
 “Intent:” the conscious object to cause a particular result
[Crawford below].
 “Deprive means any one of these things;
 to withhold property or another permanently, or for an
extended period as to appropriate a major portion of its
economic value; OR
 w/ intent to restore only upon payment of reward or
other compensation; OR
 to dispose of the property so as to make it unlikely the
owner will recover it. [Crawford below].

(b) Immovable property. –A person is guilty of theft if he unlawfully transfers,

or exercises unlawful control over, immovable property of another or any interest therein
with intent to benefit himself or another not entitled thereto.

 Unlawful Taking Hypo from Theft Quiz: Matt’s neighbor is a golf

enthusiast who owns many different sets of golf clubs. Matt needs a new set, but
he cannot afford one on his teacher’s salary. One day, Matt’s neighbor forgets to
close his garage door and Matt can see all of the golf clubs sets. Thinking that his
neighbor won’t miss just one set, Matt sneaks into the garage and takes a case
with a full set of irons and woods. Matt enjoys a full summer of golf with the set
as Matt’s neighbor doesn’t notice it is missing. At the end of the summer, Matt
feels guilty and decides to return the clubs. Furious that Matt stole his clubs,
Matt’s neighbor calls the police. It’s appropriate to charge Matt w/ Theft by
Unlawful taking under PA law.
o Rule: Pennsylvania’s statute defines theft
by unlawful taking as unlawfully taking or exercising
unlawful control over moveable property of another
with intent to deprive him thereof. See 18 Pa. C.S.A.
§3921(a).
o Analysis:
 Matt snuck into garage and facts say no
permission.
 Matt took the case with golf clubs and
because it was without permission it was
done so unlawfully.
 The facts indicate Matt wants a new set
of golf clubs but can’t afford one. Therefore,
when Matt took the clubs, the facts indicate
Matt intended to permanently keep them.
o Conclusion: Because all of the elements of Theft
are met, it is appropriate to charge Matt with Theft by
Unlawful taking.
 18 Pa. C.S.A. §3922(a) Theft by Deception Defined

(a) Offense defined — A person is guilty of theft if he

intentionally obtains or withholds property of another by deception. A person deceives if
he intentionally:

(1) creates or reinforces a false impression, including false impressions as to law,

value, intention or other state of mind; but deception as to a person’s intention to
perform a promise shall not be inferred from the fact alone that he did not
subsequently perform the promise;

(2) prevents another from acquiring information which would affect his judgment of a
transaction; or

(3) fails to correct a false impression which the deceiver previously created or
reinforced, or which the deceiver knows to be influencing another to whom he stands
in a fiduciary or confidential relationship.

 Theft by Deception Hypo From Quiz: Monica loves Jason’s Ducati. Jason
decides to sell his old 2015 Ducati and buy a new 2021 model. Monica is excited for
the opportunity, but she knows she can never afford it. Monica decides to approach
Jason about the motorcycle anyway. Monica’s bank account only has $2,000 in it.
Monica agrees to pay Jason $7,500 for his 2015 Ducati. Monica believes she is very
clever because she knows the check will bounce and Jason will not discover her deceit
until it is too late. After giving Jason the check, Monica drives the motorcycle home.
Once she is home, Monica texts her best friend “Jason is such a sucker. I just got his
Ducati for free, because that check is for sure going to bounce.” Assuming that the
Commonwealth relies on this text for evidence and it is admissible, Monica can
only be convicted of Theft by Deception only.
o Rule: A person commits Theft by Deception if they intentionally
create or reinforce a false impression. 18 Pa. C.S.A. §3922(a). Deception as
to a person’s intention to perform a promise shall not be inferred from the
fact alone that he did not subsequently perform that promise. 18 Pa. C.S.A.
§3922(a).
o Analysis: Here, Monica intentionally created a false impression that
she had the money in her bank account to pay for the Ducati. She obtained
possession of the Ducati with Jason believing this impression. Here, the fact
finder can rely on an admission by Monica that she intentionally deceived
Jason and that she had no intention of paying Jason for the Ducati.
Unlike Wilkes, there is more evidence beyond Monica failing to subsequently
perform her promise to pay Jason.
o Thus, the commonwealth can prove all the elements for both Theft
by Deception and Theft by Unlawful taking. Since Theft by Unlawful Taking
is a lesser included offense of Theft by Deception, the two crimes will merge

PA Cases Interpreting the Theft Statutes

Com. v. Adams*: D indicted of theft by unlawful taking of movable property (§3921(a)). Court applied plain-
meaning rule while interpreting §3921(a). Although D argued there was no evidence to show he misappropriated
(unfairly) or stole the car, the court held that D “exercised unlawful control over” the car when he got in the car,
started the engine, and offered to sell the car to someone. [PA Supreme Ct].
 *Important:
o Good case to look at for arguing different methods of statutory
interpretation; Mistick said D’s attorney showed “good lawyering” pointing to legislative
intent and dissent seemingly agrees.
 o Dissent cites “The object of all interpretation and construction of statues is to
ascertain and effectuate the intention of the General Assembly. Every statue shall be
considered, if possible, to give effect to all of its provisions.” [Citing PA legislative
mandate of Section 1921(a) of Statutory Construction Act of 1972.]
o Dissent agrees w/ D’s theory in favor of legislative intent.
o Dissent believes the majority’s interpretation of the theft statute would subject actor to
identical punishment as the one for PA Crimes Code section 3925 (Receiving Stolen
Property).

Com. v. Goins: D indicted of theft by unlawful taking of movable property (§3921(a) and by
deception (§3922(a)). Court held sufficient evidence to show D took movable property of another. D
demonstrated “intent to deprive” when D received a package addressed to another, person who addressed
to lived in Texas not PA, D deliberately lied about his relationship when accepting the package, didn’t offer any
reason for taking package until he later admitted he lied. Although D argues insufficiency of the evidence because
the prosecution failed to identify specifically “the seized property” as the “stolen property,” the court
disagrees. [PA Superior Ct.].
 Merger: D argued that theft by unlawful taking & by deception merge into one crime à Court
agrees that the elements of theft by unlawful taking merge b/c theft by deception requires the
additional element of “deception” where unlawful taking does not.
 PA Superior Court Interpreted the Statutes for Theft Into 3 Elements
Three Elements of Theft by Unlawful Taking Theft By Deception
(1) unlawful taking or unlawful control over movable (1) intentionally obtaining or withholding
property; (2) movable property belongs to property; (2) property belongs to
another; and (3) intent to deprive permanently. another; and (3) deception.
 Court’s analysis of why these merge:
o If actor takes movable property that belongs to another the facts proving this
would be the same as facts showing proof that property belongs to another (aka
doesn’t matter that one includes word “movable” – it’s a no brainer if property
belongs to someone else and not yours –its movable).
o If actor unlawfully takes or controls another’s property AND intentionally
withholds property permanently (elements for unlawful taking) this is the same as
when an actor would want to intentionally obtain and withhold another’s
property.

Com. v. Wilkes: Involved a business relationship where D bought oil from another. Oil supposed to be paid for
upon receipt so D issued a check and paid, at the time of which he had $28,000 in his account upon which the
check’s funds would be drawn for. Oil wasn’t as promised so D and the person went into negotiations to reduce
price for the oil. Negotiations went south, D stopped payment on the check after receiving advise from his lawyer
and remained in extensive negotiations w/ person to resolve situation, but after finding out D stopped payment on
his check the person had D charged w/ theft by unlawful taking and by deception.
 No mens rea for theft by unlawful taking = the mere fact that D refused to pay after the fact by
stopping his check was not enough for them to infer that D had the intent necessary for an unlawful
taking b/c at the time he carried away the oil he paid for it, submitted himself to extensive
negotiations, etc.
 No mens rea for theft by deception = D issued a “good” check (his account had more than
enough $$ to pay the oil) & at no time prior to the transaction did D conceal his true identity.

Com. v. Crawford: D owned a building which was leased for use as car repair shop. A customer of the repair
shop brought an old car there for repair after it had been in an auto-accident. D got mad and moved the car into
his father-in law’s garage after claiming he asked the tenant to remove the car b/c it looked like “junk” and was
illegally parked on the land surrounding his father-in law’s house, not subject to the lease agreement. Court held
the evidence adduced at trial was sufficient to intent prove theft by unlawful taking b/c D testified at trial to
removing the buggy, placing it in his father’s garage, of which D had “exclusive control” b/c D had the key to his
father-in law’s residence b/c he was maintaining it, and D took these actions despite knowing the fact that the car
either belonged to the tenant or someone else.
Defenses
1. Mistake of Fact:
 Com v. Crawford: D tried to argue his counsel failing to instruct the jury (unsuccessfully) that the tenant
told him someone gave him the car and that the tenant was going to use it for himself, therefore when
other difficulties arose between D and his tenant, causing the lease to terminate, D claims he took
possession of the car b/c he assumed the tenant vacated and abandoned the car as junk.

Robbery
 Theft plus force!
 Concerned with theft from the physical person of the victim.
 Like common law, PA allows force for robbery can be “however so slight;” BUT amount of force is
important for grading the offense as a 1st , 2nd , or 3rd degree felony. [ Com. v. Brown].
o Legislative directive = punish robbers according to amount of violence they
inflict on victims. Id.

18 Pa. C.S.A. §3701(a) Robbery Defined

(a) Offense defined —
(1) A person is guilty of robbery if, in the course of committing a theft, he:

(i) inflicts serious bodily injury upon another;

(ii) threatens another with or intentionally puts him in fear of immediate serious bodily
injury;

(iii) commits or threatens immediately to commit any felony of the first or

second degree;

(iv)* inflicts bodily injury upon another or threatens another with or intentionally puts
him in fear of immediate bodily injury;

(v)* physically takes or removes property from the person of another by force
however slight; or

(vi)** takes or removes the money of a financial institution without the permission of
the financial institution by making a demand of an employee of the financial
institution orally or in writing with the intent to deprive the financial institution
thereof.

(2) An act shall be deemed “in the course of committing a theft” if it occurs in an attempt to
commit theft or in flight after the attempt or commission.

(3) For purposes of this subsection, a “financial institution” means a bank, trust company,
savings trust, credit union or similar institution.

(b) Grading. --Robbery under subsection (a)(1)(iv) and (vi) is a felony of the second degree; robbery
under subsection (a)(1)(v) is a felony of the third degree; otherwise, it is a felony of the first degree.

18 Pa. C.S.A § 3702(a) Robbery of a Motor Vehicle (Cited in Com. v. Bonner but not on Charta): “A person
commits a felony of the first degree if he steals or takes a motor vehicle from another person in the presence of
that person or any other person in lawful possession of the motor vehicle.”
  Element Breakdown: Prosecution must prove actor committing (1) the stealing,
taking, or exercise of unlawful control over a motor vehicle; (2) from another person in the
presence of that person or any other person in lawful possession of the vehicle; and (3) the
taking must be accomplished by use of force, intimidation, or inducement of fear in the victim.
[Com. v. Bonner].

Com. v. Brown: Purse snatching case. Main takeaway for robbery in PA = any amount of force is sufficient; even
force that surprises victim into giving up item – is sufficient to allow the factfinder to decide beyond a reasonable
doubt that the actor used force. Here, the Court inferred sufficient force merely from her purse being taken off her
arm.

Com. v. Bonner: Carjacking case where D broke into husband and wife’s home. D robbed them at knife point,
sexually assaulted the wife, and forced wife to give him the keys to her and husband’s car. Wife and husband
watched from her kitchen D drive off. D was charged w/ robbery of a motor vehicle (a felony 1 that has enhanced
sentencing). D’s theory on appeal was that this was merely a robbery not robbery of a motor vehicle b/c the
statute includes the following “taken from another person in the presence of that person or any other person in
lawful possession of that vehicle,” and this means D had to forcibly remove someone from the car. Court
disagrees and says the statute does not require the victim be forcibly ejected from the vehicle or the driver’s seat.
Instead, the Court says the statute requires either the D take or exercise unlawful control over operation of the car
from the driver, in the driver’s presence, by means of force or intimidation.

Force must effectuate the taking, cannot just be force before or after.

Burglary
 Concerned with committing a crime when unlawfully entering into a building or premises.
 Unlicensed entry with the intent to commit a crime.

18 Pa. C.S.A.§ 3502 Burglary

(a) Offense defined. –A person commits the offense of burglary if, with the intent to commit a crime therein (in
the premises its breaking into), the person:
(1)
(i) enters a building or occupied structure, or separately secured or occupied portion thereof,
that is adapted for overnight accommodations in which at the time of the offense any person
is present, and the person commits, attempts or threatens to commit a bodily injury crime
therein;

(ii) enters a building or occupied structure, or separately secured or occupied portion thereof
that is adapted for overnight accommodations in which at the time of the offense any person
is present;

(2) enters a building or occupied structure, or separately secured or occupied portion thereof that is
adapted for overnight accommodations in which at the time of the offense no person is present;

(3) enters a building or occupied structure, or separately secured or occupied portion thereof that is not
adapted for overnight accommodations in which at the time of the offense any person is present; or

(4) enters a building or occupied structure, or separately secured or occupied portion thereof that is not
adapted for overnight accommodations in which at the time of the offense no person is present.

(b) Defense. –It is a defense to prosecution for burglary if any of the following exists at the time of the
commission of the offense:
 (1) The building or structure was abandoned.
(2) The premises are open to the public.
(3) The actor is licensed or privileged to enter.

(c) Grading. –

(1) Except as provided in paragraph (2), burglary is a felony of the first degree.

(2) As follows:

(i) Except under subparagraph (ii), an offense under subsection (a)(4) is a felony of the second
degree.

(ii) If the actor’s intent upon entering the building, structure or portion under subparagraph (i) is
to commit theft of a controlled substance or designer drug as those terms are defined in section
2 of the act of April 14, 1972 (P.L.233, No.64), known as The Controlled Substance, Drug,
Device and Cosmetic Act, burglary is a felony of the first degree.

(d) Multiple convictions. –A person may not be sentenced both for burglary and for the offense which it was his
intent to commit after the burglarious entry or for an attempt to commit that offense, unless the additional offense
constitutes a felony of the first or second degree.

Com. v. Alston: D broke into person’s home. D heard person coming and fled from the scene. On appeal D’s
theory was that it was unconstitutional for prosecution not to specify which crime D intended to commit.
Court applies the rule below, in particular the one from Wilamowski, and finds D’s argument to be weak. Here, D
not only broke into the home, but the person saw him inside his home, and D fled the scene. Once D breaks in
unlawfully and enters that’s enough to infer he was going to commit a crime. Court’s rationale = A conclusion
to the contrary would place police and citizens in a dangerous position of having to allow a D to take substantial
steps toward committing a crime, potentially risking violence, in order to convict a D for burglary.
o Rule:
o Under PA law, burglary is defined as an unauthorized entry with intent to commit a
crime after entry. The intent to commit a crime after entry may be inferred from the
circumstances surrounding the incident (“totality of circumstances”), which can be inferred
by actions as well as words. When inferring intent from actions, the actions must bear
reasonable relation to the commission of the crime. Importantly, the Court held
in Wilamowski, that breaking a window or door—without more—is not enough to support
an inference of intent to commit a crime.

Com v. Dockins: D entered his doctor’s office, carrying a gun. D stole $25 from the doctor and shot him once in
the head. Question was whether burglary merges into the crime of robbery? Court held no. Key takeaway is that
robbery is concerned w/ the physical person of the victim, whereas burglary is concerned w/ entering into a
building. While it is correct that when larceny (theft) and burglary are committed at the same time, larceny can be
merged into burglary because it’s a lesser included offense of burglary (aka burglary has all the same elements as
larceny but more), robbery is NOT a lesser included offense of burglary or vice versa. Robbery and burglary are
two different crimes concerned with different interests; therefore, it does not matter if they occur as result of the
same chain of continuous conduct.

Arson
 Variations involve combinations of the following:
 Intentionally starts a fire:
o with purpose of destroying (unoccupied property or dwelling) or
o with recklessness to destruction of property (unoccupied
property or dwelling) AND
 o with harm (to person).

**If you get a question – ask was the fire intentionally started, was the purpose to destroy something, were they
reckless with the possibility of destruction of property, and/or reckless with regard to harm? Whats the mens rea
with regard to harm? Which degree of arson would it be if its reckless? Is a campfire a fire? Is that what the
legislature meant in this case or in terms of fire?

18 Pa. C.S.A. §3301 Arson

§ 3301. Arson and related offenses.

(a) Arson endangering persons. --

(1) A person commits a felony of the first degree if he intentionally starts a fire or causes an
explosion, or if he aids, counsels, pays or agrees to pay another to cause a fire or explosion,
whether on his own property or on that of another, and if:

(i) he thereby recklessly places another person in danger of death or bodily

injury, including but not limited to a firefighter, police officer or other person actively
engaged in fighting the fire; or

(ii) he commits the act with the purpose of destroying or damaging an inhabited
building or occupied structure of another.

(2) A person who commits arson endangering persons is guilty of murder of the second degree
if the fire or explosion causes the death of any person, including but not limited to a firefighter,
police officer or other person actively engaged in fighting the fire, and is guilty of murder of the
first degree if the fire or explosion causes the death of any person and was set with the purpose
of causing the death of another person.

(b) Sentence. -- A person convicted of violating the provisions of subsection (a)(2), murder of the first
degree, shall be sentenced to death or life imprisonment without right to parole; a person convicted of
murder of the second degree, pursuant to subsection (a)(2), shall be sentenced to life imprisonment
without right to parole. Notwithstanding provisions to the contrary, no language herein shall infringe
upon the inherent powers of the Governor to commute said sentence.

(c) Arson endangering property. --A person commits a felony of the second degree if he intentionally
starts a fire or causes an explosion, whether on his own property or that of another, or if he aids,
counsels, pays or agrees to pay another to cause a fire or explosion, and if:

(1) he commits the act with intent of destroying or damaging a building or unoccupied
structure of another;

(2) he thereby recklessly places an inhabited building or occupied structure of another in

danger of damage or destruction; or

(3) he commits the act with intent of destroying or damaging any property, whether his own or
of another, to collect insurance for such loss.

(d) Reckless burning or exploding. --A person commits a felony of the third degree if he intentionally
starts a fire or causes an explosion, or if he aids, counsels, pays or agrees to pay another to cause a fire or
explosion, whether on his own property or on that of another, and thereby recklessly:

(1) places an uninhabited building or unoccupied structure of another in danger of damage or

destruction; or
 (2) places any personal property of another having a value that exceeds $5,000 or if the
property is an automobile, airplane, motorcycle, motorboat or other motor--propelled vehicle in
danger of damage or destruction.

(d.1) Dangerous burning. --A person commits a summary offense if he intentionally or recklessly starts
a fire to endanger any person or property of another whether or not any damage to person or property
actually occurs.

(e) Failure to control or report dangerous fires. --A person who knows that a fire is endangering the
life or property of another and fails to take reasonable measures to put out or control the fire, when he
can do so without substantial risk to himself, or to give a prompt fire alarm, commits a misdemeanor of
the first degree if:

(1) he knows that he is under an official, contractual or other legal duty to control or combat
the fire; or

(2) the fire was started, albeit lawfully, by him or with his assent, or on property in his custody
or control.

(f) Possession of explosive or incendiary materials or devices. --A person commits a felony of the
third degree if he possesses, manufactures or transports any incendiary or explosive material with the
intent to use or to provide such device or material to commit any offense described in subsection (a), (c)
or (d).

(i) Defenses.--It is a defense to prosecution under subsections (c), (d) and (d.1) where a person is
charged with destroying a vehicle, lawful title to which is vested in him, if the vehicle is free of any
encumbrances, there is no insurance covering loss by fire or explosion or both on the vehicle and the
person delivers to the nearest State Police station at least 48 hours in advance of the planned destruction
a written sworn statement certifying that the person is the lawful titleholder, that the vehicle is free of
any encumbrances and that there is no insurance covering loss by fire or explosion or both on the
vehicle.

(j) Definitions. --As used in this section the following words and phrases shall have the meanings given
to them in this subsection:

"Occupied structure." Any structure, vehicle or place adapted for overnight accommodation
of persons or for carrying on business therein, whether or not a person is actually present. If a
building or structure is divided into separately occupied units, any unit not occupied by the
actor is an occupied structure of another.

"Property of another." A building or other property, whether real or personal, in which a

person other than the actor has an interest which the actor has no authority to defeat or
impair, even though the actor may also have an interest in the building or property.

Com. Leslie: Rule: Three facts must be established for an arson conviction in Pennsylvania: (1) there was a fire;
(2) of incendiary origin; and (3) that the defendant was the guilty party. Here, because there was
no incendiary fire there is no arson. The Court held there was no corpus delicti because there wasn’t any tangible
evidence or circumstantial evidence besides police only having suspicions and a “hunch” that the fire was
incendiary and deliberately set. That was too speculative and even if they had D’s confession, they needed
evidence showing the fire was actually incendiary.

Com. v. Colon: Involved a case where D was living with a woman and was physically abusing her, threating her
life, and they had a very toxic relationship in which he threatened to burn down her building. Here,
unlike Leslie, there was evidence to show that the fire was deliberately set by the D because the
victim whose home was burnt down testified that the D threatened her numerous times and on the day of the fire
a neighbor heard him say he was going to light the block on fire.
 Rule: Direct evidence is not a pre-requisite to an arson case because it’s clear that arson by its
very nature is never committed in the presence of others, and therefore refusal to commit on
circumstantial evidence alone would be bad policy and invite actors to commit arson.

Accomplice Liability (complicity)

Complicity = Encouraging someone else to commit a crime or being their accomplice in the commission of
the crime.
Often you will have both being alleged. Rarely conspiracies are not attempted and completed. Rare to have a
prosecution for one and not the other.
Complicity is not a separate crime.
Complicity = how you show that a person is guilty of the underlining crime.
DO NOT WRITE THAT THEY ARE GUILTY OF COMPLICITY – ITS A THEORY!
Common law = All crimes foreseeable from the crime committed
MPC = Only those crimes for which the defendant is culpable.
Ex. If you are complicit in a bank robbery, you will be convicted of bank robbery. Complicity is a theory by
which you are found guilty of a crime.

Mens Rea
 Does not involve intent; Reckless in encouraging to commit the crime that causes harm
 IN PA = Complicity by the recklessness. Only complicity if you desire the crime to occur and aid
in its commission
 Merely have to share the mens rea of the person who is thereby encouraged by your account.
Scope of Liability
 Common law = all crimes foreseeable from the crime committed.
 MPC = Only those crimes for which the defendant is culpable.

18 Pa. C.S.A. §306: Liability for Conduct of Another; Complicity

(a) General rule: A person is guilty of an offense if it is committed by his own conduct or by the
conduct of another person for which he is legally accountable, or both.

(b) Conduct of another: A person is legally accountable for the conduct of another person when:

(1) acting with the kind of culpability that is sufficient for the commission of the offense, he
causes an innocent or irresponsible person to engage in such conduct;

Note – if you are reckless with the fact that your words could cause someone else to kill a person, then you can be guilty of 3 rd
degree murder, even if you cause someone else to do the killing.

(2) he is made accountable for the conduct of such other person by this title or by the law
defining the offense; or

(3) he is an accomplice of such other person in the commission of the offense.

(c) Accomplice defined: A person is an accomplice of another person in the commission of an offense
if:

(1) with the intent of promoting or facilitating the commission of the offense, he:

(i) solicits such other person to commit it; or

(ii) aids or agrees or attempts to aid such other person in planning or committing
 it; or

(2) his conduct is expressly declared by law to establish his complicity.

(d) Culpability of accomplice: When causing a particular result is an element of an offense, an

accomplice in the conduct causing such result is an accomplice in the commission of that offense, if he
acts with the kind of culpability, if any, with respect to that result that is sufficient for the commission of
the offense.

CAVEAT – you are an accomplice even if you don’t have the mens rea of intent if the crime you’re committing
has a mens rea other than intent and you share that mens rea and the crime involves results.
Ex. You are involved in drag racing, and you strike and kill someone else. Drag racing involves recklessness of
human life... my drag racing encouraged you to drag race.. 3rd degree murder involves reckless disregard of
human life, we are both guilty of 3rd degree murder. Mine is on a theory of complicity. If you engage in an act
that encourages another person to be reckless and that recklessness by the other person causes a death.

(e) Status of actor: In any prosecution for an offense in which criminal liability of the defendant is
based upon the conduct of another person pursuant to this section, it is no defense that the offense in
question, as defined, can be committed only by a particular class or classes of persons, and the
defendant, not belonging to such class or classes, is for that reason legally incapable of committing the
offense in an individual capacity.

(f) Exceptions: Unless otherwise provided by this title or by the law defining the offense, a person is not
an accomplice in an offense committed by another person if:

(1) he is a victim of that offense;

(2) the offense is so defined that his conduct is inevitably incident to its commission; or

(3) he terminates his complicity prior to the commission of the offense and:

(i) wholly deprives it of effectiveness in the commission of the offense; or

(ii) gives timely warning to the law enforcement authorities or otherwise makes proper
effort to prevent the commission of the offense.

(g) Prosecution of accomplice only: An accomplice may be convicted on proof of the commission of
the offense and of his complicity therein, though the person claimed to have committed the offense has
not been prosecuted or convicted or has been convicted of a different offense or degree of offense or has
an immunity to prosecution or conviction or has been acquitted.

Cases:
Com. v. Koczwara – D is the licensee and operator of a Tavern that had a liquor license issued by the PA Liquor
Control Board. D was indicted on 5 counts of violations of the Liquor Code. D was serving and selling beer to
minors (the selling charge was later removed). D argues there was no evidence that he was present on any of the
occasions when minors were there. Also argued there was no evidence D personally sold to minors or had
knowledge that the sale occurred. His bartender made the sale to the minors.
RULE: A defendant employer may be held vicariously liable for an employee’s violation of a regulatory statute.
REASONING: Typically, an employer cannot be held criminally liable for the wrongful act of an employee
unless the employer somehow participated in the act. Imposing vicarious criminal liability would contradict the
basic principle that a person can only be convicted for his own personal criminal conduct. Regulatory provisions
govern certain areas of law where the well-being of society is at risk. Statutory crimes differ from true crimes b/c
they do not punish morally culpable behavior. They punish the failure to adhere to regulatory provisions,
regardless of mental intent, and the penalties on the grounds that the general well-being of society outweighs the
interest of the defendant. Similarly, it is reasonable to hold a defendant employer liable for the actions of an
employee where the well-being of the public is at stake. Particularly regarding the sale of alcohol, it is important
to place upon an employer the duty to regulate the behavior of his employees to ensure the sale of a potentially
dangerous substance is properly handled. For the foregoing reasons, a legislature is free to impose vicarious
criminal liability upon an employer for the statutory crimes of an employee. The only limitation is that the
imposition of vicarious liability accord with the constitutional requirement of due process. Here, the liquor code
demonstrates the Legislature’s desire to impose vicarious liability on employers for the misconduct of their
employees. The entire Code does not require any level of mental intent. The omission of any such requirement
clearly reveals the legislature’s desire to hold violators strictly liable. It further demonstrates the legislatures
intent to place a burden of responsibility upon an employer to ensure his employees do not violate the provisions
of the Code. B/c the legislature intended to impose vicarious liability on liquor licensees, D is liable for the
statutory violations of his employees.

Com. v. Roebuck – D convicted of 2nd degree murder, burglary, aggravated indecent assault, and criminal
conspiracy to commit robbery.
Com. v. Torrito

Defenses

Withdrawal
 Giving reasonably adequate notice to all co-conspirators that one no longer intends to take part in the
criminal plan in time for the other conspirators to abandon the conspiracy is usually sufficient to
establish withdrawal.
 This defense permits the conspirator to avoid criminal responsibility for FUTURE crimes. It does not
crimes ALREADY committed.
 Either assistance (accomplice) or agreement (conspiracy), but the withdrawal must be very CLEAR.
Must frustrate this but either going to the police or by doing something else that will ensure that the act
intended never comes to fruition.

Conspiracy

Solicitation Conspiracy Attempt Target Crime

When the person solicited agrees to participate with the person soliciting to commit a crime, a conspiracy is
formed. When an overt act is committed by any of the persons involved, the crime of conspiracy is complete.
Any overt act is enough, no matter how preliminary or preparatory in nature, as long as it is a manifestation that
the agreement is being carried out.

§ 901(b) – Conspiracy is an inchoate crime and does not necessarily entail maturation into a committed crime.
The agreement necessary to create a conspiracy may involve an attempt to commit a crime, and impossibility of
completion is not a defense to an attempt (Com. v. Reed)

MPC (5.03) – requires that the object of the agreement must be a crime for conspiracy to be committed.
Requires an overt act unless the object crimes are serious felonies.
 Follows the same duration as PA law.
 All crimes for which the defendant is culpable.
 Mens Rea – not precise on the mens rea or culpability elements. States only that the agreement must
have been made with the purpose of promoting or facilitating the commission of the crime.
 Actus Reus – follows the common law – agreement is the core concept of conspiracy.
 Overt Act – only required if the substantive offense is relatively minor—a felony of the 3rd degree or
misdemeanor.
 Abandonment – allows for this defense, “renunciation.” It is a limited affirmative defense (1) the
 defendant must have “thwarted the success of the conspiracy” and (2) the abandonment must be
“complete and voluntary.”

Notes:
 Conspiracy is a continuing course of conduct which terminates when the crime or crimes which are its
object are committed or the agreement that they be committed is abandoned by the defendant and by
those with whom he conspired.
 Material Elements of Conspiracy are: (1) an intent to commit or aid in an unlawful act; (2) an agreement
with a co-conspirator; and (3) an overt act in furtherance of the conspiracy.
 If you conspire to do multiple crimes in one agreement, it is one count as an umbrella charge.
 Conspiracy is a way to hold an individual or others accountable for the crimes of others.

1. Conspiracy is a separate crime

 Conspiracy DOES NOT merge w/ the completed offense.
 If D and B conspire to commit a robbery and then do so, they may be charged and separately punished for two
separate felonies (1) conspiracy to rob, and (2) robbery.

2. Conspiracy is a felony
 Conspiracy is a felony where the purpose of the agreement is to commit another felony or even a misdemeanor.
 Ex. If A and B, two teachers in public school, agree to go on strike in violation of a misdemeanor statute prohibiting
strikes by public school teachers, they commit the felony of conspiracy.

3. Vicarious Liability
 Extends to all parties one might reasonably anticipate as likely to participate in the agreement and to all crimes that
may be committed in furtherance of the conspiratorial goal if the act was a reasonably foreseeable consequence of
the unlawful agreement.
 The acquittal of or failure to prosecute one co-conspirator does not prohibit the prosecution of other co-conspirators
in some jurisdictions.
 Crimes by Unknown Co-Conspirators (Chain & Wheel Theories) – The principles of vicarious liability extend to
all persons involved in the conspiracy including those the accused has never met, as long as a co-conspirator is
aware that there are other members, he can be criminally responsible for conspiracy.

4. Procedural Advantages
 Hearsay Admissible – a special hearsay exception allows the use of the out-of-court statements of a co-conspirator,
made in furtherance of the conspiracy, to be used against the other co-conspirators.
 Broad venue – Venue for a conspiracy charge may be in any county in which any co-conspirator performed an act
in furtherance of the conspiracy. Thus, the prosecutor frequently has a broad choice of trial sites.

Agreement, Actors, Overt Acts, and Duration

Mens Rea
 Conspiracy is a specific intent crime.
 It can require a higher mens rea than the crime the parties agree to commit, meaning the mens rea
requirement for conspiracy can be higher than the mens rea of the crime that is committed as a result of
the agreement.
Actus Reus
 Agreement
 Or the agreement to assist in the preparation for the crime.
Overt Act
 PA requires an overt act.
 An “overt act” demonstrates that the conspiracy has gone beyond the purely “mental state” and has
reached the implementation stage.

§ 903 – Criminal Conspiracy – Actus Reus of Conspiracy

(a) Definition of conspiracy – A person is guilty of conspiracy with another person or persons to commit a
crime if with the intent of promoting or facilitating its commission he:
(1) agrees with such other person or person that they are one of more of them will engage in
 conduct with constitutes such crime or an attempt or solicitation to commit such crime; OR
(2) agrees to aid such other person or persons in the planning or commission of such a crime or of
an attempt or solicitation to commit such crime.
(b) Scope of conspiratorial relationship – If a person is guilty of conspiracy, as defined by the subsection
(a) of this section, knows that a person with whom he conspires to commit a crime has conspired with another
person or persons to commit the same crime, he is guilty with such other person or persons, to commit such crime
whether or not he knows their identity.
(c) Conspiracy with multiple criminal objectives – If a person conspires to commit a number of crimes,
he is guilty of only one conspiracy so long as such multiple crimes are the object of the same agreement or
continuous conspiratorial relationship.
(d) Joinder and venue in conspiracy prosecutions – (1) Subject to the provisions of paragraph (2) of this
subsection, two or more persons charged with criminal conspiracy may be prosecuted jointly if:
(i) they are charged with conspiracy with one another; OR
(ii) the conspiracies alleged, whether they have the same or different parties, are so related that
they constitute different aspects of a scheme of organized criminal conduct.
(2) In any joint prosecution under paragraph (1) of this subsection:
(i) no defendant shall be charged with a conspiracy in any county other than one in which he
entered into such conspiracy or in which an overt act pursuant to such conspiracy was done by
him or by a person with whom he conspired; AND
(ii) neither the liability of any defendant nor the admissibility against him of evidence of acts or
declarations of another shall be enlarged by such joinder; AND
(iii) the court shall order a severance or take a special verdict as to any defendant who so
requests, if it deems it necessary or appropriate to promote the fair determination of his guilt or
innocence and shall take any other proper measures to protect the fairness of the trial.
 Note - Venue refers to the convenience and locality of trial, or “the right of a party to have the
controversy brought and heard in a particular judicial district. Venue assumed jurisdiction exists and it
can only be proper where jurisdiction already exists. Venue in a criminal action properly belongs in the
place where the crime occurred.
(e) Overt act – No person may be convicted of conspiracy to commit a crime unless an overt act in
pursuance of such conspiracy is alleged and proved to have been done by him or by a person with whom he
conspired.
- Note - A prosecution for criminal conspiracy may be brought in any county where the unlawful
combination was formed, or in any county where an overt act was committed by any of the conspirators in
furtherance of the unlawful combination.
(f) Renunciation – It is a defense that the actor, after conspiring to commit a crime, thwarted the success of
the conspiracy, under circumstances manifesting a complete and voluntary renunciation of his criminal intent.
(g) Duration of conspiracy – For purposes of 42 Pa.C.S. § 552(d) (relating to commission of offense):
(1) conspiracy is a continuing course of conduct which terminates when the crime or crimes which
are its object are committed or the agreement that they be committed is abandoned by the defendant and by those
with whom he conspired
(2) such abandonment is presumed if neither the defendant nor anyone with whom he conspired
does any overt act in pursuance of the conspiracy during the applicable period of limitation; and
(3) if an individual abandons the agreement, the conspiracy is terminated as to him only if and when
he advises those with whom he conspired of his abandonment or he informs the law enforcement authorities of
the existence of the conspiracy and of his participation therein.

PA Duration (After Objective Achieved)

 Where co-conspirators agreed to take steps after the principal objective was accomplished (e.g., to cover
up the crime), the conspiracy may be found to continue.
 Conspiracy to commit insurance fraud by staging an accident continued over the years that insurance
payments were made and received and did not end up until one of the co-conspirators testified about the
fraud before a grand jury.

§ 904 – Incapacity, Irresponsibility, or Immunity of Party to Solicitation or Conspiracy

(a) General rule – Except as provided in subsection (b) of this section, it is immaterial to the liability of
a person who solicits or conspires with another to commit a crime that:
(1) he OR the person whom he solicits OR with whom he conspires does not occupy a particular
position OR have a particular characteristic which is an element of such crime, if he believes that one of them
does; OR
(2) the person whom he solicits or with whom he conspires is irresponsible or has an immunity to
prosecution or conviction for the commission of the crime.
(b) Exception – It is a defense to a charge of solicitation or conspiracy to commit a crime that if the
criminal object were achieved, the actor would not be guilty of a crime under the law defining the offense or as
an accomplice under section 306(e) of this title (relating to status of actor) or section 306(f) (1) or (2) of this title
(relating to exceptions).

Deconstructing the Agreement

 The agreement – at common law, a conspiracy is formed at the moment two persons actually agree to
commit a crime or do a publicly injurious, dishonest, fraudulent, or immoral act.
 The essence of a conspiracy is the agreement. A slight majority (including PA) require some overt act in
addition to the agreement.
 Proof of Agreement – criminal agreements are rarely recorded, and often not explicit. Thus, a
conspiratorial agreement may be proved circumstantially.
 Agreement must be actual – there is no conspiracy unless at least two persons actually subjectively agree
to do the unlawful act.

Distinguishing the Unilateral and Bilateral Theories

- A conspiracy conviction could stand under a unilateral conspiracy statute which allows for only one
alleged conspirator to agree to the commission of an offense.
o “if one or more persons agree...” or “a person is guilty of conspiracy if he agrees to commit a
crime...”
o MPC takes the unilateral approach.
- This jurisdiction and PA have bilateral conspiracy statutes requiring the actual agreement of at least
two conspirators.
o “agrees with another person...” or “if two or more persons agree.”
o Ex. If A asks B, an undercover officer to participate in a burglary, and B pretends to agree in
order to gather evidence against A and arrest her, there is no agreement in a bilateral
jurisdiction (two parties required) and therefore, no conspiracy.
o If, however, after talking to B, A then recruits C for the same crime and C agrees, there is a
conspiracy b/w A and C.

Agreement Co-Conspirators Motivations May Be Different

- Although there must be a meeting of minds as to the commission of the unlawful or publicly injurious
act, there is no need for a concurrence of motives.
- Ex. If A offers B $500 to help him kill V and B agrees, both are guilty of a conspiracy to commit murder
even though A was interested in revenge and B was only interested in money.

Requirement of Knowledge “plus”

- For a supplier of goods or services to be guilty of a conspiracy there must be actual knowledge of the
illegal use and one or more of the following “plus factors”:
o 1. Stake in the criminal enterprise (charging more)
o 2. Restricted commodity – higher standard for drugs or explosives
o 3. Grave crime
o 4. Continuous activity
o 5. Affirmative encouragement or marketing

Cases:
People v. Lauria – D ran a call service that was being used by prostitutes. He admitted that he knew some of
his customers used his answering service for prostitution but denied that he intended to further their criminal
business.
RULE: The intent of a supplier who knows of the criminal use to which his supplies are put to participate in the
criminal activity connect with the use of his supplies may be established by: (1) direct evidence that he intends to
participate; or (2) through an inference that he intends to participate based on, (a) his special interest in the
activity; or (b) the aggravated nature of the crime itself.
REASONING: The court held that the prosecution must prove intent; mere knowledge was insufficient. Further,
that a jury may infer intent from knowledge, especially when the D has a “stake in the venture.” A stake in the
venture may be established by showing that (1) the D charged excessive prices; (2) there is no legitimate use for
the goods or services; or (3) the volume of D’s business with the buyer is grossly disproportionate to any
legitimate demand for his goods or services or constitutes a substantial percentage of the D’s business.

Com. v. Anderson – Undercover officer purchased heroin from D. D’s wife was on the steps and took the
officer’s $, while D got drugs from inside the house. Officer and wife never talked, wife only took the $ and saw
D give the officer drugs. Insufficient evidence that wife was a co-conspirator.
RULE: Essence of criminal conspiracy is “a common understanding, no matter how it comes into being, that a
particular criminal objective be accomplished.” The intent required for criminal conspiracy is “intent of
promoting or facilitating the commission of the offense.” Prosecution must prove the guilt of at least two
conspirators in order to convict one. “A conspiracy may be inferentially established by showing the relation,
conduct or circumstances of the parties, and the overt act on the part of co-conspirators have uniformly been held
competent to prove that a corrupt confederation has in fact been formed. Conviction for conspiracy cannot be
based upon mere suspicions and conjectures.
To prove a corrupt confederation are:
1. associations b/w alleged conspirators.
2. knowledge of the commission of a crime.
3. presence at the scene of the crime; and
4. in some situations, participation in the object of the conspiracy.

Com. v. Snyder (agreement to conspiracy) – D (owner of plumbing business) and 2 employees continuously
lied to customers about repairs made or damage caused, created misleading/false contracts, or overcharged
customers beyond the fair price.
RULE: Where the conduct of the parties indicates they were acting in concern with a corrupt purpose in view,
the existence of a conspiracy may properly be inferred. A conspiracy may be proven by subsequent acts if those
acts support an inference of prior agreement.

Com. v. Gross (overt act) - D was dating a man whose ex-wife filed a PFA order on him and their kids. Final
PFA was ordered, and D’s boyfriend was not allowed to have firearms in the house. D purchased a gun/license w/
BF’s address. BF took the gun and went to ex-wife’s house and kidnapped the son at gunpoint. Police came,
chased BF, BF killed one officer and wounded another before police shot him to death.
RULE: An actor and his accomplice share equal responsibility for the criminal act if the accomplice acts w/ the
intent of promoting or facilitating the commission of an offense and agrees or aids or attempts to aid such other
person in either the planning or the commission of the offense. No minimum amount of assistance or contribution
requirement, for it has long been established that intent of the parties is a consideration essential to establishing
the crime of aiding and abetting a felony. Even non-substantial assistance, if rendered with the intent of
promoting or facilitating the crime, is sufficient to establish complicity. Absence or presence at the scene and the
participant’s role in the complicity are not dispositive of whether accomplice liability exists. Accomplice liability
does not create a new or separate crime; it merely provides a basis of liability for a crime committed by another
person.

Com. v. Basile (duration) – 3 women were part of a motorcycle club and organized/planned to rob a tavern.
They shot the owner and bartender, stole money from the register and the owner’s wallet, and fled the scene. Both
victims died. The crime was planned for almost 6 years. The gun was purchased by another club member.
RULE: Hearsay statements made by a co-conspirator are allowed to be admitted against accused if the statements
are made during the conspiracy, in furtherance thereof, and where there is other evidence of the existence of.
conspiracy. This exception applies when where no party has been formally charged with conspiracy nor need the
co-conspirator, whose declaration is testified to, be on trial. To lay a foundation for the co-conspirator exception
to the hearsay rule, the Commonwealth must prove that: (1) a conspiracy existed b/w declarant and the person
against whom the evidence is offered; and (2) that the statement sought to be admitted was made during the
course of the conspiracy. There must be evidence other than the statement of the co-conspirator to prove that the
conspiracy existed. A conspiracy, for purposes of this exception, may be inferentially established by showing the
relation, conduct or circumstances of the parties. When a conspiracy to commit a particular crime or crimes has
been show, each conspirator is responsible for the acts of his co-conspirators committed in furtherance of the
conspiracy; the agreement is the nexus which renders a conspirator vicariously liable for the acts of his associates.

Com. v. Johnson (duration) – Undercover cop purchased drugs from D three times, and each time D got the
drugs from a third person and gave the third person the money every time.
RULE: A conspirator is criminally responsible for all acts of a co-conspirator which are committed in
furtherance of the common design and the natural and probable consequences of those acts. The duration of a
conspiracy depends upon the facts of the particular case, that is, it depends upon the scope of the agreement
entered into by its members.

Evidentiary Issues

Three Rules:
- Wharton’s Rule
o If it is impossible to commit the substantive offense without cooperative action, the preliminary
agreement between the parties to commit the offense is not an indictable conspiracy.
o There cannot be double counting of the conspiracy and the target offense.
o Bigamy; Adult Incest; Dueling; Adultery
o MPC rejects Wharton’s rule.
o Exception:
 Federal statute defined the crime as “five or more persons” engaged in a gambling
enterprise
 Group crime dangers as envisioned by the Organized Crime Control Act trump
Wharton
 No merger here, and separate crimes of conspiracy and gambling may be charged.
- Gebardi Rule
o A person who is protected by the law that the defendants are conspiring to violate cannot be a
valid party to the conspiracy.
o The Mann Act – made it illegal for a man to take a woman across state lines for sex; was
adopted to protect women; a woman who consents to cross state lines for sex cannot be
convicted of conspiring to violate a law that was designed to protect her. (Gebardi v. U.S.)
o The MPC gets there through its accomplice section
o A person cannot be guilty of conspiracy if she could not be guilty of the substantive offense,
either (a) under the definition of the substantive offense. or (b) as an accomplice to the
commission of the substantive offense.
o One cannot be an accomplice if she is the victim, or her participation is “inevitably incident” to
the commission of the substantive crime.
o The prostitute’s role in Gebardi was “inevitably incident” to the substantive crime.
- Bilateral Rule
o There must be at least “TWO GUILTY MINDS” in order for there to be a conspiracy.
o If one of the two “conspirators” cannot be prosecuted for the crime of conspiracy, there is no
conspiracy.
o Sometimes called the “plurality requirement.”
o Exceptions:
 If other conspirators are acquitted in the same trial and only one is convicted, that
conviction cannot stand in a bilateral jurisdiction
 If that sole conspirator is convicted at a separate trial and the others are acquitted at
separate trial, that sole conspirator’s conviction might stand.
 Inconsistent verdicts are permitted.
o The Bogus Conspirator
  Cannot conspire with an undercover officer because there will not be “TWO GUILTY
MINDS.”
 The undercover officer is feigning a guilty mind
 The policy rationale is that an agreement with an undercover officer is not nearly as
dangerous as an agreement with a legit co-conspirator.
o MPC
 Unilateral conspiracy jurisdictions
 If the defendant believes that he is conspiring with another to commit the target crime,
he is guilty of conspiracy even if the other accused conspirator is acquitted or is bogus
 One guilty mind is enough

Racketeer Influenced and Corrupt Organizations Act – RICO

- Federal law that was designed to attack organized crime – prosecution of all individuals involved in a corrupt
organization
- Being part of an ongoing “criminal enterprise” an expose you to the criminal and civil sanctions under RICO.
- Originally aimed at OC activities: gambling, bribery, kidnapping, murder, money laundering, counterfeiting,
embezzlement, drug trafficking (mafia, street gangs, police departments, operation rescue, politicians, drug gangs)
- The defendant must have: 1. engaged in two or more instances of racketeering activity; and 2. directly invested in,
maintained an interest in or participated in a criminal enterprise affecting interstate or foreign commerce.
- No need for wheel or chain conspiracy relationships.
- Merely show that defendant is part of a criminal enterprise or member to criminal organization is enough.
- Enough to show that defendants associate for the purpose of making money through criminal activity.
- For mob prosecution, government can go after the boss as well as the soldiers.
- Established enhanced sentences

Defenses
PA Renunciation (defense)
 For an abandonment of the conspiracy to be legally sufficient, it must occur before the commission of
the crime becomes so imminent that avoidance is out of the question.
 An intent to withdraw, to be effective, must be communicated in ample time to allow co-conspirators to
also abandon the scheme. Moreover, failure to actually participate in the activity which is the subject of
its conspiracy does not in and of itself establish abandonment.

§ 902(b): Renunciation (Abandonment)

 It is a defense that the actor, after soliciting another person to commit a crime, persuaded him not
to do so or otherwise prevented the commission of the crime, under circumstances manifesting a
complete and voluntary renunciation of his criminal intent.

Abandonment
 A lengthy period of time passes b/w the time the conspirators begin planning the enterprise and someone
actually taking action in furtherance of the crime. If a sufficient period of time passes, the conspirators
may have effectively abandoned the conspiracy.

Withdrawal
 Giving reasonably adequate notice to all co-conspirators that one no longer intends to take part in the
criminal plan in time for the other conspirators to abandon the conspiracy is usually sufficient to
establish withdrawal.
 This defense permits the conspirator to avoid criminal responsibility for FUTURE crimes. It does not
crimes ALREADY committed.
 Either assistance (accomplice) or agreement (conspiracy), but the withdrawal must be very CLEAR.
Must frustrate this but either going to the police or by doing something else that will ensure that the act
intended never comes to fruition.

Impossibility
 If the parties agree to commit an act they BELIEVE is a crime or is covered by the applicable conspiracy
 statute but is NOT, they cannot be convicted of conspiracy.

Cases:
Com. v. McCall (sufficiency of the evidence) – Officer had surveillance on a block in Philly. D and co-D were
selling drugs kept in a drainpipe. D was the look out and would sometimes take the money. D was arrested and
charged with PWID and conspiracy.
RULE: the essence of a criminal conspiracy is a common understanding that a particular criminal objective be
accomplished. A conviction for conspiracy requires proof of the existence of a shared criminal intent. An explicit
or formal agreement to commit crimes can seldom, be proved and it need not be, for proof of a criminal
partnership is almost invariably extracted from the circumstances that attend its activities. A conspiracy may be
inferred where it is demonstrated that the relation, conduct, or circumstances of the parties, and the overt acts of
the co-conspirators sufficiently prove the formation of a criminal confederation. Even if the conspirator did not
act as a principal in committing the underlying crime, he is still criminally liable for the action of his co-
conspirators in furtherance of the conspiracy. All conspirators are liable for the actions of other conspirators.

Com. v. Roux (renunciation/withdrawal/abandonment) – D gave a friend a knife. D and friend jumped V and
D’s friend stabbed V and killed him. D was carrying the weapon “at the ready” where friend could grab it easily.
RULE: direct proof of an explicit or formal agreement to commit a crime can seldom be supplied and it need not
be for “it is established law in this commonwealth that a conspiracy may be proved by circumstantial evidence as
well as by direct evidence. While more than mere association must be shown, “a conspiracy may be inferentially
established by showing the relation, conduct, or circumstances of the parties, and the overt act on the prove that a
corrupt confederation has in fact been formed. The defendant, that of abandonment the conspiracy before the
stabbing occurred. This defense, that of abandonment or withdrawal from a conspiracy is well recognized in PA.
Where two or more enter into an agreement or plan to perpetrate a [crime], the crime of conspiracy is complete.
However, a conspirator may escape criminal responsibility for the crime is committed or attempted and provided
his withdrawal is communicated to his co-conspirators in sufficient time to allow them to withdraw. It in
hornbook law that a conspirator is criminally responsible for the acts of his co-conspirators which are committed
in furtherance of the common design even though he was not present when the acts were committed. For
abandonment to be legally sufficient, it must occur before the commission of the crime becomes so imminent that
avoidance is out of the question. No principle of law is more firmly established than that when two or more
persons conspire or combine with one another, to commit an unlawful act, each is criminally responsible for the
acts of his associate or confederate committed in furtherance of the common design.

Com. v. Brown (renunciation/withdrawal/abandonment) – 3 men robbed a tavern at gun point, stole money
from the register and robbed the bartender and 8-10 people of their money and personal items. D allowed his
friends to use his car and provided a weapon for them to rob a liquor store, but when tye showed up to the store,
the cops were there, so the robbed the tavern instead.
RULE: For an abandonment to be legally sufficient, it must occur before the commission of the crime becomes
so imminent that avoidance is out of the question. Intention to withdraw by him who so intends must be
communicated in ample time before the substantive crime occurs so as to allow the other planners/conspirators
also to abandon the scheme. Such withdrawal or renunciation is a defense to a charge of conspiracy.

Com. v. Reed (Impossibility Defense) – A maintenance shop was broken into and the interior was vandalized.
The toolboxes and equipment had been placed in tall grass outside. Park personnel removed the boxes and
equipment and set up surveillance. Later, D and friends came to shop and were looking around the tall grass. Park
rangers showed up and arrested D and one friend, the other fled.
RULE: Commonwealth is not required to prove an explicit or formal agreement in order to establish the
existence of a conspiracy. A conspiracy may be proved by circumstantial evidence. Necessity required that the
witness be permitted to supplement his testimony by an opinion concerning the substance which he had observed.

Merger and 3rd Degree Murder Linked to Conspiracy

The Pinkerton Rule: holds conspiracy members criminally responsible for: (1) any reasonably foreseeable crime
committed by a co-conspirator, and (2) in furtherance of the conspiracy.
 This rule establishes vicarious liability for every member of a conspiracy for all foreseeable crimes w/o
 requiring the government to establish accessorial liability.
 Each conspirator, by entering into the conspiratorial agreement, authorizes other members of the
conspiracy to act as his agent to commit crimes necessary to implement their criminal objective.
 Establishes vicarious liability based on negligence, the lowest level of culpability.
 MPC rejects the Pinkerton rule

Pinkerton v. US – Pinkerton brothers conspired to commit tax fraud. One brother went to prison, and the other
brother completed the crime. Both brothers were charged with conspiracy and other crimes.
RULE: holds conspiracy members criminally responsible for: (1) any reasonably foreseeable crime committed
by a co-conspirator, and (2) in furtherance of the conspiracy. So long as the partnership in crime continues, the
partners act for each other in carrying it forward. An overt act of one partner may be the act of all w/o any now
agreement specifically directed to that act. Motive or intent may be proved by the acts or declarations of some of
the conspirators in furtherance of the common objective. The criminal intent to do the act is established by the
formation of the conspiracy.

Com. v. Miller (Merger of the Offenses) – D destroyed a fire tower.

RULE: The crime of criminal conspiracy does not merge with the completed offense which was the object of the
conspiracy. Criminal conspiracy and the completed substantive offense to be separate crimes. Legislatures did not
include any provisions mandating the merger of criminal conspiracy into the completed substantive offense
indicates no change in the existing law was intended.

Com. v. Bucci (Wharton’s Rule) – Two men robbed a bank. Following the robbery, they met with D and the
guns they had used. Agreement was reached that all the money and the guns were to be delivered to D, who
would then dispose of them and return a portion of the proceeds to the other two. After the robbery, the robbers
were arrested and ratted out D.
RULE: An agreement b/w two persons to commit a crime cannot be prosecuted as a conspiracy when the crime
is of such a nature as to necessarily require the participation of two persons for its commission. This rule applies
only where the substantive offense requires concerted criminal conduct. Also, applies to adultery, incest, bigamy,
and dueling-crimes where the parties to the agreement are the only persons who participate in the commission of
the substantive offense and the immediate consequences of the crime rest on the parties themselves rather than on
society at large.
REASONING: the court finds that the rule does not apply here.

Com. v. Fisher (3rd degree murder & conspiracy) – D (minor) and friend cohorts to get a man’s cell phone
fixed. The plan fell through, so they decided to jump someone. D and friends beat up V. Officer showed up, V
lost consciousness, taken to hospital, V suffered a fatal asthma attack.
RULE: To be guilty of conspiracy, the D, upon entering an agreement, must intend that his conduct achieve the
requisite criminal result. When the substantive crime requires an unintended result, a person cannot conspire to
commit that crime b/c it is logically impossible to agree to achieve a specific result unintentionally.

Attempt
** With attempt the issue will be: Whether the D’s actions were preparatory or substantial steps to commit the
target crime to justify a conviction for attempt?***

Proximity
 MPC = Substantial step (PA)
 MPC does not require you to get as close to completing the crime as overt act
 Common law = Overt act
 Mens Rea = Intent
 If I shoot at you and I fail, (desire) = attempted 1st degree
 If I recklessly shoot at you and miss = recklessly endangered your life, not attempted 3 rd degree murder
because you are required to intend the consequence to be guilty of the crime of attempt
 Must intend to attempt
18 Pa. C.S.A § 901(a): Criminal attempt: A person commits an attempt when, with intent to commit a specific
crime, he does any act which constitutes a substantial step toward the commission of that crime.

Different Tests for Assessing the Actus Reus Necessary for Attempt
Point of these is asking when should we intervene?

 Actus reus – preparation to commit the crime.

 Theory of locus pentitenti: We want to give D the chance to withdrawal from
committing the crime on their own.
 To guide us between step 3 to step 4 of crime commission, there are 5 tests to analyze
attempt and when law enforcement should intervene and prosecute:

1. Last Act test

 The most favorable to the defendant.
 Defendant must have taken the either the final or last step to commit the
crime.
 Preserves the most amount of “locus pentintenti”
 This test has the least space for law enforcement to jump in and prevent a
crime, and for some this is too close--many jurisdictions do not like this test.
 Dangerously to close to the defendant committing the crime.
2. Equivocality test
 Another test that favors the defendant.
 Requires that defendant commit an unequivocal act to show that the actor was
implementing a crime.
 Police’s opinion on this testà there are not many things that are unequivocal;
just about everything could be seen or interpreted in more than one way.
 Really hard for prosecution to prove.
 Really hard for law enforcement to decide when to jump in.
3. Proximity test (See Peasley & Rizzo cases)- Old Common Law Test
 Provides flexibility for police; gives them a sliding scale.
 No last step or unequivocal act is required.
 Jurisdictions that use this approach consider two factors: (1) seriousness of
the offense; and (2) how close in space and time the defendant was to committing the
act.
 Seriousness of the Crime is the Most Important Factor:
o More dangerous the crime is the more remoteness in time is
allowed.
o Some courts stretch closeness standard to point of
remoteness where if crime is really serious, they will allow for lesser
standard of remoteness to deter future crimes of such a nature.
4. Probable Desistance Test
 Test: Asks would a normally abiding person have changed his mind and
stopped the criminal conduct?
 Criticisms /Problems with the Test
 Encourages too much speculation
 Very subjective
 A normal law-abiding citizen wouldn’t commit a crime!!!

5. Substantial step test (PA test)

 Test: A person commits attempt when they have the specific intent to commit
a specific crime, they do any act which constitutes a substantial step towards
commission of that crime.
 NOT a defense: Impossibility
NOT PA Cases

Com. v. Peaslee: Massachusetts—Involved an attempt of arson case. D had constructed and arranged
combustibles in a building in such a way that they were ready to be lit and if lit they would have set the building
on fire. D offered to pay one of his young employees to go to the building and light the combustibles. The young
man refused to do it but still got in the car w/ D and they drove toward the building, but within a quarter of a mile
the D said he changed his mind and drove away. Applying the proximity test the Massachusetts court held
that D was not guilty of attempted arson.
 Important fact Mistick points out: D planned to pay the young boy to help him is a
very important fact
 Policy in Favor of Punishing: Fear of conspiracies – people teaming up to commit
crimes = scary to society.
 Mistick’s Opinion: The teaming up was enough to show attempt, however the court
finds it wasn’t enough. If this case’s facts applied PA’s test, different result? Mistick says
yes because D took substantial steps. Biggest period of locus pentitenti than other cases.

People v. Rizzo: New York—Involved an attempted armed robbery case. D was apart of a group of four men in
New York who were planning to a man who was to withdraw payroll valued at $1200 from a bank. D and the
other men who had firearms on them were riding around a car looking for the man. D was supposed to point
out him out and the other three would rob him at gun point. The four men to drove to the bank, D ran into the
bank and while that happened all four were arrested by police that had been following their car and watching
them ride around. Applying the proximity test, the Court held this was not attempt because to constitute the crime
of armed robbery, the money needed to be taken from the person whom they were committing the crime against.
But here, the man the employee they were trying to rob wasn’t even in the bank. The Ds were only
looking planning to comitt the crime by looking for him, and no attempt of robbery could have been committed
without the men laying their eyes on the employee, but man wasn’t there. There even was no payroll in the bank
for them to rob because no money was drawn from the bank for payroll purposes at the time the bank of the
arrest. Therefore, the D wasn’t close enough in proximity.
 Mistick emphasizes that Rizzo is a prime example of the problem with the proximity test and he
says he would lean towards charging them b/c in PA these would count as substantial steps.

People v. Miller: California—Involved a case of attempted murder. Under the influence of alcohol and in
the presence of others in a post office, D threatened to kill a woman. Later that day D came to a field where the
woman was working carrying a loaded highspeed cartridge rifle. D walked towards the woman and constable
was their direction and while he was about 250-300 yards away from them D stopped to load his rifle. At no time
did D lift the rifle or take aim but the woman perceived D to be coming to shoot her and ran away and D
continued to go after her but was stopped when the constable took control off the rifle. Applying
the equivocality test, the Court held that D did not commit an attempt to murder the woman saying that D’s action
could be interpreted as something other than an equivocal act to commit murder. Cultural point: In this town,
everyone carries a gun.
 If you apply PA’s substantial step test, these facts would be enough for a conviction.
 Mistick said: Look at the response of the intervenor, does this bolster the argument that this
crime is dangerous and therefore

Bruce v. State: Maryland case--Takeaway: In Maryland, there is no attempt to commit a felony murder. Attempt
is a specific intent crime and felony murder isn’t a specific intent crime. So, in this case, the Court held that an
actor cannot intend to commit felony murder.

PA Cases (All Applying Substantial Step Test and Inferring Specific Intent from D’s Actions)

Com. v. Pasley: Involved a case of attempted sexual assault. D threw his victim on his bed, straddled her, pushed
up her shirt and bra to her neck and attempted to unbutton her pants. The victim scratched and punched the D
until he bled. D then asked her to leave. Applying the substantial step test, PA’s Superior Ct. said this was
enough for to infer the specific intent necessary to commit sexual assault.
  Rule: Specific intent for a crime may be shown by circumstantial evidence inferred from the
words or actions of the D in light of all the attendant circumstances.

Com. v. Willnets: Involved a case where D was convicted of attempted burglary. D tried to argue (and failed)
that the prosecution couldn’t prove specific intent to commit burglary b/c they could only show he had intent to
enter the garage, not intent to steal anything inside the garage. Applying the substantial step test, the PA Superior
Ct. held that this argument fails b/c for burglary the prosecution only needs to show that for D intended to commit
a crime therein, not what crime or what he was going to take. Because intent to commit burglary could be inferred
there was an attempt.
 Key facts that intent to commit burglary was inferred from: D was attempting to break
padlock on a woman’s door, during the late hours of 1am, and he fled when police arrived.
 Other facts that Court Doesn’t Point Out but Also Could Be Argued to Show
Intent: D broke a window panel on the side of the garage, and he had stolen a van earlier which
they found snow prints leading from the van to the woman’s garage.

Com. v. Geather: Involved an attempted murder case. On appeal D argues he wasn’t attempting to kill him, and
his lawyer focuses on the fact that the trial judge misstated the law and gave bad jury instructions. In its holding,
PA’s Superior Ct. admits that yes, the jury instructions were flawed, and usually such this would lead to a
remand, BUT this case is different. The evidence is substantial here to show that D was attempting to murder the
victim. Here, the D fired his weapon at the victim after having beef in the street. The D fires and misses. Victim
runs away and D continues to fire. D clips him in the side of the head, but doesn’t kill him, victim keeps running
and D keeps moving towards him. D reloads and fires at again the victim again. Takeaway: There’s something
called harmless error, and it doesn’t matter what the jury instructions said because all of D’s actions were enough
for specific intent to be inferred to commit murder. Therefore, the conviction for attempt to commit murder was
proper.

Com. v. Zingarelli: Involves an online sexual predator case where D is duped by online state troopers into
thinking he’s meeting a 15-year-old girl and even expresses to “her” in his communications that he has to be
careful b/c he is afraid to get caught so they need to make it look like a date. They arrange to meet at an ice cream
stand in Tionesta PA. When police arrive, they find preparatory items on him (condoms, bottle of wine, key to a
motel room he checked into). On appeal D’s argument was that he was merely preparing to commit the crime and
the police didn’t give him a chance to change his mind. Applying the substantial step test, PA’s Superior Ct. held
that viewing everything in total, especially the fact that D drove from Pittsburgh to Tionesta (2hr drive), D had
specific attempt to commit statutory sexual assault. All of these were beyond substantial steps, in fact any one or
all of these facts were enough to infer intent because the only thing left was for the “girl” to arrive, so attempt is
proper.
 Maybe different test such as proximity, things would be different.

Com. v. Smith: Involves an attempt to commit burglary case. At 6:30 pm a window in an apartment building was
smashed. The apartment building occupant heard the smash and saw D standing nearby to the window and called
the police. At trial, the Only evidence adduced at trial by the prosecution was that D was standing 10 ft. away
from the broken window. No tools or anything incriminating was found on D’s person. PA Superior Ct. held that
that the facts were not enough to show D had the intent to commit burglary and therefore he could not be guilty of
attempt.
 Takeaway: Guilt cannot be based on speculation or suspicion. There was no nexus between
him being present at the scene and breaking the window. Merely being present = not substantial
steps.

Attempt Defenses
1. Merger
o Com. v. Sims [PA]: D was a prisoner and tried to duck under a police officer’s arm
that was transporting him from a prison to another facility. D was charged w/ escape (the
target crime) and not attempt to escape (the lesser included crime) and the jury finds him
guilty of attempted escape. The PA Supreme Court held that the D’s conviction was
proper.
  The question on appeal was: Whether an actor could be convicted of the
lesser included crime of attempt when they are only charged with the target
crime?
 Takeaway Rule: PA follows the statutory elements approach; meaning that if
the crime requires proof of the same (or less) than all the facts required to
establish the commission of the offense, it’s a lesser included crime of the target.
 Attempt specifically is a lesser included crime b/c it includes all the
same facts of the target minus the crime being completed.

2. Impossibility= NOT a Defense

18 Pa. C.S.A § 901(b) Impossibility: It shall not be a defense to a charge of attempt that because of
a misapprehension of the circumstances it would have been impossible for the accused to commit
the crime attempted.

3. Renunciation

18 Pa. C.S.A § 901(c) Renunciation:

(1) In any prosecution for an attempt to commit a crime, it is a defense that, under
circumstances manifesting a voluntary and complete renunciation of his criminal intent, the
defendant avoided the commission of the crime attempted by abandoning his criminal
effort and, if the mere abandonment was insufficient to
plish such avoidance, by taking further and affirmative steps which prevented the
commission thereof.

(2) A renunciation is not "voluntary and complete” within the meaning of this subsection
if it is motivated in whole or part by:

(i) a belief that circumstances exist which increase the probability of detection or
apprehension of the defendant or another participant in the criminal enterprise, or
which render more difficult the accomplishment of the criminal purpose; OR

(ii) a decision to postpone the criminal conduct until another time or to transfer
the criminal effort to another victim or another but similar objective.

Com. v. Zinagrelli: Facts of case above. [PA]

Important: D tried to argue that he had “right” to renounce his criminal activity and entrapment as his
defenses.
Reunification Rule: Reunification is a defense to attempt which requires a showing that
the defendant avoided the commission of the crime attempted by voluntarily and
completely abandoning his criminal effort. But reunification is not a defense where the
defendant’s opportunity to renounce has expired.
Takeaway: If D wants to renounce, she has to do so before they get caught. Here, the D took
substantial steps, (see above for facts) and the only thing left was for the teenage girl to show
up before the crime was complete.

Entrapment Rule:
Where the conduct of the police rises to the level of outrageousness, the conduct will support a
finding of entrapment as a matter of law. [Citing Lucci case].
Zingarelli = Unlike Lucci: Although D tries to argue that similar to Lucci where the police
conduct was deemed outrageous to satisfy entrapment where police knew Lucci was a
recovering sex addict and used his close friend to entrap him, the Court says the D in this case
was trying to engage in sexual acts with an underage girl and took substantial steps such as
driving 2 hrs. to engage in oral sex with a minor.
Com. v. Alexander: Involved an attempted forgery case where D went into a camera store and asked for a
specific salesperson and requested to buy a camera and its accessories at a value of $1,224. 02. Salesperson was
checking him out at the register, and D handed her a card w/ the name someone else’s name on it. The
sales- person took the card, wrote the name on the card on the receipt, and told D she had to run the card through
a credit card machine to verify the authenticity of the card. D responded by immediately grabbing the card back
and told her he’d be back later. As he tried to leave the store a police officer told D he was under arrest and D
resisted arrest by trying to flee but was eventually apprehended. On appeal D tried to argue he was renounced by
taking back the card and trying to the leave the store, however the Court held that D took substantial steps to
commit forgery of the sales receipts by requesting specific items he was going to purchase on a stolen credit
card, transferring the stolen credit card to the salesperson, and he waited while the sales person prepared the sales
receipt. It was only when the D saw the officer in the store that he backed out, telling the salesperson he’d “back
later.” Thus, D backing out was not voluntary or complete for his defense of reunification to prevail. [PA].

Com. v. Donton: Involves an attempted murder and aggravated assault where man and his wife split up and he
planned to kill her and himself. Equipped with a load gun drove 90 miles to where his wife was staying and told
his son and others, he was going to kill her, leaving letters inferring that he was going to do so (asking his parents
for forgiveness, etc.) along with estate plans. His son called the police who caught him while he was driving
around close to where she was, and they apprehended him and convicted him. On appeal D argued (and
failed) that he did not take substantial steps to commit murder and aggravated assault. The PA Superior Court
held that D had clear intent to kill his wife inferred from the statements to his son and letters. D also took
substantial steps by loading his gun, which was equipped w/ a scope so he could shoot from a long distance
and driving the long distance to where she was staying.
 Important: this directly opposite of the common law test of proximity applied in Rizzo. If
proximity test applied here, wife would have been dead.

Solicitation
Important Notes on Pa’s Solicitation Statute

 PA’s statute requires the specific intent of promoting or facilitating a crime.

 Under the common law no explicit mental state outlined in definition.
 PA’s statute based on MPC.

18 Pa. C.S.A. §902: Criminal Solicitation

(a) Definition of Criminal Solicitation: A person is guilty of solicitation to commit a crime if with the
intent of promoting or facilitating its commission he commands, encourages or requests another person
to engage in specific conduct which would constitute such crime or an attempt to commit such
crime or which would establish his complicity in its commission or attempted commission.

(b) Renunciation: It is a defense that the actor, after soliciting another person to commit a crime,
persuaded him not to do so or otherwise prevented the commission of the crime, under circumstances
manifesting a complete and voluntary renunciation of his criminal intent.

18 Pa. C.S.A. §904(b) Incapacity, Irresponsibility, or Immunity of Party to Solicitation or Conspiracy

(b) Exception: It is a defense to a charge of solicitation or conspiracy to commit a crime that if the
criminal object were achieved, the actor would not be guilty of a crime under the law defining the
offense or as an accomplice under section 306(e) of this title (relating to status of actor) or section 306(f)
(1) or (2) of this title (relating to exceptions).

Com. v. Matty:
 Takeaway: Even if it’s a summary offense its crime, if there’s jail time it’s a crime for which
an actor can be charged with solicitation of.
Com. v. Hacker: A woman’s 13-year-old nephew and his 12-year-old female friend regularly visited the woman's
apartment. One night the three were playing a game of Truth or Dare and the woman dared the 12-year-old girl to
perform oral sex the nephew. When the young girl refused, the woman threatened to inform the young girl's
mother that she had misbehaved. Then the woman then took the young girl by the hand, walked her across the
bedroom, and sat her down next to the woman's nephew where the young girl performed the sexual act on the
woman’s 13-year-old nephew.
 Rules:
o Purpose of PA’s solicitation statute is to hold accountable those who would command,
encourage, or request the commission of crimes by others.
o Prosecution needs to show proof of such encouragement, but with the intent to
accomplish the acts which compromise the crime, not necessarily with intent specific to all
the elements of the crime, much less those crimes with elements which intent is
irrelevant (such as here for a strict liability crime).
o When a statue includes the level of culpability that level of culpability shall apply to
all the material elements of the offense unless a contrary purpose plainly appears.

 Analysis: Without the defendant’s commands encouragements in requests there would have
never been a crime against the young girl. The D intentionally encouraged the specific conduct (oral
sex of a child) which comprise this crime (rape of a child) and the encouragement was with the
intent of facilitating or promoting commission of that contact and that's sufficient to satisfy the
requirements PA’s solicitation. The general assembly has expressed a contrary purpose by
rendering a defendant's belief regarding the victim’s age irrelevant by making the rape of a child
statute an impure strict liability offense (aka no mens rea required). The general assembly also has
an interest in recognizing that older more mature individuals are in position that would allow them
to take advantage of the immaturity and poor judgment of very young minors. Thus, the legislator’s
interests plus the fact that the D’s belief regarding the child’s age is immaterial clearly shows a
contrary purpose here.

Com. v. Wilson: The Ds were involved in separate cases with the same legal issues and almost identical facts, but
their cases were consolidated. All were initially charged with criminal solicitation, and in each case prosecution
was permitted to amend the information to charge the count of prostitution. All four appellants were found guilty
in separate non-jury trials on both solicitation and prostitution, and each was fined $100 and given a six-month
suspended sentence.
 The D’s theory: the police officers that were solicitated would not be criminally liable
for the underlying crime of prostitution, therefore the D’s could not be found guilty of soliciting
them to commit that crime.

 Rules:
o Under the clear meaning of PA’s criminal solicitation statue, an individual
who encourages or requests another person to engage in specific conduct which would
establish his complicity in the commission of the crime violates the statue.
o There's no requirement in the statute that one being solicited be criminally
chargeable for the underlying crime.
o The statute addresses itself to the act of the solicitor (not the solicitee) and
obtaining another individual’s complicity in a crime.

Com. v. Joseph: Involved a sting operation aimed at apprehending people trying to have sex with children.
Detective placed ad on website. D then responded to the ad using an alias. There were email conversations back
and forth for about a month between the D and the detective where the D said he wanted to do explicit sexual acts
with the detectives’ fake daughters under the age of 13. Despite backing out of meeting the detective a couple of
times, the D eventually he ended up traveling from New Jersey to Harrisburg to meet the detective in a hotel
parking lot, where he reiterated again what he wanted to do to the daughter. Among other sexual assaults, the
Appellant was convicted of solicitation to commit rape of a person under 13 years old.
o Rules:
 Where the defense of entrapment is raised, law enforcement’s awareness of a
D’s criminal background is not important, rather the focus is on the law enforcement’s
conduct and it it’s outrageous.
 In Wieskeger the Court noted that in Sherman v. United States entrapment
was established because of law enforcement's persistent resorts to sympathy directed at
recovering a drug addict which led to the defendant overcoming his initial refusal to
pick up drugs for the government.
 Analysis:
 The defense of entrapment does not prevail here because the facts of
Joseph are materially different. The D took substantial steps to commit the sexual
assault of a minor. The detective placed an ad on a public access internet site and
received responses from the D who used an alias. Even if were assumed that the
detective could have been able to ascertain the appellant’s identity and therefore his
criminal background, under the circumstances here, the facts remains that the detective
was able to contact appellant only after the appellant contacted the detective to inform
him, he was interested.

Com. v. Fisher: Involved a case where a drug taskforce accomplished a beeper from a local drug dealer and with
help of the drug dealer’s driver the task force. D was a person who placed a call into the drug dealer’s
beeper and requesting an “eight iron” or “eight ball” of cocaine. As soon as D went to hand the money he was
arrested by police. Prosecution’s theory was that an “eight ball” was slang for an eighth of an ounce of weed,
the common measure sold by people on the street and therefore there was enough to infer that D had intent to
deliver a controlled substance. On appeal D argued that he should not have been charged w/ solicitation
because had the purchase of cocaine been accomplished, D would not have been charged w/ delivery but
merely possession b/c he didn’t have enough cocaine to satisfy the requisite amount for delivery. The Court
holds that while D’s act might fall w/ in the plain meaning of the solicitation statute b/c he requested another
person to engage in the conduct to sell drugs, which would commit a crime, interpreting the statute narrowly in
this way ignored the other elements of the statute (§904(b)) because D wouldn’t have been guilty of the crime
anyways.

Mistake of Fact
§ 304 – Ignorance or Mistake
 Ignorance or mistake as to a matter of fact, for which there is reasonable explanation or excuse, is
a defense if:
 (1) the ignorance or mistake negatives the intent, knowledge, belief, recklessness,
or negligence required to establish a material element of the offense; or
 (2) the law provides that the state of mind established by such ignorance or
mistake constitutes a defense.
Notes:
 A defendant’s mistake of fact is a valid defense when it successfully negates the mens rea element of the
commission of a crime.
 Ex. Breaking into someone’s house that you believe it is your own. Because the crime requires intent to
enter the home of another, this mistake of fact as to the ownership of the home negates the intent
required for this crime.

Com. v. Hamilton – D was in a fight with his GF and threatened to kill her and her son. He pulled the trigger on
the son, and it clicked, and he pulled it again and shot V in the head, instantly killing him. D said he believed the
gun was not loaded and only trying to scare V.
RULE: A bona fide, reasonable mistake of fact may, under certain circumstances negate the element of criminal
intent. It is not necessary that the facts be as the actor believed them to be; it is only necessary that he have a bona
fide and reasonable belief in the existence of facts which, if they did exist, would render an act innocent. When
evidence of a mistake of fact is introduced, the Commonwealth retains the burden of proving the necessary
criminal intent beyond a reasonable doubt. The Commonwealth must prove either the absence of a bona fide,
reasonable mistake, or that the mistake alleged would not have negated the intent necessary to prove the crime
charged.

Com. v. Fine – D illegally assisted certain voters in the general election of 1946.
RULE: Ignorance or mistake of fact may in some cases be admitted as an excuse; as where a man intended to do
a lawful act, does that which is unlawful. But where a statute commands that an act be done or omitted, which, in
the absence of such statute, might have been done or omitted without culpability, ignorance of the fact or state of
things contemplated by the statute, it seems, will not excuse its violation.

Com. v. Compel – D took four horses from a stable. D admitted to taking the horses but contends he did not steal
the horses b/c he reasonably believed the horses were his.
RULE: A bone fide, reasonable mistake of fact will negate the criminal intent necessary for conviction of
larceny. It is not necessary that the facts be as the actor believed them to be; it is only necessary that he have a
bona fide and reasonable belief in the existence of facts which, if they did exist, would render an act innocent.
REASONING: D did reasonably believe the horses were his. No evidence that D had knowledge of the change
of ownership of the horses, such knowledge to be inferred from evidence surrounding the circumstances. Court
reversed.

Mistake of Law
Not a defense to a crime.

§ 302(h) – Culpability as to Illegality of Conduct

 (h) Culpability as to illegality of conduct – Neither knowledge nor recklessness or negligence as
to whether conduct constitutes an offense or as to the existence, meaning or application of the law
determining the elements of an offense is an element of such offense, unless the definition of the
offense or this title so provides.

§ 304 – Official Comments 1967

 This section is derived from Section 2.04 of the Model Penal Code.
 Under existing law a bona fide and reasonable belief in the existence of facts, which would render
an act innocent if they did exist, is a good defense. Commonwealth v. Bollinger, 197 Pa. Superior
Ct. 492 (1962). Where mistake of fact is not based upon reasonable grounds, it is not a defense
even though the belief in its existence is bona fide; but in such a case, the belief may reduce the
offense. Commonwealth v. Miller, 313 Pa. 567 (1934). If defendant, because of a mistake of fact,
did not have the necessary mens rea, he is not guilty of the crime. Commonwealth v. Wilson, 266
Pa. 236 (1920). Generally speaking, ignorance or mistake of law is no defense. Commonwealth v.
Mittelman, 154 Pa.Superior Ct. 572 (1944). But see Commonwealth v. Shaffer, 32 Pa.Superior
Ct. 375 (1907). Consequently, this section does not change existing law.

Notes:
 Being ignorant of the law is not a valid excuse to the commission of a crime and cannot be raised as a
defense.
 Regardless of whether the defendant’s belief is reasonable as to the state of the law in a jurisdiction,
ignorance of the law is not an excuse to use deadly force against a person.
 If it negates mens rea it is a defense

Com. v. Kratsas – Video poker and slot machines were equipped by either D or the machines’ distributors with a
“knock off” feature, permitting the removal of credits or games accumulated by a player and thereby allowing the
owner of the establishment to pay a dollar value per credit. D stated officials gave permits to D authorizing the
use of the slots and machines with knowledge that the devices were used for gambling.
RULE:

Com. v. Fisher - D (minor) and friend cohorts to get a man’s cell phone fixed. The plan fell through, so they
decided to jump someone. D and friends beat up V. Officer showed up, V lost consciousness, taken to hospital, V
suffered a fatal asthma attack.
RULE:
Justification (Including Castle Doctrine, defense of self and others, necessity)
§ 503 - Justification Generally

(a) General rule. –Conduct which the actor believes to be necessary to avoid a harm or evil to himself or
to another is justifiable if:
(1) the harm or evil sought to be avoided by such conduct is greater than that sought to be prevented
by the law defining the offense charged; AND
(2) neither this title nor other law defining the offense provides exceptions or defenses dealing with
the specific situation involved; AND
(3) a legislative purpose to exclude the justification claimed does not otherwise plainly appear.

**Mistick told me to use both (one above and this) and note the distinction** The PA Sup Court restated the
elements of a successful justification defense as follows: 1) that the actor was faced with a clear and imminent
harm, not one which is debatable or speculative; AND 2) that the actor could reasonably expect that the actor’s
actions would be effective in avoiding this greater harm; AND 3) that there is no legal alternative which will be
effective in abating the harm; AND 4) that the Legislature has not acted to preclude the defense by a clear and
deliberate choice regarding the values at issue.

(b) Choice of evils. –When the actor was reckless or negligent in bringing about the situation requiring a
choice of harms or evils or in appraising the necessity for his conduct, the justification afforded by this
section is unavailable in a prosecution for any offense for which recklessness or negligence, as the case
may be, suffices to establish culpability.
 You can’t cause a problem and then claim relief because you were forced to choose two
evils to get out of the dilemma that you had caused.

Justification Defenses
 Says its morally okay, sometimes even desirable because sometimes these actions negate
actual harm.
 Self Defense = justified defense
o 1) Necessity – can’t protect myself without the use of force
o 2) Proportionality - force I used = to the force being used against me -
"give what you get"
o 3) Reasonably belief - actor must reasonably believe the force is necessary
and proportional
o Deadly force is justified if you are not the aggressor - shifting or alternating
aggressors
 Reasonably believe that deadly force is necessary to repeal
imminent use of unlawful deadly force (deadly to deadly =
proportionality)
o Retreat a requirement in common law jurisdictions
o Majority of non MPC jurisdictions = no retreat element.
o Some subject to castle doctrine (minority position)
o Reflects view that all life = sacred, even aggressors.
o Reasonable person
o If B is blind – D held what a reasonable blind person would do.
o Previous experiences and what would be reasonable to them.
 o Battered spouse defense
o Testament of the law’s ability to change
o Doesn’t eliminate the requisite of imminency

Com. v. Manera – D was driving under a suspended license. D was feeling ill at home, and realized her medicine
was at her daughter’s house. She attempted to contact multiple family members to get the medicine, but no one
answered so she drove the vehicle that was on her property awaiting an insurance appraisal to her daughters
where she was arrested.
RULE: PA “adopts the view that a principle of necessity, properly conceived, affords a general justification for
conduct that otherwise would constitute an offense; and that such a qualification, like the requirements of
culpability, is essential to the rationality and justice of all penal prohibitions.” Thus, justification defense is
generally applicable to all offenses, absent clear legislative intent to the contrary. Because justification is an
affirmative defense, the defendant has the burden of asserting an appropriate offer of proof in order to be entitled
to a jury instruction on justification.

Com. v. Grimes – D was CEO of a non-profit dog rescue organization. D received a call about an abused dog. D
and employee took the dog from the premises when no one was home and brought it to the vet. D refused to give
the dog back to the owners and was arrested for theft by unlawful taking and receiving stolen property. The dog
died 5 months later. D admitted to taking the dog on radio and tv and posted pictures of the dog on the Internet.
Due to the publicity, D profited personally from the sale of artwork of the image of the dog.
RULES: Statute says an “actor” and later says “himself” so court denied that actor could apply to dogs. Looking
to the four elements of PA justification, “where the proffered evidence supporting one element of the defense is
insufficient to sustain the defense, even if believed, the trial court has the right to deny use of the defense and not
burden the jury w/ testimony supporting other elements of the defense.
REASONING: D failed to prove the 3rd element (that there is no legal alternative which will be effective in
abating the harm) b/c she could have attempted in different ways to convince the owners to get medical treatment
for the dog, return the dog after the medical treatment, or notify authorities/filed a complaint.

Com. v. Capitolo – D trespassed onto a power plant. D was told to leave by plant security guard and sheriff. D
refused and then removed by the sheriff and charged with trespassing.
RULE: The defense can be raised only in situations that deal with harms or evils that are readily apparent and
recognizable to reasonable persons. The defense cannot be permitted to justify acts taken to foreclose speculative
and uncertain dangers and is therefore limited in application to acts directed at the avoidance of harm that is
reasonably certain to occur. Furthermore, the actor must reasonably believe that the conduct chosen was
necessary to avoid the greater threatened harm or evil. B/c the harm must be real, and not an imagined,
speculative, or non-imminent harm, the actions taken to avoid the harm must support a reasonable belief or
inference that the actions would be effective in avoiding or alleviating the impending harm. To be imminent, the
danger must be, or must reasonably appear to be, threatening to occur immediately, near at hand. and impending.

Defense of Self
Notes:
 In PA, the elements of self-defense are the defendant reasonably believed that he was in imminent
danger of death, the defendant was free from fault in provoking the difficulty which culminated in the
slaying and the defendant did not violate a duty to retreat.
 Burden of Proof: If there is evidence to support a finding of self-defense, the Com. bears the burden of
proving BARD that the defendant did not act in self-defense. (Com. v. Mouzon)
 Must be reasonable and proportionate.
 Deadly force only if threat of death, serious bodily injury, kidnapping or sexual assault.
 Retreat must be preferred to deadly force if it can be done safety unless the state is a stand-your-ground
state (PA)
 Retreat is not required from home or, in PA, from your car and unlawful entry creates presumption of
justified lethal force. (castle doctrine) (so long as you’re not being attacked by your fellow occupants,
 you still have a duty to retreat)

§ 505 – Use of Force in Self Protection

(a) Use of force justifiable for protection of the person – The use of force upon or toward another
person is justifiable when the actor believes that such force is immediately necessary for the purpose of
protecting himself against the use of unlawful force by such other person on the present occasion.

(b) Limitations on justifying necessity for use of force –

(1) The use of force is not justifiable when:
(i) to resist an arrest which the actor knows is being made by a peace officer, although the
arrest is unlawful; or

(ii) to resist force used by the occupier or possessor of property or by another person on his
behalf, where the actor knows that the person using the force is doing so under a claim of
right to protect the property.

Exceptions:
(A) the actor is a public officer acting in the performance of his duties or a
person lawfully assisting him therein or a person making or assisting in a lawful
arrest; OR

(B) the actor has been unlawfully dispossessed of the property and is making a reentry
or recaption justified by section 507 of this title (relating to use of force for the
protection of property); OR

(C) the actor believes that such force is necessary to protect himself against death or
serious bodily injury.

(2) The use of deadly force is not justifiable under this section unless the actor believes that such
force is necessary to protect himself against death, serious bodily injury, kidnapping or sexual
intercourse compelled by force or threat; nor is it justifiable if:

(i) the actor, with the intent of causing death or serious bodily injury, provoked the use of
force against himself in the same encounter; or

(ii) the actor knows that he can avoid the necessity of using such force with complete safety
by retreating, except the actor is not obliged to retreat from his dwelling or place of work,
unless he was the initial aggressor or is assailed in his place of work by another person
whose place of work the actor knows it to be.

(2.1) ("Stand Your Ground" or Castle Doctrine) Except as otherwise provided in paragraph
(2.2), an actor is presumed to have a reasonable belief that deadly force is immediately necessary to
protect himself against death, serious bodily injury, kidnapping or sexual intercourse compelled by
force or threat if both of the following conditions exist:

(i) The person against whom the force is used is in the process of unlawfully and forcefully
entering or has unlawfully and forcefully entered and is present within, a dwelling, residence
or occupied vehicle; or the person against whom the force is used is or is attempting to
unlawfully and forcefully remove another against that other’s will from the dwelling,
residence or occupied vehicle. AND

(ii) The actor knows or has reason to believe that the unlawful and forceful entry or act is
occurring or has occurred.

(2.2) The presumption set forth in paragraph (2.1) does not apply if:
 (i) the person against whom the force is used has the right to be in or is a lawful resident of
the dwelling, residence, or vehicle, such as an owner or lessee; OR

(ii) the person sought to be removed is a child or grandchild or is otherwise in the lawful
custody or under the lawful guardianship of the person against whom the protective force is
used; OR

(iii) the actor is engaged in a criminal activity or is using the dwelling, residence or occupied
vehicle to further a criminal activity; OR

(iv) the person against whom the force is used is a peace officer acting in the performance of
his official duties and the actor using force knew or reasonably should have known that the
person was a peace officer.

(2.3) An actor who is not engaged in a criminal activity, who is not in illegal possession of a
firearm and who is attacked in any place where the actor would have a duty to retreat under
paragraph (2)(ii) has no duty to retreat and has the right to stand his ground and use force, including
deadly force, if:

(i) the actor has a right to be in the place where he was attacked; OR

(ii) the actor believes it is immediately necessary to do so to protect himself against death,
serious bodily injury, kidnapping or sexual intercourse by force or threat; and

(iii) the person against whom the force is used displays or otherwise uses:

(A) a firearm or replica of a firearm as defined in 42 Pa.C.S. § 9712 (relating to

sentences for offenses committed with firearms); OR

(B) any other weapon readily or apparently capable of lethal use.

(2.4) The exception to the duty to retreat set forth under paragraph (2.3) does not apply if the person
against whom the force is used is a peace officer acting in the performance of his official duties and
the actor using force knew or reasonably should have known that the person was a peace officer.

(2.5) Unless one of the exceptions under paragraph (2.2) applies, a person who unlawfully and by
force enters or attempts to enter an actor’s dwelling, residence or occupied vehicle or removes or
attempts to remove another against that other’s will from the actor’s dwelling, residence or
occupied vehicle is presumed to be doing so with the intent to commit:

(i) an act resulting in death or serious bodily injury; or

(ii) kidnapping or sexual intercourse by force or threat.

(2.6) A public officer justified in using force in the performance of his duties or a person justified in
using force in his assistance or a person justified in using force in making an arrest or preventing an
escape is not obliged to desist from efforts to perform such duty, effect such arrest or prevent such
escape because of resistance or threatened resistance by or on behalf of the person against whom
such action is directed.

(3) Except as otherwise required by this subsection, a person employing protective force may
estimate the necessity thereof under the circumstances as he believes them to be when the force is
used, without retreating, surrendering possession, doing any other act which he has no legal duty to
do or abstaining from any lawful action.
 (c) Use of confinement as protective force. –The justification afforded by this section extends to
the use of confinement as protective force only if the actor takes all reasonable measures to
terminate the confinement as soon as he knows that he safely can, unless the person confined has
been arrested on a charge of crime.

(d) Definition of “criminal activity” as used in § 505 –As used in this section, the term “criminal
activity” means conduct which is a misdemeanor or felony, is not justifiable under this chapter and
is related to the confrontation between an actor and the person against whom force is used.

Com. v. Mouzon – THIS CASE DESCRIBES SELF-DEFENSE! – D was harassing women at the bar. D got
into a fight with V outside the back. D pulled out a loaded gun and shot and killed V and a bystander.
RULE: In PA, a justified claim of self-defense requires evidence establishing three elements: (a) that the
defendant reasonably believed that he was in imminent danger of death or serious bodily injury and that it was
necessary to use deadly force against the victim to prevent such harm; (b) that the defendant was free from fault
in provoking the difficulty which culminated in the slaying; and (c) that the defendant did not violate any duty to
retreat.
Provocation: Merely insulting or scandalous words of the light or trivial kind do not suffice to establish the
requisite provocative provocation to negate a claim of self-defense; however, words combined with conduct can
be extremely provocative. (Ex. threats to kill = invite response or even interference, especially from those w/ a
sense of chivalry, and even from those w/ a mind to go further and punish the provocateur.
Reasonable Belief: Involves two elements:
SUBJECTIVE = D must have had an honest, bona fide belief that he was in imminent danger; this consideration
is dependent on the D’s subjective state of mind
OBJECTIVE = the D’s belief D needed to defend himself w/ deadly force, if it existed, must be reasonable in
light at the facts as they appeared to the D – determined objectively.
 Ex. evidence does not support actor had a reasonable belief they needed to use deadly force where actor
orders the V to halt or warns V they possess a deadly weapon.
 D must prove evidence from whatever source suggested self-defense.
 Prosecution must prove BARD that D was not acting in self-defense, which it can sustain if it shows
proof of  the actor was at fault in provoking the incident and continuing the difficulty which resulted
in the slaying; the actor did not reasonably believe that he was in imminent danger of death or serious
bodily injury making it necessary to kill in order to save himself; OR the actor violated his duty to
retreat or avoid the danger.
 As an evidentiary matter, when self-defense is properly at issue, evidence of the V’s prior convictions
involving aggression may be admitted if probative in either corroborating the D’s alleged knowledge of
the V’s violate character – showing D was in reasonable fear of danger; OR 2) as character / propensity
evidence, serving as indirect evidence that the victim was, the aggressor.
 Evidence showing V’ prior convictions only relevant to show V was one of the aggressors not relevant
to determining: 1) whether the actor was free from fault of provocation; OR 2) whether the actor
reasonably believed deadly force was necessary OR 3) whether the actor violated his duty to retreat.
 Only the past crimes of the victim that are similar in nature and not too distant in the time will be
deemed probative – the determination concerning whether the crimes are similar in nature and remote
are up to the sound discussion of the trial judge.

Legislative History Concerning the Enactment of 18 Pa. C.S.A § 505:

 PA traditionally required that the D had the burden to prove affirmative defenses, including self-defense,
by a preponderance of the evidence (derived from Common Law’s approach).
 However, the PA crimes code, enacted in 1973, included provision on justification which included self-
defense, found in § 505.
 Section § 505’s comments note the section was derived from section 3.04 of the Model Penal Code and
makes no substantial change in the existing law.
 In the case of Commonwealth v. Cropper, the PA Supreme Court held that the statute's absence of
mentioning who the burden falls on means that the legislator did not intend to place it on the defendant.

Why Did D Here Not Establish Self-Defense:

  D Provoked the event leading to victim’s death:
o the altercation between Mazoun and King did not occur spontaneously, or in isolation; rather, it
was the culmination of an ongoing confrontation at the bar initiated by the D alone and
continued and escalated by the D alone.
o uncontradicted evidence to show that D’s words and actions were substantially more
provocative than a mere verbal insult.
o he uttered crass and rude comments AND closely followed the woman down a flight of stairs,
verbally harassing them the entire time; he also threatened to kill them, although he did so with
no certain terms, such words combined with conduct are extremely provocative.
o Although the defendant tries to argue he was merely doing this because he was drunk, he knew
harassing and threatening the woman especially well armed with a concealed loaded gun would
cause a fight.
 Reasonable Belief
o Subjective - Even though the record lacked evidence showing the defendant specific object
subjective beliefs if you just evaluate the objective circumstances provided by the evidence, the
defendant still cannot establish reasonable belief b/c he needs both elements shown.
o Objective –
 evidence is undisputed the defendant carried a concealed loaded handgun throughout
the incident and at the moment that he used his deadly force by the by drawing his
loaded handgun and firing twice at the victim, the victim was backing away with his
hands raised.
o Absent testimony or other some other specific account of what the defendant actually believed,
the evidence was not sufficient to present a question to the jury of whether the D subjectively
believed he had to use deadly force when he pulled the trigger, twice.
 Evidence showing victim’s prior convictions not relevant to determining: 1) whether the actor was
free from fault of provocation; or 2) whether the actor reasonably believed deadly force was
necessary or 3) whether the actor violated his duty to retreat.
o Was only relevant to show evidence that victim was an aggressor.

Com. v. Gelber – D was an unemployed addict. D lied to his wife, told her he found work, but he was leaving the
house to buy/use drugs. D went to V’s house to buy drugs to start selling them and stabbed and killed V. D
disposed of the body in a park.
RULE: In the prosecution for 3rd degree murder, evidence of provocation or self-defense tends to negate the
malice required to prove murder. Where there is evidence from which a jury can reasonably infer malice, the
Commonwealth has met its burden of proving beyond a reasonable doubt that the D did not act in self-defense.
The inference of malice may be drawn from the fact that a deadly weapon was used on a vital part of another’s
body, but the inference of malice would not be permitted where the direct evidence presented in the prosecution
case proves the opposite, and therefore, in such a case, there is no justification for a finding of malice.

Com. v. Fisher – D and wife separated. Wife found a new boyfriend (V) and D was not happy about it. D would
call and harass the wife. D and V agreed to meet at the Fairview township bridge after midnight. D was carrying a
gun and shot V in the leg. D forced V to the ground, followed by a scuffle, where D grabbed the fun and hit V in
the head multiple times then left the scene.
RULE: The use of force upon or towards another person is justifiable when the actor believe that such force is
immediately necessary for the purpose of protecting himself against the use of unlawful force by such other
person on the present occasion.
REASONING: Com. was unable to establish BARD that D did not reasonably believe it was necessary to use
such force in order to save his own life. The Com. could not defeat D’s claim of self-defense by showing that he
delivered more blows than necessary as long as he was in the heat of conflict and reasonably believed he was
fighting for his life. Since there was no direct evidence of deliberate excessive force, the Com. failed to show
BARD that D’s belief as to the amount of force necessary to protect himself from imminent death or further
serious bodily injury was unreasonably. Provocation by the V was serious enough to cause a reasonable belief of
imminent danger.

Battered Wife Syndrome

  In PA, the law does not recognize battered wife syndrome as a defense.
 The Violence Against Women Act (VAWA) did not make battered wife syndrome into a defense.
 Evidence concerning battered women arises in two distinct types of murder cases: 1) “non-
confrontational” type case in which an abused woman kills her husband during a period of time when he
is not attacking her (often when he’s sleeping or incapacitated); or 2) in “confrontational” killings,
where the woman uses deadly force in response to an actual physical attack.

Com. v. Dillon – Court discusses the battered wife syndrome “standard.” D’s husband was physically
assaulting her for 18 months. Husband struck her within the 24-hour period of the killing. Husband repeatedly
threatened to kill her. She was scared he was going to b/c she never saw him that aggressive. She reached in the
drawer, grabbed a knife, and stabbed the husband.
RULES: The court must ascertain whether the “reaction” was reasonable considering the circumstances known
to the defendant. A defendant may offer evidence relating to the battered wife syndrome as additional probative
information to the “reasonable-belief” requirement. Where there has been physical abuse over a long period of
time, the circumstances which assist the court in determining the reasonableness of a defendant’s fear of death or
serious injury at the time of the killing include the defendant’s familiarity with the victim’s behavior in the past.
The interpretation suggested herein that evidence of BWS should be admitted evidence of reasonable reflects
legislative intent in the area of self-defense. In self-defense cases where the defendant is a battered woman,
rationally understanding the way in which she perceives danger may not be “within the range of ordinary training,
knowledge, intelligence and experience” of the jury.

Com. v. Miller – D’s husband was abusive. D and husband had a fight and D plunged a kitchen knife into
husband’s heart, causing his death. Charged with 3rd degree murder.
RULE: A person may be convicted of 3rd degree murder where the murder is neither intentional nor committed
during the perpetration of a felony but contains the requisite malice aforethought. Malice has been defined as
“wickedness of disposition, hardness of hear, cruelty, recklessness of consequences, and a mind regardless of
social duty, although a particular person may not be intended to be injured.” BWS evidence is admissible in a
homicide trial as probative evidence of the defendant’s state of mind as it relates to a theory of self-defense.

Defense of Others
§ 506 - Use of Force for the Protection of Other Persons
(a) General rule. — The use of force upon or toward the person of another is justifiable to protect a third
person when:
(1) the actor would be justified under section 505 (relating to use of force in self-protection) in using
such force to protect himself against the injury he believes to be threatened to the person whom he
seeks to protect; and
(2) under the circumstances as the actor believes them to be, the person whom he seeks to protect
would be justified in using such protective force; and
(3) the actor believes that his intervention is necessary for the protection of such other person.
(b) Exception. — Notwithstanding subsection (a), the actor is not obliged to retreat to any greater extent
than the person whom he seeks to protect.

Excuse (includes duress, battered person defense, insanity, involuntary

intoxication, entrapment)

Notes:
Goes to individual
Duress (most places treat it as an excuse defense; not a justification)
Coercion
Focus on the individual
Ask if this person was morally wrong – requires them to be able to muster up mens rea
Was the act the result of coercion?
Was actor’s free will taken away

Note – some justification defenses overlap w/ excuse defenses – some jurisdictions treat them different.
Initial Q with excuse or justification defenses is why do
Causation theory
Excused for some mental illness or disease?
Excused for coercion?
Free Choice Theory
Has actor had enough to appreciate the act?
Retributive grounds
To blame a person is to express a moral criticism
Duress
Common law duress – can’t apply for murder
PA / MPC – duress can be used for murder defense
MPC = generally more lenient – duress under MPC broader vs. common law
Another time duress is used as a defense is when criminals escape prison
D argues they need to get out of prison b/c they under duress and live in fear everyday b/c they are surrounded by
people who are mentally ill in prison
D is supposed to serve in a prison but currently how prison system works – its all filled w/ mentally insane people
Entrapment
1972 PA crimes code switched the burden to an objective standard that D must prove by a preponderance of
evidence that police induced them
Does not apply to crimes of violence

Insanity
Irresistbile impulse test
Durham test

Insanity looks at the defendant’s state of mind at the time of the commission of the offense.

Higher bar than mentally ill

PA follows the M'Naghten Test - rule appears to refer to a certain mental disability which must produce one of
two conditions, both of which are defined in terms of lack of cognition. Elements: (1) (disability) that the
accused have suffered a defect of reason, from a disease of the mind, and (2) (result) that consequently at the time
of the act he did not know (a) the nature and quality of the act, OR (b) that the act was wrong.

The M’Naghten test says the defendant is not guilty if, b/c of a defect of reason due to a mental disease the
defendant did not know either (i) the nature and quality of the act; or (ii) the wrongfulness of the act.

MPC test defines insanity as the defendant at the time of the conduct did not have substantial capacity to
appreciate the wrongfulness of the act or to conform his conduct to the law.

§ 315 – Insanity
(a) General Rule – The mental soundness of an actor engaged in conduct charged to constitute an offense
shall only be a defense to the charged offense when the actor proves by a preponderance of evidence that
the actor was legally insane at the time of the commission of the offense.

(b) Definition – For purposes of this section, the phrase “legally insane” means that, at the time of the
 commission of the offense, the actor was laboring under such a defect of reason, from disease of the mind,
as not to know the nature and quality of the act he was doing or, if the actor did know the quality of the
act, that he did not know that what he was doing was wrong.

§ 314 – Guilty But Mentally Ill (or GBMI)

(a) General Rule – A person who timely offers a defense of insanity in accordance with the Rules of
Criminal Procedure may be found “guilty but mentally ill” at trial if the trier of facts finds, beyond a
reasonable doubt, that the person is guilty of an offense, was mentally ill at the time of the commission of
the offense and was not legally insane at the time of commission of the offense.

(b) Plea of guilty but mentally ill – A person who waives his right to trial may plead guilty but mentally ill.
No plea of guilty but mentally ill may be accepted by the trial judge until he has examined all reports
prepared pursuant to the Rules of Criminal Procedure, has held a having on the sole issue of the
defendant’s mental illness at which either party may present evidence and is satisfied that the defendant
was mentally ill at the time of the offense to which the plea is entered. If the trial judge refuses to accept
a plea of guilty but mentally ill, the defendant shall be permitted to withdraw his plea. A defendant
whose plea is not accepted by the court shall be permitted to withdraw his plea. A defendant whose plea
is not accepted by the court shall be entitled to a jury trial, except that if a defendant subsequently
waives his right to a jury trial, the judge who presided at the hearing on mental illness shall not preside
at the trial.

1. Conviction
2. Criminal sentence
3. Psychiatric evaluation
4. Psychatirc treatment/ hospitalization if needed
5. ...

Note - A finding of not guilty by reason of insanity means that a person was legally insane at the time of the
commission of the offense and therefore lacked mens rea for the crime, whereas guilty by mentally ill means that
a person was mentally ill at the time of the commission of the offense and was not legally insane at the time of
the commission of the offense, therefore they still had mens rea to commit the crime and are therefore guilty.
Legally insane when committing crime ≠ guilty by reason of insanity
Mentally ill when committing crime, not legally insane = guilty, but mentally ill.

(c) Definitions – For the purposes of this section and 42 Pa.C.S. § 9727 (relating to disposition of persons
found guilty but mentally ill):

(1) Mentally Ill: One who as a result of mental disease or defect, lacks substantial capacity either
to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law.

(2) Legal insanity: At the time of the commission of the act, the defendant was laboring under such
a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing
or, if he did know it, that he did not know he was doing what was wrong.

(d) Common law M’Naghten’s Rule preserved – Nothing in this section shall be deemed to repeal or
otherwise abrogate the common law defense of insanity (M’Naghten’s Rule) in effect in this
Commonwealth on the effective date of this section.

Legislature intent – the strong presumption of constitutionality enjoyed by acts of the General Assembly and the
heavy burden of persuasion on the party challenging an act have been so often stated as to now be axiomatic.
Legislation will not be invalidated unless it clearly, palpably, and plainly violates the Constitution, and any
doubts are to be resolved in favor of a finding of constitutionality. (Michigan Lawmakers) sought to dissuade
criminal defense attorneys from attempting to overutilize the insanity defense. They hoped to reduce the
incidence of insanity acquittals. Also, to protect society by incarcerating mentally disturbed, dangerous accusees
who might otherwise be found not guilty by reason of insanity and subsequently released into the community.
Implemented a systemic program of psychiatric evaluation and treatment. PA adopted the verdict of guilty but
mentally ill with the intention of correcting this shortcoming of the criminal justice system.

Guilty but mentally ill statute: 1) a class of defendants who have committed a crime and are adjudged guilty of
the crime but mentally ill.
Intent – the legislature has determined that persons classified as guilty but mentally ill either lack the capacity to
appreciate the wrongfulness of their conduct or are unable to conform their conduct to the requirements of the
law. However, the General Assembly determined that this classification of individual is capable of possessing the
requisite mens rea for the attachment of criminal responsibility. In other words, those individuals who have been
found guilty but mentally ill are both “sick” and “bad” (i.e., criminally responsible).
2) Defendants who have been adjudged insane are defined as laboring under a defect of reason so grave as not to
have known the nature and quality of the acts, they were unable to comprehend that what they were doing was
wrong. In this classification, the legislator found that such individuals were incapable of forming the intent
necessary to impose criminal liability. Stated more simply, these individuals are “sick,” but are not “bad.” Given
the differing nature of the mental disabilities potentially involved with individuals considered quote mentally ill
and one adjudged “legally insane,” are lawmakers rationally formed each classification and determined that the
former class should be treated and punished for their conduct, and the latter should be treated but not
incarcerated. “Consequences of guilty but mentally ill verdict or plea.”

Com. v. Zewe – D had suffered from mental illness 3 years prior and was discharged from the Navy as a result. D
was dx with paranoid schizophrenic and prescribed medication. D only took meds sporadically. As a result, his
condition fluctuated, but at no point was he outwardly violent. One day D’s neighbors were having a family
reunion and D entered their year heavily armed and began firing into the group of people. Several people were
shot and killed, and everyone was injured. D’s facial expressions were angry but did not resist arrest. D attempted
to establish legal insanity at the time of crime. Convicted of mentally ill on 2 counts of murder of the 1 st degree
and reckless endangerment of another person.
RULE: The law in PA states that if there is sufficient evidence for a defendant to raise the issue of insanity, the
burden is on the Commonwealth to prove the defendant’s sanity beyond a reasonable doubt. This places the
decision of whether or not the defendant is legally insane within the discretion of the jury rather than the judge,
who decides matters of law. Therefore, because the determination of the defendant’s sanity is a matter of fact to
be decided by the jury. The law in PA is that evidence of lay witnesses alone can be sufficient to establish the
sanity of a defendant who has offered expert testimony as to his insanity. Differential treatment of citizens is
permissible where the actions are based on criteria which are reasonably related to the purpose of a legislative
enactment and facts exist justifying the disparate treatment. In order for § 314 to pass constitutional muster on
equal protection grounds, the classification drawn by the statute “must be reasonable, not arbitrary, and must rest
upon some ground of difference having a fair and substantial relation to the legislation so that all persons
similarly circumstanced shall be treated alike.

Com. v. Trill – Case defines the legislative intent! - D went into a bar and requested take out. Bartender asked
him to get out from behind the bar and that they did not do take out. D showed bartender a rifle in his coat. D then
demanded money from the cash register. Bartender needs the manager to open the register. D left the building and
police arrested him, finding the rifle was a toy gun.

Necessity
The defense of necessity does not arise from a “choice” of several course of action; instead, it is based on a real
emergency. It can be asserted only by an actor who is confronted with such a crisis as a personal danger (to
oneself or others), a crisis which does not permit a selection from among several solutions, some of which do not
involve criminal acts.

Choice between two evils

Necessity can be raised
Duress
Notes:
 Duress is a defense to criminal culpability
 Defense if unlawful threatened force would have caused a reasonable person to commit the crime in
question.
 Section 309 does not create an exception for any particular offense. The General Assembly could have
placed an express exception for murder into the statutory test, as some other states have done. B/c the
Legislature chose not to include such an exception, the court concludes that it did not intend to preserve
the common law rule in this regard. So, the defense of duress is available in PA as to a charge of 1 st
degree murder. (Com. v. Markman)
 Even where the evidence is sufficient to establish the elements of the duress defense set forth in §
309(a), however, the defendant still may not be entitled to avail himself of the defense under the
exception in Section 309(b).
 According to that exception, the duress defense is not available if the evidence establishes that the
defendant recklessly placed himself in a situation where it was probable that he would be subject to
duress.
 Therefore, the test for determining whether the defendant acted recklessly under § 309 is a HYBRID
OBJECTIVE-SUBJECTIVE one. MPC § 2.02. The trier of fact must decide whether the defendant
disregarded a risk that involves a gross deviation from what an objective “reasonable person” would
observe if he was subjectively placed “in the [defendant’s] situation.” Thus, in making its determination,
the trier of fact must again take into account the stark tangible factors that differentiate the defendant
from another person and the salient situational factors surrounding the defendant. MPC § 2.02.

§ 309 Duress
(a) General rule. –It is a defense that the actor engaged in the conduct charged to constitute an offense
because he was coerced to do so by the use of, or a threat to use, unlawful force against his person or the
person of another, which a person of reasonable firmness in his situation would have been unable to resist.

(b) Exception. –The defense provided by subsection (a) of this section is unavailable if the actor recklessly
placed himself in a situation in which it was probable that he would be subjected to duress. The defense is
also unavailable if he was negligent in placing himself in such a situation, whenever negligence suffices to
establish culpability for the offense charged.

§ 302 (b) - Recklessly is defined as follows:

A person acts recklessly with respect to a material element of an offense when he consciously disregards a
substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be
of such a nature and degree that, considering the nature and intent of the actor’s conduct and the circumstances
known to him, its disregard involves a gross deviation from the standard of conduct that a reasonable person
would observe in the actor’s situation.

Com. v. Markman – D was convicted of 1st degree murder. D was dating Co-D (bf), when BF met V. BF and V
started secretly dating. D found out and forced BF to break up with V. D became worried that BF didn’t really
break up with V. BF and D made a plan to lure V to the house. D hid in the bedroom when V came over. D heard
V crying out b/c BF hit her in the hand with a hammer. D and BF acted together to subdue V. D held V down
while BF strangled and killed V. D and BF disposed of the body in an abandoned trunk of a car, stolen V’s stuff
to a pawn shop, and stole her car and went to VA. D claimed duress defense because BF was abusive.
RULE: While there are omissions that provide circumstantial evidence of recklessness at the time of the
kidnapping and murder, it is noted that Section 303(b) (culpability), by its terms, focuses upon the acts or
omissions of a defendant in placing himself into a duress situation in the first instance.
REASONING: The court concludes there is conflicting evidence on the issue of whether D was reckless, and
D’s actions did not remove the duress issue from the jury’s purview. Although one might argue that D
consciously disregarded a substantial and unjustifiable risk that she would be physically assaulted by BF in the
future, neither party contends that being a victim of DV suggests a probability of being coerced into victimizing a
3rd party. D’s failing to withdraw from efforts to cover up the completed crimes after they occurred do not
constitute a firm enough basis to remove the question of duress from the jury.
DISSENT: The exception under § 309(b) applies if the actor recklessly places himself in a situation where duress
is likely. The evidence leaves no question that, even if BF threatened D, she acted recklessly and repeatedly
placed herself in situations where it was probable, she would be subjected to duress. Holding as a matter of law,
the defense of duress was not available to D.

Com. v. Demarco – Friend and D called police after a 3rd party damaged friend’s car. Police asked friend and D to
give written statements of what occurred. When the 3rd party was charged, D had to testify at trial, and stated his
written statements were not true. D was charged with perjury, false swearing, unsworn falsification to authorities,
and false reporting.
RULE: When the general assembly enacted § 309, it abrogated the common law test, finding it was too difficult
for defendants to meet. Since the enactment, this Court has repeatedly recognized that the test for determining
whether the evidence supports the duress defense is the one set forth in the statute, rather than the common law
test followed below.
As set forth by the General Assembly in § 309, in order to establish the duress defense in this Commonwealth,
there must be evidence that: (1) there was a use of, or threat to use, unlawful force against the defendant or
another person; and (2) the use of, or threat of use, unlawful force was of such a nature that a person of
reasonable firmness in the defendant’s situation would have been unable to resist it. Thus, to establish the duress
defense under § 309, unlike under the common law rule, the force or threatened force does not need to be of
present and impending death or serious bodily injury. Instead, the relevant inquiry under § 309 is whether the
force or threatened force was a type of unlawful force that “a person of reasonable firmness in [the defendant’s]
situation would have been unable to resist.” This test is a HYBRID OBJECTIVE-SUBJECTIVE one.
While the trier of face must consider whether an objective person of reasonable firmness would have been able to
resist the threat, it must ultimately base its decision on whether that person would have been able to resist the
threat if he was subjectively placed in the defendant’s situation. Therefore, in making its determination, the trier
of fact must consider “stark, tangible facMPC § 2.09 Although the trier of face is not to consider the defendant’s
particular characteristics of temperament, intelligence, courageousness, or moral fortitude, the fact that a
defendant suffers from “a gross and verifiable” mental disability “that may establish irresponsibility” is a relevant
consideration. Moreover, the trier of fact should consider any salient situational factors surrounding the defendant
at the time of the alleged duress, such as the severity of the offense the defendant was asked to commit, the nature
of the force used or threatened to be used, and the alternative ways in which the defendant may have averted the
force or threatened force.

Involuntary Intoxication
This raises the mens rea issues.

With respect to culpability: § 308 – Intoxication or drugged condition – Neither voluntary intoxication nor
voluntary drugged condition is a defense to a criminal charge, not may evidence of such conditions be introduced
to negative [negate] the element of intent of the offense, except that evidence of such intoxication or drugged
condition of the defendant may be offered by the defendant whenever it is relevant to reduce murder from a
higher degree to a lower degree of murder.

 Intent – Specific intent crime – intoxication could be considered in determining whether a defendant was
capable of forming the specific intent necessary to commit the crime charged. Defense is broad!
 Available when intoxication is extreme in general intent crimes.
 Available in strict liability crimes when intoxication is extreme if intoxication was such that the accused
did not know the nature or quality of his act.
 In PA (sometimes argued, but rarely argued successfully) – this is an Actus Reus! Focus on a lack of
voluntary-ness of the act.

Four different kinds of involuntary intoxication have been recognized:

1. Coerced intoxication (duress) (go-to defense)
2. Pathological intoxication (unknown susceptibility)
3. Intoxication by innocent mistake (substance unknown)
4. Unexpected intoxication resulting from the ingestion of a medical prescribed drug.

**Voluntary intoxication is a defense if it negates D’s capacity to possess the crime’s required mental element.
It can negate the specific intent to kill and reduce the crime of murder from 1 st to 3rd degree. In order to be entitled
to a charge of voluntary intoxication, the evidence must show that the defendant was so overwhelmed or
overpowered by drugs to the point of losing his faculties or sensibilities at the time the crime was committed. (ex.
hallucinogenic)
 General intent crimes (reckless or negligent mens rea) cannot be avoided by an intoxication defense.
 Strict liability crimes cannot be avoided by intoxication defense.
 Limitation: Accused must have “formed” the intent while intoxicated. Thus, one who forms the intent
and then drinks to build up courage to do an act has no defense.
 Mens Rea – while there are several approaches to evaluating the Mens Rea a portion of criminal activity
involving an intoxicated defendant, the most common approach distinguishes between general-intent and
specific-intent crimes. Under this common law approach, voluntary intoxication is not a defense to
general-intent crimes. Voluntary intoxication is a defense to specific-intent crimes.
 Special rule for homicide - two states, Virginia and Pennsylvania, limit the defense for voluntary
intoxication to 1st degree murder prosecutions. In states that recognize the defense in all specific intent
crimes, if the crime of “murder” is divided into degrees, a defendant may generally introduce evidence
that his intoxication prevented him from being able to form the requisite state of mind for first degree
murder.
 MPC § 2.08(1) - provides that intoxication is a defense if it “negatives an element of the offense.” The
common law “general intent” / “specific intent” distinction does not apply.

Com. v. Griscom – D was driving under the influence of alcohol and suspended license. D contends that his
bipolar disorder (manic depression) and alcoholism, and the mental state brought about by these illnesses, were
relevant defense to the charged.
RULE: The court has previously held that involuntary intoxication cannot as a matter of law be established
through evidence showing that the criminal defendant was a chronic alcoholic incapable of voluntarily refraining
from ingestion of alcohol.
REASONING: Court concludes that bipolar disorder and alcoholism are not relevant defenses. NO PA court
(except one) has yet to hold involuntary intoxication as a viable defense.
Entrapment
§ 313 Entrapment
 A defendant, although predisposed to commit a minor or lesser offense, is entrapped in
committing a greater offense subject to greater punishment.
 Often asserted in narcotics matters, typically reverse sting cases, in which government agents
determine the amount of drugs a target will purchase.
 Sentencing entrapment or manipulation is similar to traditional notions of entrapment in that it
requires extraordinary misconduct by the government.
 Note – It differs from classic entrapment in that it is not a complete defense to
criminal charges and therefore, cannot serve as a basis for acquittal. Instead, it
provides a convicted defendant the opportunity for a reduced sentence, typically in
the form of a downward departure from the sentencing guidelines. It can also be
used to exclude one of several criminal transactions including a sentencing scheme.
 PA applies the objective test, so PA looks at whether the officer's conduct created a substantial
risk that an offense would be committed by innocently disposed person. (Fed court uses
subjective approach)
 The standard typically applied in such cases, namely, the existence of "outrageous government
conduct" or "extraordinary government misconduct" which is designed to and results in an
increased sentence for the convicted defendant. This standard presents a heavy burden for the
defendant seeking a sentence reduction. Sentencing for entrapment/manipulation is difficult to
 prove; it is not established "simply by showing that the idea originated with the government or
that the conduct was encouraged by it, … or that the crime was prolonged beyond the first
criminal act… or exceed in degree of kind what the defendant has done before."

(a) General rule. –A public law enforcement official or a person acting in cooperation with such an
official perpetrates an entrapment if for the purpose of obtaining evidence of the commission of an offense,
he induces or encourages another person to engage in conduct constituting such offense by either:
(1) making knowingly false representations designed to induce the belief that such conduct is not
prohibited; or
(2) employing methods of persuasion or inducement which create a substantial risk that such an
offense will be committed by persons other than those who are ready to commit it.

(b) Burden of proof. –Except as provided in subsection (c) of this section, a person prosecuted for an
offense shall be acquitted if he proves by a preponderance of evidence that his conduct occurred in
response to an entrapment.
 In states with objective approach - defendant has an entire burden of production and persuasion is
on the defendant.

(c) Exception. –The defense afforded by this section is unavailable when causing or threatening bodily
injury is an element of the offense charged and the prosecution is based on conduct causing or threatening
such injury to a person other than the person perpetrating the entrapment.

The objective approach – conceives the entrapment defense as aimed at deterring police wrongdoing. The
defense provides a sanction for overzealous and reprehensible police behavior comparable to the exclusionary
rule. The focus of the defense is on what the police do and not on what kind of person the particular defendant is,
whether he is innocent or predisposed to crime. The objective approach evaluates the police conduct to determine
whether there is substantial risk that the offense will be committed by those innocently disposed. Focuses on the
conduct of the police and will not be concerned w/ the D’s prior criminal activity or other indicia of a
predisposition to commit crime. Whether the inducement offered was such that it would overpower the resistance
of the hypothetical reasonable man.

Com. v. Weiskerger – This case explains the legislatures intent! - D was convicted of criminal conspiracy,
bribery in official and political matters, and violations of public official ethics act.
RULE:

Com. v. Marion – D was convicted for delivery of weed, possession with intent to deliver a controlled substance
(PWID), possession of small amount of weed for personal use, and criminal use of communication facility.
Confidential informant contacted D for weed, and when he came to purchase it, an undercover officer arrested
him. D argued that CI was his friend, and police exploited their friendship to set D up as a drug dealer.
RULE: Under the objective test for entrapment, these would be facts that go to the course of conduct of a
government officer of agent that would fall below standards to which common feelings respond, for the proper
use of government power.
REASONING: Police did no more than afford D an opportunity to sell drugs. Such actions are not considered
sufficiently outrageous police conduct to support n entrapment defense as a matter of law.

Com. v. Lucci – D convicted for drug sales to paid government informers for 6 months. D argues that he was
entrapped as a matter of law. And that the CI contacted D within 2 weeks of D’s release from a drug rehab, rose
to the level of egregiousness to support entrapment as a matter of law.
RULE: The courts refuse to convict an entrapped defendant, not b/c his conduct falls outside the proscription of
the statute, but b/c even if his guilt be admitted, the methods employed on behalf of the government to bring
about conviction cannot be countenanced. Based on the operative facts of the case. Although entrapment
necessarily must be decided on a case-by-case basis, impermissible activity may include appeals to sympathy,
friendship, the possibility of exorbitant gain and so forth. PA’s entrapment statute addresses the concern over
unconventional investigatory methods, and the potentialities inherent in these overreaching tactics. As such, the
analysis only incidentally involves a particular defendant. All we decided is that the government has a
responsibility to ensure that the tactics used by its informants do not fly in the face of the goal of the state to
reduce, no increase, illegal drug use, even if by only one person.
REASONING: Court agrees that conduct of the government agent rises to the level of outrageousness supporting
our finding of entrapment as a matter of law.

Com. v. Petzold (Sentencing Entrapment) – D sold one quarter pound of weed to a confidential informant who
was working with state police. CI attempted to purchase more drugs from D w/o success. D explained that he was
“laying low” b/c he suspected he was being investigated by police. Police decided to do a reverse sting operation
wherein the CI would provide a weed source to D. CI told him about someone they could get 10 lbs from, and
they went to pick up the drugs. Drugs were delivered by an undercover cop, once the transfer took place, D was
arrested.
RULE: Sentencing reduction is an appropriate and just response to outrageous government conduct designed
solely to increase a defendant’s term of incarceration. The benefits of reverse sting operations must be balanced
against the danger of granting law enforcement officials unlimited power to define the scope of criminal
culpability in a given case.
REASONING: The transcript of the conversation concluded that the government did not behave in an
outrageous manner, nor was appellant coerced into buying more weed than he was inclined to purchase. Despite
the general approval of sentencing entrapment principles, D’s circumstances do not provide a basis for sentence
reduction.

Alibi
Alibi Definition - A defense that places the defendant at the relevant time in a different place than the scene
involved and so removed therefrom as to render it impossible for him to be the guilty party.
 An alibi defense places one elsewhere when the offense was committed, and by reason of time,
place and distance renders it impossible for him to have done the deed.
 It is possible to assert an alibi even when a crime occurs in the same building where the accused is
located.
 If a convict is accused of stabbing a guard in the basement of a penitentiary and claims he was
locked in a cell on the fourth floor when the crime was committed, he has asserted an alibi
defense, because he was "in a different place than the scene involved and so removed therefrom
as to render it impossible for him to be the guilty party."
 It is not necessary for an alibi defense to be corroborated in order to constitute an alibi.
 All required an alibi instruction when the alibi defense had been presented solely by the
unsupported testimony of the defendant.
 Evidence can be presented by testimony

Com. v. Roxberry – D was charged with kidnapping, rape, IDSI, robbery, and theft in connection with an assault.
D testified he was 4 blocks away from the crime scene, drinking at a bar during the crime. Prosecution stated D’s
testimony did not constitute an alibi b/c it failed to preclude the possibility that D committed the crimes, so no
instruction was warranted. Second, that D’s alibi testimony was unsupported by other evidence nd that a jury
charge is not required in such a circumstance.
RULE: There is no minimum or threshold quantum of physical separation necessary for a defense to constitute
an alibi, so long as the separation makes it impossible for the defendant to have committed the crime. It is
theoretically possible to assert an alibi even when. crime occurs in the same building where the accused is
located. It is not, and never has been, necessary for an alibi defense to be corroborated in order to constitute an
alibi.
REASONING: D’s defense is weak without witness testimony, but is defense is nonetheless an alibi. Court held
that jury should have been given instruction on alibi defense. Court refused to establish a minimum distance
requirement b/w the scene of the crime and where the D claims to have been when the crime occurred in order for
D to assert an alibi defense.

Com. v. Johnson – Police were conducting a drug surveillance and observed D exchange a small green packet w/
another person for cash. Officer lost sight of D for 20 seconds and then observed D place a brown paper bag
under an abandoned tire. Officer retrieved the bag and found money and drugs, and D was arrested. At the time of
arrest, D was working on a parked car with some other people. Car was 150 feet from where Officer saw D hide
the bag.
RULE: All that is required for an alibi defense is that the D b/c of separation, could not possibly have committed
the crime.
REASONING: The testimony placing D at the parked car does not establish an alibi since D was not removed
from the scene of the crime and since it was physically possible for him to have committed the crime. Not entitled
to an alibi instruction.