Supreme Court of Pennsylvania: Conspiracy to Commit Third Degree Murder is a Cognizable Charge

In Commonwealth v. Fisher, decided on October 30, the Supreme Court of Pennsylvania issued its decision on a puzzling logical quandary: Can an individual be found guilty of conspiracy to commit third degree murder? On its face, and according to appellee/defendant Nashir Fisher, such a charge is a “legal nullity”, as one cannot possibly intend to commit an unintentional killing. The Supreme Court of Pennsylvania, however, after carefully parsing the language of Pennsylvania statutes, decided that such a charge is in fact cognizable.

In March 2008, Nashir Fisher, Kinta Stanton, and Ameer Best, all teenagers at the time, severely beat 36-year-old Sean Conroy in Philadelphia. While the boys committed the act on a dare and did not intend to kill the man, Conroy succumbed to his wounds and died when he had an asthma attack. After being tried as adults in a jury trial, Fisher and Best were convicted of third degree murder and conspiracy to commit third degree murder, and Stanton was convicted of involuntary manslaughter and conspiracy to commit third degree murder. Fisher was sentenced to 12.5 to 25 years imprisonment for third degree murder and 10 to 20 years for conspiracy to commit third degree murder. Fisher appealed his conviction of conspiracy to commit third degree murder, and the Superior Court vacated the conviction for that charge. The Commonwealth appealed to the Supreme Court of Pennsylvania, which granted allowance of appeal.

In his appeal, Fisher argued that since conspiracy is a specific intent crime, and third degree murder is murder absent specific intent, it is a “logical impossibility” to conspire to commit third degree murder. The Commonwealth, however, did not read the third degree murder statute so narrowly. 18 Pa.C.S.A. § 2502(c) says that a murder is of the third degree when it is not a murder of the first or second degree. Since the statute is silent on the required mental state, 18 Pa.C.S.A. § 302(c) provides that the requisite mental state is intentional, knowing, or reckless. Therefore, the Commonwealth posited that conspiracy to commit third degree murder is a cognizable charge, since it is possible to intend to kill somebody recklessly. In this case, the recklessness (or more generally, malice aforethought) was the act of beating Conroy.

The Supreme Court of Pennsylvania agreed with the Commonwealth’s reading of the statute, in that third degree murder requires that the murder be committed intentionally, knowingly, or recklessly, rather than strictly without specific intent, as Fisher argued. Furthermore, the court clarified how third degree murder has been defined through case law. The court in Commonwealth v. Santos said

“[T]o convict a defendant of…third degree murder, the Commonwealth need only prove that the defendant killed another person with malice aforethought[, …which is] not only a particular ill-will, but [also a] wickedness of disposition, hardness of heart, [or] recklessness of consequences”.

The court also quoted Commonwealth v. Meadows, which said “[to convict a defendant of third degree murder,] the Commonwealth need not prove, nor even address, the presence or absence of a specific intent to kill.” Since it is possible to intend to kill someone recklessly or with malice aforethought, and yet still without specific intent, the court concluded that conspiracy to commit third degree murder is not as paradoxical as it sounds, and is indeed a cognizable charge. The Superior Court’s decision was reversed.