The opinion
J-A13043-20
2020 PA Super 208
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
WALDEMAR RIVERA, :
:
Appellant : No. 2101 EDA 2019
Appeal from the Judgment of Sentence Entered March 1, 2019
in the Court of Common Pleas of Lehigh County
Criminal Division at No(s): CP-39-CR-0004317-2017
BEFORE: BENDER, P.J.E., LAZARUS, J. and STRASSBURGER, J.*
OPINION BY STRASSBURGER, J.: Filed: August 25, 2020
Waldemar Rivera (Appellant) appeals from the March 1, 2019
judgment of sentence1 imposed after a jury found him guilty of second-
degree murder,2 robbery, burglary, and three counts of conspiracy (second-
degree murder; robbery; burglary). Upon review, we vacate Appellant’s
convictions and sentences for conspiracy to commit second-degree murder
and conspiracy to commit burglary, and affirm his judgment of sentence in
all other respects.
1 Appellant purported to appeal from the June 21, 2019 order denying his
post-sentence motion. “In a criminal action, an appeal properly lies from
the judgment of sentence made final by the denial of post-sentence
motions.” Commonwealth v. Shamberger, 788 A.2d 408, 410 n.2 (Pa.
Super. 2001) (en banc) (citation omitted). We have corrected the caption
accordingly.
2 In Pennsylvania, felony-murder and second-degree murder refer to the
same offense, codified at 18 Pa.C.S. § 2502(b), and are referred to
interchangeably in our jurisprudence and within this opinion.
*Retired Senior Judge assigned to the Superior Court.
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We begin with the following factual summary provided by the trial
court.
Lehigh County Homicide Task Force was dispatched to a
body discovered [] on August 13, 2017, in the city of
Allentown[.] Police arrived and found [Jermaine Jerome Taylor
(Victim)], deceased in his bedroom on the third floor of his
residence. Numerous shell casings were found scattered on the
floor but no firearms were located on scene. Police learned that
[Victim’s] 10-year-old daughter was present at the time of the
shooting and [was] hiding in the room. The investigation
revealed that [Victim] was shot and killed during a home
invasion robbery by a group of four individuals including
[Appellant].
While canvassing the crime scene, the police noticed blood
droplets dispersed throughout the residence. Blood droplets
were discovered throughout the bedroom, down the stairs, and
outside the residence. Police followed the blood trail through the
city streets and discovered a suspect, later revealed to be co-
conspirator Isaac Navarro, with his hand bandaged. Navarro
was interviewed and the information eventually led the police to
the arrest of the other conspirators.
The co-conspirators all testified at trial about their role in
the conspiracy that led to the death of [Victim]. The
conspirators believed that [Victim] was involved in dealing drugs
and had money and drugs in his home. A scheme was formed
by [Appellant] and his friends to rob [Victim] through threat of
force and the group armed themselves with a gun. [Appellant]
and his co-conspirators proceeded to sneak through alleyways
on foot, and under cover of darkness broke into [Victim’s]
residence.
Upon entering the residence, the group assaulted [Victim]
and threatened him with a gun. The assailants dragged [Victim]
upstairs and demanded that he open his safe. [Victim] opened
his safe, but grabbed his .40 caliber handgun, and fired a single
shot which struck co-conspirators Brandon Eanes and Sasha
Vargas. [] Navarro also injured his hand from striking [Victim]
repeatedly. The testimony at trial revealed that [Victim] was
then shot multiple times in the presence of his minor daughter
and left for dead. [Victim’s] cause of death was multiple
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gunshot wounds. The testimony placed the gang of thieves’ gun
in the possession of [Appellant]. The group fled on foot with
[Victim’s] gun, a samurai sword, cash, and some marijuana.
Surveillance photos and video were recovered from nearby
alleyways confirming the presence of all conspirators. [Victim’s]
handgun was turned in to the police by [Appellant’s] mother a
few months after the robbery. The .380 caliber firearm used to
murder [Victim] was never recovered.
[Appellant] was arrested and interviewed on August 16,
2017, after being provided with his Miranda[3] warnings.
[Appellant] admitted to breaking and entering the residence and
participating in the robbery of [Victim]. However, [Appellant]
claimed [] Eanes had the gun and alleged that he got nothing
from the robbery. [Appellant] asserts that he did not shoot
[Victim].
Trial Court Opinion, 6/21/2019, at 3-4 (footnotes omitted).
Based on the foregoing, Appellant was charged with one count each of
criminal homicide, robbery, and burglary, and three counts of conspiracy
(criminal homicide; robbery; burglary). Appellant proceeded to a jury trial
from February 26, 2019 to March 1, 2019. The jury heard testimony from,
inter alia, Navarro, Eanes, and Vargas. During trial, Appellant attempted
unsuccessfully to locate Victim’s daughter in order to call her as a defense
witness. Therefore, Appellant sought to introduce her videotaped interview
with police, which occurred a few hours after Victim’s death, based on her
being an unavailable witness and the interview qualifying under either the
excited-utterance or present-sense-impression exceptions to the rule against
hearsay. See N.T., 2/28/2019, at 100-04. The trial court denied Appellant’s
3 Miranda v. Arizona, 384 U.S. 436 (1966).
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request, concluding that Victim’s daughter was not unavailable for purposes
of the hearsay rule, and regardless, the interview did not fall within either
exception. Id. at 107-08.
On March 1, 2019, the jury found Appellant guilty as indicated above.4
Appellant was sentenced that same day to the following terms of
incarceration: life imprisonment without parole for second-degree murder;
10 to 20 years for robbery; 10 to 20 years for burglary; 20 to 40 years for
conspiracy to commit criminal homicide;5 10 to 20 years for conspiracy to
4As to Appellant’s conviction of conspiracy to commit second-degree
murder, we note the following.
The Crimes Code does not expressly set forth that one can be
found guilty of second-degree murder as a conspirator. Other
jurisdictions have determined that one cannot conspire to
commit felony murder. This Court has also repeatedly noted
that one cannot attempt to commit felony murder because an
attempt is a specific intent crime, as is conspiracy. We note,
however, that our Supreme Court has concluded that one can
conspire to commit third-degree murder, which does not require
proof of a specific intent to kill.
Commonwealth v. Mitchell, 135 A.3d 1097, 1101 (Pa. Super. 2016)
(citations omitted). Because Appellant does not challenge his conspiracy to
commit second-degree murder conviction on this basis, and we ultimately
vacate this conviction for reasons discussed infra, we need not consider this
further.
5 As noted supra, the jury found Appellant guilty of conspiracy to commit
second-degree murder. The trial court sentenced Appellant to 20 to 40
years of incarceration for conspiracy to commit second-degree murder, but
subsequently changed the sentencing sheet to read “conspiracy to commit
criminal homicide,” while keeping the sentence the same. See Corrected
Sentence Sheet, 3/4/2019. This was error. Inchoate crimes have the same
maximum sentences as the underlying object crime. See Commonwealth
(Footnote Continued Next Page)
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commit robbery; and 10 to 20 years for conspiracy to commit burglary. All
sentences were set to run concurrently, except for the 10-to-20-year term of
incarceration for conspiracy to commit robbery, which was ordered to run
consecutively to the other five charges.
On March 6, 2019, Appellant filed a post-sentence motion, alleging
that the felony-murder rule6 is unconstitutional, the evidence was insufficient
and the verdict was against the weight of the evidence, the consecutive
sentence was “excessive and unreasonable[,]” and the trial court erred in
excluding the videotaped interview of Victim’s daughter as hearsay not
subject to an exception. Post-Sentence Motion, 3/6/2019, at 2. The trial
court ordered Appellant and the Commonwealth to file briefs in response to
(Footnote Continued) _______________________
v. Hoke, 962 A.2d 664, 668 (Pa. 2009), citing 18 Pa.C.S. §§ 106(b) and
905(a). Therefore, the trial court should have sentenced Appellant at this
count to life imprisonment without “correcting” the sentence sheet in conflict
with the jury’s verdict. However, we need not resolve these sentencing
issues, because, as discussed infra, we vacate Appellant’s conspiracy to
commit second-degree murder conviction and sentence.
6 As discussed infra, our Supreme Court has described the felony-murder
rule thusly.
When an actor engages in one of the statutorily enumerated
felonies and a killing occurs, the law, via the felony-
murder rule, allows the finder of fact to infer the killing was
malicious from the fact that the actor engaged in a felony of
such a dangerous nature to human life because the actor, as
held to a standard of a reasonable man, knew or should have
known that death might result from the felony.
Commonwealth v. Legg, 417 A.2d 1152, 1154 (Pa. 1980) (footnote
omitted).
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Appellant’s post-sentence motion. Order, 3/20/2019. The parties complied.
On June 21, 2019, the trial court denied Appellant’s post-sentence motion by
order and opinion.
This timely filed notice of appeal followed.7 On appeal, Appellant
raises the following issues.
[1] Whether the trial court erred in denying [Appellant’s] motion
regarding an eyewitness being unavailable?
[2] Whether the evidence presented at trial was insufficient to
support the verdict and whether the verdict was against the
weight of the evidence?
[3] Whether the trial court erred in imposing a consecutive
sentence for robbery?
[4] Whether the felony[-]murder conviction should be
overturned?
Appellant’s Brief at 9 (suggested answers and unnecessary capitalization
omitted; reordered for ease of disposition).
Admission of Videotaped Statement
We begin with Appellant’s argument that the trial court erred in
precluding the admission of the videotaped police interview of Victim’s
daughter. Appellant’s Brief at 27.8 Specifically, Appellant avers that she
7 Appellant and the trial court complied with Pa.R.A.P. 1925. In lieu of a
Rule 1925(a) opinion, the trial court referred us to its June 21, 2019 opinion
and order denying Appellant’s post-sentence motion. Order, 8/14/2019.
8We note that Appellant also argues that the trial court erred in denying his
motion to require the attendance of Victim’s daughter at trial because she
was a material witness and the Commonwealth failed to disclose her change
(Footnote Continued Next Page)
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was unavailable for purposes of the rule against hearsay, and her
statements during the interview were admissible under either the excited-
utterance or present-sense-impression exceptions. Appellant’s Brief at 29-
30.
We begin with our standard of review.
An appellate court’s standard of review of a trial court’s
evidentiary rulings[,] which include rulings on the admission of
hearsay[,] is abuse of discretion. However, whether a defendant
has been denied his right to confront a witness under the
Confrontation Clause of the Sixth Amendment to the United
States Constitution, made applicable to the States via the
Fourteenth Amendment, is a question of law, for which our
(Footnote Continued) _______________________
of address. See Appellant’s Brief at 27, 29. Additionally, Appellant alleges
that the interview was nontestimonial. Id. at 30-31. However, our review
of the record, including Appellant’s occasional pinpoint citations to the
reproduced record, reveals the record is devoid of any such motion, asserted
discovery violation, or claim that the interview was admissible because it
was nontestimonial. Accordingly, Appellant failed to preserve these issues
for appeal. See Pa.R.A.P. 302; Commonwealth v. Baker, 963 A.2d 495,
502 (Pa. Super. 2008) (finding issue waived where Baker failed to point to
the location in the record where the claim was preserved, and noting that
“the transcripts in this case are voluminous, and it is not the responsibility of
this Court to scour the record to prove that an appellant has raised an issue
before the trial court, thereby preserving it for appellate review”).
Moreover, as to Appellant’s nontestimonial argument, Appellant
invokes Davis v. Washington, 547 U.S. 813 (2006), which distinguished
testimonial and nontestimonial hearsay for purposes of violations of the
Confrontation Clause, confirming that the protections of the Confrontation
Clause attach only to testimonial hearsay statements. However, Appellant
did not seek to exclude the video as violating his Confrontation Clause
rights; he sought to admit the video. To the extent he argues that a
hearsay statement being nontestimonial is independent grounds for
admissibility, it is not, and he does not provide any authority other than
Davis, which does not support such an assertion, or any argument. Thus,
he has failed to develop this issue in any meaningful way, and we also find
waiver on this basis.
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standard of review is de novo and our scope of review is
plenary.
In re N.C., 105 A.3d 1199, 1210 (Pa. 2014) (citations omitted).
“Hearsay is an out-of-court statement offered for the truth of the
matter asserted. Hearsay generally is inadmissible unless it falls within one
of the exceptions to the hearsay rule delineated in the Pennsylvania Rules of
Evidence.” Commonwealth v. Sandusky, 203 A.3d 1033, 1054 (Pa.
Super. 2019) (citation and quotation marks omitted). At trial, Appellant
argued Victim’s daughter was unavailable and sought to introduce the
statement under the present sense impression or excited utterance
exception.
(a) Criteria for Being Unavailable. A declarant is considered
to be unavailable as a witness if the declarant:
(1) is exempted from testifying about the subject matter of
the declarant’s statement because the court rules that a
privilege applies;
(2) refuses to testify about the subject matter despite a
court order to do so;
(3) testifies to not remembering the subject matter, except
as provided in Rule 803.1(4);
(4) cannot be present or testify at the trial or hearing
because of death or a then-existing infirmity, physical
illness, or mental illness; or
(5) is absent from the trial or hearing and the statement’s
proponent has not been able, by process or other
reasonable means, to procure:
(A) the declarant’s attendance, in the case of a
hearsay exception under Rule 804(b)(1) or (6); or
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(B) the declarant’s attendance or testimony, in the
case of a hearsay exception under Rule 804(b)(2),
(3), or (4).
Pa.R.E. 804(a). If a witness is unavailable pursuant to subsection (a), the
following types of statements will not be subject to exclusion by the rule
against hearsay.
(1) Former Testimony…
(2) Statement Under Belief of Imminent Death…
(3) Statement Against Interest…
(4) Statement of Personal or Family History…
(5) Other exceptions (Not Adopted) …
(6) Statement Offered Against a Party That Wrongfully Caused
the Declarant’s Unavailability…
Pa.R.E. 804(b).
At the outset, even if we were to conclude that the trial court should
have found Victim’s daughter was unavailable, Appellant would not be
entitled to relief pursuant to Rule 804. Although he claimed she was
unavailable and a material witness, Appellant did not invoke any of the
subsection (b) exceptions. This is unsurprising, as it is evident that none of
them is applicable. See id; see also Trial Court Opinion, 6/21/2019, at 15
(noting that Appellant “fails to assert which unavailable exception applies”
and that “[a]s the Commonwealth aptly explains[,] this rule appears to be
completely inapplicable”). Accordingly, we need not address the trial
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court’s finding of unavailability, and instead turn to Appellant’s argument
that the statement was admissible under the present-sense-impression or
excited-utterance exceptions, mindful of the following.
The following are not excluded by the rule against hearsay,
regardless of whether the declarant is available as a witness:
(1) Present Sense Impression. A statement describing
or explaining an event or condition, made while or
immediately after the declarant perceived it. When the
declarant is unidentified, the proponent shall show by
independent corroborating evidence that the declarant
actually perceived the event or condition.
Comment: …
For this exception to apply, declarant need not be
excited or otherwise emotionally affected by the
event or condition perceived. The trustworthiness of
the statement arises from its timing. The
requirement of contemporaneousness, or near
contemporaneousness, reduces the chance of
premeditated prevarication or loss of memory.
(2) Excited Utterance. A statement relating to a startling
event or condition, made while the declarant was under
the stress of excitement that it caused. When the declarant
is unidentified, the proponent shall show by independent
corroborating evidence that the declarant actually
perceived the startling event or condition.
Comment: …
This exception has a more narrow base than the
exception for a present sense impression, because it
requires an event or condition that is startling.
However, it is broader in scope because an excited
utterance (1) need not describe or explain the
startling event or condition; it need only relate to it,
and (2) need not be made contemporaneously with,
or immediately after, the startling event. It is
sufficient if the stress of excitement created by the
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startling event or condition persists as a substantial
factor in provoking the utterance.
There is no set time interval following a startling
event or condition after which an utterance relating
to it will be ineligible for exception to the hearsay
rule as an excited utterance. In Commonwealth v.
Gore, 396 A.2d 1302, 1305 (Pa. Super. 1978), the
court explained:
The declaration need not be strictly
contemporaneous with the existing
cause, nor is there a definite and fixed
time limit ... Rather, each case must be
judged on its own facts, and a lapse of
time of several hours has not negated
the characterization of a statement as an
“excited utterance.” ... The crucial
question, regardless of the time lapse, is
whether, at the time the statement is
made, the nervous excitement continues
to dominate while the reflective
processes remain in abeyance.
Pa.R.E. 803 (emphasis in original).
As noted supra, Victim’s daughter was interviewed by police a few
hours after the shooting. Accordingly, the trial court concluded in its opinion
denying Appellant’s post-sentence motion that “the videotaped statement
was not a present sense impression” because it “was not made by [Victim’s
daughter] ‘while or immediately after’ she perceived the murder of her
father.” Trial Court Opinion, 6/21/2019, at 13. We agree with the trial
court, and conclude that it did not abuse its discretion in denying admission
of the statement on this basis.
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The trial court also concluded that the statement was not an excited
utterance.
[Victim’s daughter] had the opportunity to reflect on the events
for several hours and was open to outside influences before
ultimately being interviewed at the police station. Furthermore,
an entire videotaped recording of a police interview is entirely
responsive rather than spontaneous. See [Commonwealth v.
Boczkowski, 846 A.2d 75, 96 (Pa. 2004)] (five-year-old child’s
unsolicited statement to neighbors that he heard his mother
screaming in the bathroom was excited utterance).
Trial Court Opinion, 6/21/2019, at 14.
It is beyond peradventure that witnessing one’s father being shot to
death by intruders is a startling event, and likely more so for a child.
However, as the trial court noted and the record confirms, Victim’s daughter
spoke with multiple individuals after the shooting, including Victim’s
girlfriend, who found Victim, and police officers. The proffered videotaped
statements were taken hours after the startling event, in a different location
(the police station), and were given in response to police questioning.9
Contrary to the requirement that “the nervous excitement continues to
dominate while the reflective processes remain in abeyance[,]” Pa.R.E.
803(2) Comment, Appellant’s counsel argued at trial that Victim’s daughter
9 While the statement does not qualify in this case, statements made in
response to police questions are not per se disqualified from the excited
utterance exception. Commonwealth v. Sanford, 580 A.2d 784, 789 (Pa.
Super. 1990), abrogated on separate grounds, Crawford v. Washington,
541 U.S. 36 (2004).
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was “incredibly composed” and “responsive” during the interview. N.T.,
2/28/2019, at 103.
Upon consideration of the foregoing, we cannot conclude that the trial
court abused its discretion in concluding the interview did not qualify as an
excited utterance. Accordingly, Appellant is not entitled to relief.
Sufficiency and Weight of the Evidence
Appellant next argues “that the evidence at trial was insufficient to
sustain the verdicts and that the verdicts rendered were against the weight
of evidence.” Appellant’s Brief at 31.
Preliminarily, we remind Appellant that sufficiency and weight claims
are distinct.
The distinction between these two challenges is critical. A claim
challenging the sufficiency of the evidence, if granted, would
preclude retrial under the double jeopardy provisions of the Fifth
Amendment to the United States Constitution, and Article I,
Section 10 of the Pennsylvania Constitution, whereas a claim
challenging the weight of the evidence if granted would permit a
second trial.
A claim challenging the sufficiency of the evidence is a question
of law. Evidence will be deemed sufficient to support the verdict
when it establishes each material element of the crime charged
and the commission thereof by the accused, beyond a
reasonable doubt. Where the evidence offered to support the
verdict is in contradiction to the physical facts, in contravention
to human experience and the laws of nature, then the evidence
is insufficient as a matter of law. When reviewing a sufficiency
claim the court is required to view the evidence in the light most
favorable to the verdict winner giving the prosecution the benefit
of all reasonable inferences to be drawn from the evidence.
A motion for new trial on the grounds that the verdict is contrary
to the weight of the evidence[] concedes that there is sufficient
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evidence to sustain the verdict. Thus, the trial court is under no
obligation to view the evidence in the light most favorable to the
verdict winner. An allegation that the verdict is against the
weight of the evidence is addressed to the discretion of the trial
court. A new trial should not be granted because of a mere
conflict in the testimony or because the judge on the same facts
would have arrived at a different conclusion. A trial judge must
do more than reassess the credibility of the witnesses and allege
that he would not have assented to the verdict if he were a
juror. Trial judges, in reviewing a claim that the verdict is
against the weight of the evidence do not sit as the thirteenth
juror. Rather, the role of the trial judge is to determine that
notwithstanding all the facts, certain facts are so clearly of
greater weight that to ignore them or to give them equal weight
with all the facts is to deny justice.
Commonwealth v. Widmer, 744 A.2d 745, 751-52 (Pa. 2000) (footnote,
quotation marks, and some citations omitted).
Before we address the merits of Appellant’s sufficiency and weight
claims, we must determine whether Appellant has preserved them for our
review. See Commonwealth v. Richard, 150 A.3d 504, 517 (Pa. Super.
2016). Instantly, the trial court found these claims waived because
Appellant raised them in boilerplate fashion in his post-sentence motion, and
failed to state, with regard to his sufficiency of the evidence claim, which
element or elements the Commonwealth failed to prove beyond a reasonable
doubt. Trial Court Opinion, 6/21/2019, at 7.10
10We note that the trial court did not address the adequacy or inadequacy of
Appellant’s Rule 1925(b) statement because it did not file a Rule 1925(a)
opinion, instead referring us to its June 21, 2019 opinion disposing of the
post-sentence motion.
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In his supporting brief, Appellant did not specify which elements were
not proven, instead arguing “that the evidence presented was insufficient to
prove him guilty of felony murder, robbery or conspiracy to commit
robbery,” because the co-defendants’ testimonies were inconsistent11 and
there was no DNA or fingerprint evidence linking Appellant to the homicide.
Post-Sentence Motion Brief in Support, 5/30/2019, at 6-7. He also assailed
the second-degree murder statute’s inferred malice, which is discussed at
length infra. As to his weight claim, Appellant set forth boilerplate weight-
of-the-evidence case law, and summarily concluded “that the verdict was
against the weight of the evidence for the reasons cited above.” Id. at 7. It
is unclear whether Appellant sought to reference the generic weight-of-the-
evidence case law, the arguments he presented in support of his sufficiency-
of-the-evidence claim, or something else. Finally, in his Pa.R.A.P. 1925(b)
statement, Appellant again raised a combined boilerplate sufficiency and
weight claim: “Motion for a new trial on the grounds that the evidence
presented by the Commonwealth was insufficient to support the verdict
11 This type of argument is actually a challenge to the weight of the
evidence. See Commonwealth v. Wilson, 825 A.2d 710, 713-14 (Pa.
Super. 2003) (citations omitted) (“A sufficiency[-]of[-]the[-]evidence
review, however, does not include an assessment of the credibility of the
testimony offered by the Commonwealth. Such a claim is more properly
characterized as a weight of the evidence challenge. Therefore, we find
[Wilson] has blurred the concepts of weight and sufficiency of the
evidence.”).
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against the weight of the evidence as there was no intent to kill.” Rule
1925(b) Statement (verbatim), 8/13/2019, at ¶ 1.
Regarding Appellant’s sufficiency of the evidence claim,
[w]e have repeatedly held that [i]n order to preserve a challenge
to the sufficiency of the evidence on appeal, an appellant’s
[Rule] 1925(b) statement must state with specificity the element
or elements upon which the appellant alleges that the evidence
was insufficient. … Therefore, when an appellant’s 1925(b)
statement fails to specify the element or elements upon which
the evidence was insufficient[,] ... the sufficiency issue is waived
on appeal.
Commonwealth v. Ellison, 213 A.3d 312, 320-21 (Pa. Super. 2019)
(citations and quotation marks omitted). “Such specificity is of particular
importance in cases where[] the appellant was convicted of multiple
crimes[,] each of which contains numerous elements that the
Commonwealth must prove beyond a reasonable doubt.” Commonwealth
v. Brown, 186 A.3d 985, 990 (Pa. Super. 2018) (citation and quotation
marks omitted).
Instantly, Appellant was convicted of second-degree murder, robbery,
burglary, and three counts of conspiracy. Each of these crimes involves
multiple elements. Appellant’s confusing Rule 1925(b) statement may be
construed, generously, to read as though Appellant is stating that the
Commonwealth failed to prove the element of “intent to kill” beyond a
reasonable doubt. However, none of Appellant’s convictions contains such
an element. Accordingly, he has waived any sufficiency claim on appeal.
See Commonwealth v. Hoffman, 198 A.3d 1112, 1125 (Pa. Super. 2018)
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(finding sufficiency claim waived for failing to specify the element(s) upon
which the evidence was lacking); Commonwealth v. Tyack, 128 A.3d 254,
260 (Pa. Super. 2015) (finding sufficiency claim waived because boilerplate
Pa.R.A.P. 1925(b) statement failed to specify the element(s) the
Commonwealth failed to prove).
Regarding Appellant’s weight of the evidence claim,
[a] weight of the evidence claim must be preserved either in a
post-sentence motion, by a written motion before sentencing, or
orally prior to sentencing. Pa.R.Crim.P. 607; Commonwealth v.
Priest, 18 A.3d 1235, 1239 (Pa. Super. 2011). Failure to
properly preserve the claim will result in waiver, even if the trial
court addresses the issue in its opinion. Commonwealth v.
Sherwood[], 982 A.2d 483, 494 (Pa. 2009).
Commonwealth v. Thompson, 93 A.3d 478, 490 (Pa. Super. 2014)
(quoting Commonwealth v. Lofton, 57 A.3d 1270, 1273 (Pa. Super.
2012)).
A boiler[]plate motion, either that “the evidence was insufficient
to support the verdict,” or that “the verdict was against the
weight of the evidence,” is not a “precise statement of issues
and grounds relied upon.” Such assignments of error not only do
not “foster” but discourage “alert and zealous advocacy,” for
anyone may make them without giving thought to what the
issues really are.
Commonwealth v. Holmes, 461 A.2d 1268, 1273 (Pa. Super. 1983) (en
banc). Thus, this Court held that
a post-verdict motion, either that “the evidence was insufficient
to support the verdict,” or that “the verdict was against the
weight of the evidence,” will preserve no issue for appellate
review unless the motion goes on to specify in what respect
the evidence was insufficient, or why the verdict was against the
weight of the evidence.
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Id. at 1270 (emphasis in original).
On appeal, Appellant combines his sufficiency and weight challenges
into a single argument section. After setting forth boilerplate weight-of-the-
evidence law, Appellant presents the following argument.
Specifically, the jury’s verdict is against the weight of the
evidence, shocks one’s sense of justice, and is an abuse of
discretion because the jury ignored direct evidence from []
Eanes that he shot and killed [Victim]. [Appellant] admitted his
role was his mere presence at the crime scene.
[Appellant] asserts that the testimony of Navarro and
Vargas were perjured, false and riddled with inconsistencies.
[Appellant] asserts that the verdict was against the weight of the
evidence for the reasons cited above, and more particularly with
the absence of any physical evidence linking the defendant to
the crime or the crime scene and the jury’s reliance on
inconsistent testimony.
Appellant’s Brief at 36-37.
Thus, Appellant raised only a boilerplate weight claim in his post-
sentence motion. In his supporting brief, he included boilerplate case law
and concluded, without analysis or argument, “that the verdict was against
the weight of the evidence for the reasons cited above.” Post-Sentence
Motion Brief in Support, 5/30/2019, at 7. Based thereon, the trial court
concluded that Appellant waived his weight argument. Trial Court Opinion,
6/21/2019, at 7-8. We agree with the trial court. However, even if
Appellant had preserved his weight-of-the-evidence claim, he still would not
be entitled to relief.
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When a trial court considers a motion for a new trial based upon
a weight of the evidence claim, the trial court may award relief
only when the jury’s verdict is so contrary to the evidence as to
shock one’s sense of justice and the award of a new trial is
imperative so that right may be given another opportunity to
prevail. The inquiry is not the same for an appellate court.
Rather, when an appellate court reviews a weight claim, the
court is reviewing the exercise of discretion by the trial court,
not the underlying question of whether the verdict was against
the weight of the evidence. The appellate court reviews a weight
claim using an abuse of discretion standard.
Commonwealth v. Jacoby, 170 A.3d 1065, 1080 (Pa. 2017) (citations and
quotation marks omitted).
When the challenge to the weight of the evidence is predicated
on the credibility of trial testimony, our review of the trial court’s
decision is extremely limited. Generally, unless the evidence is
so unreliable and/or contradictory as to make any verdict based
thereon pure conjecture, these types of claims are not
cognizable on appellate review.
Commonwealth v. Gibbs, 981 A.2d 274, 282 (Pa. Super. 2009) (citations
omitted).
In its alternative analysis of the merits, the trial court concluded as
follows.
The evidence in this case was presented to the jury over
the course of a four-day jury trial. The jury heard testimony
from numerous witnesses, including the co-conspirators, and
had an opportunity to fairly assess their credibility. [Appellant]
assailed the credibility and motivations of the co-conspirators.
The Commonwealth presented both direct and circumstantial
evidence of [Appellant’s] participation in this botched robbery
that resulted in the unfortunate death of [Victim]. Whether
[Appellant] was truly the gunman is irrelevant for the verdict of
murder of the second degree. The verdict is supported by the
evidence and in no way shocks this [c]ourt’s sense of justice.
Trial Court Opinion, 6/21/2019, at 11.
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Upon review, even if Appellant’s weight claim were not waived, we
discern no abuse of discretion on the part of the trial court. Accordingly,
Appellant is not entitled to relief on this claim.
Discretionary Aspects of Sentence
We next address Appellant’s claim that the trial court abused its
discretion in imposing a consecutive sentence for conspiracy to commit
robbery. Appellant’s Brief at 37. We consider this mindful of the following.
Sentencing is a matter vested in the sound discretion of the
sentencing judge, and a sentence will not be disturbed on appeal
absent a manifest abuse of discretion. In this context, an abuse
of discretion is not shown merely by an error in judgment.
Rather, the appellant must establish, by reference to the record,
that the sentencing court ignored or misapplied the law,
exercised its judgment for reasons of partiality, prejudice, bias
or ill will, or arrived at a manifestly unreasonable decision.
***
When imposing [a] sentence, a court is required to consider the
particular circumstances of the offense and the character of the
defendant. In considering these factors, the court should refer
to the defendant’s prior criminal record, age, personal
characteristics and potential for rehabilitation.
Commonwealth v. Antidormi, 84 A.3d 736, 760-61 (Pa. Super. 2014)
(internal citations and quotation marks omitted).
An appellant is not entitled to the review of challenges to the
discretionary aspects of a sentence as of right. Rather, an
appellant challenging the discretionary aspects of his sentence
must invoke this Court’s jurisdiction. We determine whether the
appellant has invoked our jurisdiction by considering the
following four factors:
(1) whether appellant has filed a timely notice of
appeal, see Pa.R.A.P. 902 and 903; (2) whether the
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issue was properly preserved at sentencing or in a
motion to reconsider and modify sentence, see
Pa.R.Crim.P. 720; (3) whether appellant’s brief has a
fatal defect, Pa.R.A.P. 2119(f); and (4) whether
there is a substantial question that the sentence
appealed from is not appropriate under the
Sentencing Code, 42 Pa.C.S.[] § 9781(b).
Commonwealth v. Samuel, 102 A.3d 1001, 1006-07 (Pa. Super. 2014)
(some citations omitted).
Appellant satisfied the first two requirements: he timely filed a notice
of appeal and included a Pa.R.A.P. 2119(f) statement in his brief. However,
while he filed a post-sentence motion raising a discretionary-aspects-of-
sentencing claim, that claim differs from the claim he presents on appeal.
Specifically, in his post-sentence motion, Appellant averred that the
consecutive sentence for conspiracy to commit robbery was excessive and
unreasonable because the trial court failed to consider the sentencing
guidelines and failed to consider adequately mitigating factors regarding
Appellant’s intellectual abilities. Post-Sentence Motion, 3/6/2019; Post-
Sentence Motion Brief in Support, 5/30/2019, at 16-17. In contrast, on
appeal, Appellant claims the trial court abused its discretion in sentencing
Appellant consecutively on conspiracy to commit robbery because the court
expressed bias against Appellant for rejecting a plea offer. Additionally,
Appellant avers that the consecutive sentence “was disproportionate to
[Appellant’s] crimes” and “unduly excessive in relation to the nature of the
crime[,]” and that the court failed to consider the “fact that [Victim] was in
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possession of illegal drugs and a firearm as mitigat[ing] factors.” Appellant’s
Brief at 38-40.
Based on the foregoing, we conclude that Appellant failed to raise his
specific appellate claims in his post-sentence motion, and therefore has
failed to preserve his discretionary sentencing claims. See Commonwealth
v. Lamonda, 52 A.3d 365, 371 (Pa. Super. 2012) (“Issues challenging the
discretionary aspects of a sentence must be raised in a post-sentence
motion or by presenting the claim to the trial court during the sentencing
proceedings. Absent such efforts, an objection to a discretionary aspect of a
sentence is waived.”) (citations and quotation marks omitted); see also
Commonwealth v. Rush, 959 A.2d 945, 949 (Pa. Super. 2008) (“[F]or any
claim that was required to be preserved, this Court cannot review a legal
theory in support of that claim unless that particular legal theory was
presented to the trial court.”).
Constitutionality of Second-Degree Murder
We next address Appellant’s claim that his second-degree murder
conviction contravenes “the 14th Amendment due process and 8th
Amendment proportionality standards” because Pennsylvania’s “second-
degree murder statute permits the use of transferred intent from a felony to
provide the necessary mens rea for murder.” Appellant’s Brief at 16.
As a threshold matter, a statute is presumed to be constitutional
and will only be invalidated as unconstitutional if it clearly,
palpably, and plainly violates constitutional rights. Analysis of
the constitutionality of a statute is a question of law; therefore,
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our standard of review is de novo, and our scope of review is
plenary.
Commonwealth v. Brensinger, 218 A.3d 440, 456 (Pa. Super. 2019) (en
banc) (citations and internal quotation marks omitted).
A claim of cruel and unusual punishment challenges the legality of a
sentence. Commonwealth v. Middleton, 467 A.2d 841, 846 n.5 (Pa.
Super. 1983).
We review the legality of a sentence [under a] de novo standard.
Our scope of review is plenary.
[D]uly enacted legislation carries with it a strong presumption of
constitutionality. We will not find a statute violative of the
Eight[h] Amendment’s prohibition on cruel and unusual
punishment unless it calls for a sentence so greatly
disproportionate to an offense as to offend evolving standards of
decency or a balanced sense of justice.
Commonwealth v. Smith, 210 A.3d 1050, 1062 (Pa. Super. 2019)
(citations and quotation marks omitted).
Murder of the second degree is a criminal homicide committed
while a defendant was engaged as a principal or an accomplice
in the perpetration of a felony. 18 Pa.C.S.[] § 2502(b). 18
Pa.C.S.[] § 2502(d) defines perpetration of a felony as:
[t]he act of the defendant in 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.
18 Pa.C.S.[] § 2502(d) (emphasis added). The malice or intent
to commit the underlying crime is imputed to the killing to make
it second-degree murder, regardless of whether the defendant
actually intended to physically harm the victim.
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The elements of accomplice liability for felony murder were
addressed in [Middleton, 467 A.2d at 848]:
In Commonwealth v. Waters, [] 418 A.2d 312,
317 ([Pa.] 1980), the court discussed the elements
to be proved in order to establish accomplice liability
for felony murder, saying that:
... [t]he responsibility of persons, other
than the slayer, for a homicide
committed in the perpetration of a felony
require[s] proof of a conspiratorial design
by the slayer and the others to commit
the underlying felony and of an act by
the slayer causing death which was in
furtherance of the felony.
Moreover, it was stated by the court in [Legg, 417 A.2d at
1154]:
When an actor engages in one of the statutorily
enumerated felonies and a killing occurs, the law, via
the felony-murder rule, allows the finder of fact to
infer the killing was malicious from the fact the actor
was engaged in a felony of such a dangerous nature
to human life because the actor, as held to the
standard of a reasonable man, knew or should have
known that death might result from the felony.[]
In Commonwealth v. Melton, [] 178 A.2d 728, 731 ([Pa.]
1962), [] our Supreme Court explained that not only the killer,
but all participants in a felony, including the getaway driver, are
equally guilty of felony murder when a killing by a felon occurs.
The statute defining second[-]degree murder does not require
that a homicide be foreseeable; rather, it is only necessary that
the accused engaged in conduct as a principal or an accomplice
in the perpetration of a felony. Whether evidence sufficiently
indicates that a killing was in furtherance of a predicate felony
can be a difficult question. The question of whether the killing
was in furtherance of the conspiracy is a question of proof for
the jury to resolve. Middleton, 467 A.2d at 848[]. It does not
matter whether the appellant anticipated that the victim would
be killed in furtherance of the conspiracy. Rather, the fact finder
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determines whether the appellant knew or should have known
that the possibility of death accompanied a dangerous
undertaking.
Commonwealth v. Lambert, 795 A.2d 1010, 1022-23 (Pa. Super. 2002)
(en banc) (some citations omitted).
The malice required for felony-murder is not a specific intent to
kill. It is only the wanton disregard for the fact that death might
result which is inherent in the commission of a dangerous
felony. The felony-murder rule thus holds one responsible for
the consequences resulting from the malice which accompanies
the perpetration of the initial felony.
Commonwealth v. Olds, 469 A.2d 1072, 1076-77 (Pa. Super. 1983)
(citations omitted).
In his post-sentence motion, Appellant averred that application of the
felony-murder rule violates the Pennsylvania and United States
constitutions, and constitutes cruel and unusual punishment. Post-Sentence
Motion, 3/6/2019, at 2. According to Appellant, he has been subjected to
“the sting of a murder conviction under an arcane and irrational law which
does not require proof of intent or malice to be convicted of second[-]degree
murder and to be sentenced to life in prison without parole.” Post-Sentence
Motion Brief in Support, 5/30/2019, at 9. In essence, Appellant challenges
the propriety of “the second-degree murder statute [permitting] the use of
transferred intent from a felony” to create what he contends is an
irrebuttable presumption of “the necessary mens rea for murder.”
Appellant’s Brief at 16. Given this presumption, Appellant argues that the
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felony-murder rule overrides the presumption of innocence and invades the
jury’s fact-finding role. Id. at 19-20. Specifically, he contends the
jury was not required to make an affirmative finding of
[Appellant’s] culpability. Instead, the jury was allowed only to
deliberate on whether a killing occurred during the commission
of a felony. Upon its finding of that fact, the rule requires the
jury to find automatically that [Appellant] had a culpable
homicidal state of mind.
Id. at 20.
Finally, Appellant argues that punishment for second-degree murder
constitutes cruel and unusual punishment because under the felony-murder
rule, “no regard is given to the culpability or the mental state of a defendant
who causes the death of another person[,]” id. at 22, and thus the rule
“dictates a punishment that is without proportionality between the crime and
[has] little legitimate deterrent or retributive rationale.” Id. at 23 (citing,
inter alia, Enmund v. Florida, 458 U.S. 782 (1982) and Solem v. Helm,
463 U.S. 277 (1983)). Thus, Appellant argues that the felony-murder rule is
invalid, defective, and unconstitutional.12
In denying Appellant’s post-sentence motion challenging the propriety
of the second-degree murder statute, the trial court concluded as follows.
[Appellant] and his co-conspirators chose to arm themselves
with a loaded firearm that was ultimately used in the course of
their botched crime. The felony-murder rule anticipates the
12 We do not address the portions of Appellant’s argument that do not relate
to the constitutionality of second-degree murder, but instead attack the
sufficiency of the evidence. See Appellant’s Brief at 25-26. For reasons
discussed infra, Appellant has waived any sufficiency claim on appeal.
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dangerousness that the conspirators created and holds each
accomplice liable for the actions of their poorly chosen cohorts.
In doing so, the law seeks to add a greater deterrent to
engaging in particularly dangerous felonies. See Legg[]. Thus,
the verdict of murder of the second degree does not clearly,
palpably, and plainly violate the constitution. [Appellant] fails to
overcome his high burden.
Trial Court Opinion, 6/21/2019, at 7.
This Court addressed nearly identical claims to Appellant’s in
Middleton: “(1) [whether] the imposition of a sentence of life imprisonment
on an accomplice to a felony-murder violates the Eighth Amendment
prohibition against cruel and unusual punishment; and (2) [whether] the
Commonwealth’s ability to establish the requisite state of mind by
implication violates due process of law.” 467 A.2d at 843. Although we
concluded that Middleton waived his due process argument by failing to
include it in his post-sentence motion, we noted that “[e]ven if we were to
decide this issue on its merits, past precedents would mandate a result
adverse to [Middleton].” Id. at 845 n.3 (noting that in Commonwealth v.
Cornish, 370 A.2d 291 (Pa. 1977); Commonwealth v. Yuknavich, 295
A.2d 290 (Pa. 1972); and Commonwealth ex rel. Smith v. Myers, 261
A.2d 550 (Pa. 1970),13 our Supreme Court “upheld the constitutional validity
13 In Smith, our Supreme Court casts some real doubt on the felony-murder
rule and “how shaky are the basic premises on which it rests.” 261 A.2d at
555. Despite the Court’s harsh criticism of the felony-murder rule in Smith,
that doubt has not been expanded since Smith was decided in 1970.
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of the felony-murder statute”). The same precedents continue to apply
here, mandating a result adverse to Appellant.
Regarding Middleton’s argument that the second-degree murder
statute constituted cruel and unusual punishment, we provided the following
analysis.
[Middleton] argues that the mandatory life sentence required
by 18 Pa.C.S.[] § 1102(b) is unconstitutional because it does not
allow the sentencing judge to consider any mitigating factors
which might alleviate the sentence; factors such as the
defendant’s level of participation in the killing and his intent.
[Middleton] seeks to buttress this argument by drawing an
analogy to the recent decision of the United States Supreme
Court in Enmund v. Florida[] and to the Sentencing Code, 42
Pa.C.S.[] § 9701, et seq.; both of which require consideration of
mitigating and aggravating factors prior to the imposition of the
death penalty.
[Middleton’s] argument was specifically addressed, and rejected,
in [] Cornish, [] 370 A.2d at 293, in which the court stated: “It
can hardly be said that the circumstances wherein a murder is
committed during the commission of a felony vary to such an
extent that the legislative determination to mandate one penalty
is unreasonable.”
Furthermore, the selection of the penalty of life imprisonment,
being a legislative determination, carries a strong presumption
of validity, and of constitutionality. …
[Middleton’s] argument does not meet this heavy burden. Both
the analogy to Enmund, and the analogy to the Sentencing
Code [] suffer from the same defect. Both are concerned with
the constitutional limitations on the imposition of the death
penalty. [Middleton] would have us overlook the inherent quality
of the death penalty which distinguishes it from all other forms
of punishment. …
***
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As a result [] decisions in capital cases are of limited assistance
in deciding the constitutionality of the punishment in a
noncapital case.
***
The offense of felony-murder is undoubtedly one of the gravest
and most serious [offenses] which can be committed. The taking
of a life during the commission of an enumerated felony
demonstrates a disregard for the property, safety, sanctity,
integrity, and especially, the life of the victim. It is a crime of
archviolence. Clearly, such an offense merits a severe penalty.
Middleton, 467 A.2d at 846-47 (footnote and some internal quotation
marks and citations omitted). We applied the Solem factors to determine
whether the sentence was unconstitutionally disproportionate, ultimately
concluding that it “does not derogate from the propriety of a sentence of life
imprisonment for the offense of second[-]degree murder.” Middleton, 467
A.2d at 847.
Instantly, Appellant has not met his burden and has “give[n] us no
reason to revisit this precedent[.]” Commonwealth v. Henkel, 938 A.2d
433, 447 (Pa. Super. 2007) (rejecting identical claim based upon
Middleton). In light of the above, Appellant’s arguments do not establish
that the felony-murder rule “clearly, palpably, and plainly violates
constitutional rights.” Brensinger, 218 A.3d at 456. Accordingly, Appellant
is not entitled to relief on this claim.
Illegal Sentence
Finally, we address sua sponte the legality of Appellant’s sentences for
multiple conspiracy counts. See Commonwealth v. Barnes, 871 A.2d
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812, 821 n.6 (Pa. Super. 2005) (“Challenges to an illegal sentence can never
be waived and may be reviewed sua sponte by this Court.”) (citation and
quotation marks omitted).
“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.” 18 Pa.C.S.
§ 903(c). Thus, for Appellant “to be convicted of three counts of conspiracy,
there must be separate agreements, or separate conspiratorial relationships,
to support each conviction.” Barnes, 871 A.2d at 820.
In determining whether a single or multiple conspiracy has been
established, we consider several relevant factors.
The factors most commonly considered in a totality
of the circumstances analysis of the single
vs. multiple conspiracies issue ... are: the number of
overt acts in common; the overlap of personnel; the
time period during which the alleged acts took place;
the similarity in methods of operation; the locations
in which the alleged acts took place; the extent to
which the purported conspiracies share a common
objective; and, the degree to which interdependence
is needed for the overall operation to succeed.
Commonwealth v. Davis, 704 A.2d 650, 654 (Pa. Super. 1997) (citation
omitted).
In Davis, this Court concluded that the crimes committed by Davis
and his co-conspirators, specifically robbery and third-degree murder, were
the result of a “continuous conspiratorial relationship.” 704 A.2d at 654
(quoting 18 Pa.C.S. § 903(c)).
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[t]he same acts were done to accomplish both results, the same
actors took part, the acts occurred simultaneously at the same
location, the same method was employed and the same
objective was pursued. We find that these facts constitute the
very circumstances envisioned by [subsection] 903(c). The
essential feature of the existing conspiracy was a common plan
or scheme to achieve a common, single, comprehensive goal.
We conclude therefore that [Davis] cannot be punished
separately for each conspiracy; multiple sentences under these
circumstances are explicitly precluded by statute. 18 Pa.C.S.[]
§ 903(c).
704 A.2d at 654-55 (footnote, quotation marks, and some citations
omitted).
Similarly, in Barnes, the defendant was convicted of multiple
conspiracies: delivery of a controlled substance, robbery, and third-degree
murder. Upon review of the above factors, this Court concluded that only
one conspiratorial agreement existed, and therefore Barnes could “be
convicted only of conspiracy to deliver cocaine, that crime being the
underlying foundation of the agreement upon which the conspiracy charges
were based.” 871 A.2d at 821. Based thereon, we vacated Barnes’s other
two conspiracy convictions.
Applying the above factors to the instant case, we conclude that the
conduct of Appellant and his co-defendants did not result from three
separate conspiracies. Instead, their conduct was the result of a “continuous
conspiratorial relationship.” 18 Pa.C.S. § 903(c). The agreement among
Appellant and his co-defendants to rob Victim at gunpoint encompassed their
plan to break into Victim’s home (burglary) and take his money and drugs at
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gunpoint (robbery). The homicide (second-degree murder) that occurred
during the robbery was in furtherance of the single conspiratorial goal: to
rob Victim. As such, under subsection 903(c), Appellant only could be found
guilty of conspiracy to commit robbery, “that crime being the underlying
foundation of the agreement upon which the conspiracy charges were
based.” Barnes, 871 A.2d at 821. Accordingly, we vacate Appellant’s
conspiracy to commit burglary and conspiracy to commit second-degree
murder convictions. Id. at 821 n.6. However, because the trial court
imposed concurrent sentences for these convictions, we have not upset the
overall sentencing scheme and need not remand for resentencing.
Commonwealth v. Thur, 906 A.2d 552, 569-70 (Pa. Super. 2006).
Convictions and sentences for conspiracy to commit burglary and
conspiracy to commit second-degree murder vacated. Judgment of sentence
affirmed in all other respects.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/25/20
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