# Commonwealth v. Johnson

> Superior Court of Pennsylvania · October 23, 1998 · 719 A.2d 778

URL: https://www.frixlaw.com/law-library/cases/9648080

## Case

- **Full name:** COMMONWEALTH of Pennsylvania v. Carlo JOHNSON, Appellant
- **Court:** Superior Court of Pennsylvania
- **Decided:** October 23, 1998
- **Citations:** 719 A.2d 778; 1998 Pa. Super. LEXIS 2949
- **Precedential status:** Published
- **Opinion:** Concurrence by Kelly
- **Judges:** McEwen, Sole, Kelly, Popovich, Elliott, Joyce, Melvin, Musmanno, Schiller
- **Cited by:** 129 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9648080

## How later opinions describe it (automated extraction)

- finding appellant’s failure to move to recuse trial judge after the facts allegedly establishing bias came to appellant’s attention constituted waiver

## Opinion text

KELLY, Judge,
concurring:
I wholeheartedly join the majority in its disposition of this case and the reasoning in its support. I add only one comment. Pennsylvania law makes clear that the omission of a Rule 2119(f) statement in an appellate brief waives a discretionary aspects of sentencing issue if the Commonwealth objects to the omission. Commonwealth v. Saranchak, 544 Pa. 158 , 675 A.2d 268 (1996), cert. denied, — U.S. —, 117 S.Ct. 695 , 136 L.Ed.2d 617 (1997). The reviewing Court, however, may overlook the omission in those instances when the Commonwealth fails to object and the presence or absence of a substantial question can easily be determined from Appellant’s brief. Id. This case, in my view, does not represent one of those exceptional instances. Accordingly, to the extent that Appellant’s “bias” issue may be construed as a challenge to the discretionary aspects of his sentence, I must agree that Appellant has waived the issue.
SCHILLER, Judge,
dissenting.
I respectfully dissent. The panel decision was not based on our inability to address the sufficiency of the evidence to convict appellant of conspiracy to commit third degree murder. Appellant was never charged with conspiracy to commit murder. Instead, the criminal information charged appellant with “conspiracy to beat Eddie Polec”. While this criminal information could be interpreted as conspiracy to commit aggravated assault, the panel remanded solely for the purpose of obtaining clarification from the trial court as to the grade of the offense and the reasons for the court’s sentence. Since the jury convicted appellant only of “conspiracy”, we do not know what crime he conspired to commit, which is the reason we remanded for clarification.
*792 Moreover, while the panel noted that, in the interest of justice, we would not preclude appellant from raising a future sufficiency of the evidence claim once the trial court clarified which subsection of the aggravated assault statute appellant violated, we specifically stated that, “[b]ased on our review of the record, the evidence presented at trial clearly supports a verdict that [appellant] was guilty of conspiracy to violate one or more subsections of the statute.” Accordingly, I would remand this case for a clarification of appellant’s criminal conspiracy conviction and re-sentencing following that clarification.
POPOVICH, J., joins in this dissent.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9648080. Public record. Not legal advice.