J-S15018-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    DUWAYNE A. DIXON, JR.                      :
                                               :
                       Appellant               :   No. 1203 WDA 2019

              Appeal from the PCRA Order Entered August 2, 2019
     In the Court of Common Pleas of Allegheny County Criminal Division at
                        No(s): CP-02-CR-0016492-2008


BEFORE:      BENDER, P.J.E., OLSON, J., and STEVENS, P.J.E.*

MEMORANDUM BY OLSON, J.:                                  FILED MAY 20, 2020

        Appellant, Duwayne A. Dixon, appeals from the order entered August 2,

2019, dismissing his petition filed pursuant to the Post Conviction Relief Act

(PCRA), 42 Pa.C.S.A. §§ 9541-9546. We affirm, in part, and vacate, in part.

        We summarize the relevant facts and procedural history of this case as

follows. In 2008, Appellant shot and injured a witness scheduled to testify

against the leader of Appellant's gang in an unrelated criminal matter.       In

January 2013, a jury convicted Appellant of aggravated assault, criminal

attempt – homicide, conspiracy to commit homicide, intimidation of a witness,

and retaliation against a witness.1 In March 2013, the trial court sentenced

Appellant.     This Court vacated Appellant’s sentence as illegal, in several
____________________________________________


*   Former Justice specially assigned to the Superior Court.

1  18 Pa.C.S.A. §§ 2702(a), 901/2502, 903(a), 4952(a), and 4953(a),
respectively.
J-S15018-20



respects, in an unpublished memorandum filed on February 12, 2015. See

Commonwealth v. Dixon, 120 A.3d 379 (Pa. Super. 2015) (unpublished

memorandum).         On remand, the trial court resentenced Appellant in June

2015.     We vacated that sentence and remanded the case again for

resentencing based, inter alia, on the trial court’s personal bias against

Appellant as demonstrated by statements made at the resentencing hearing.

See Commonwealth v. Dixon, 2016 WL 5380842 (Pa. Super. 2016)

(unpublished memorandum).             Upon remand, the original trial court judge

recused himself and the case was reassigned to another judge for review. The

newly-assigned judge held a hearing on February 9, 2017 and sentenced

Appellant to an aggregate term of 203 to 406 months of incarceration. This

Court affirmed Appellant’s judgment of sentence on December 13, 2017. See

Commonwealth v. Dixon, 2017 WL 6348256 (Pa. Super. 2017).

        On November 21, 2018, Appellant filed a pro se PCRA petition. The

PCRA court appointed counsel who filed an amended PCRA petition, on

February 4, 2019, again challenging Appellant’s sentence as illegal.2 Relevant

to this appeal, the petition alleged that trial counsel and direct appeal counsel

were ineffective for failing to object to Appellant’s sentence for intimidation of

a witness. Appellant alleged that counsel failed to object to the trial court’s

defective jury instructions, and a defective jury verdict slip, directing the jury


____________________________________________


2 The Commonwealth conceded that Appellant was entitled to partial
sentencing relief unrelated to this appeal.

                                           -2-
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to find, as a matter of law, that the intimidation charge must be graded as a

first-degree felony.

      More specifically, Appellant challenged the following jury instruction:

      The third crime [Appellant] is accused of committing is
      intimidation of a witness or victim. [Appellant] has been charged
      with intimidation of a witness or victim. To find [Appellant] guilty
      of this offense, you must find that each of the following elements
      has been proven beyond a reasonable doubt.

      One, [Appellant] has been charged with -- excuse me.

      First, [Appellant] intimidated or attempted to intimidate by threat
      or by violence a witness or victim into withholding testimony or
      information relating to the commission of a crime from a law
      enforcement officer, prosecuting official or judge.        Eluding,
      evading or ignoring a request to appear or legal process
      summoning him to appear to testify or supply evidence. Or
      absenting himself from a proceeding to which he has been legally
      summoned.

      And second, that [Appellant] did so with the intent to or with the
      knowledge that his conduct would obstruct, impede, impair,
      prevent or interfere with the administration of criminal justice. In
      order to find [Appellant] attempted to intimidate Andre Ripley into
      acting in a particular way, you must find that he intended to
      intimidate Mr. Ripley into acting in a way, and that he engaged in
      conduct that constituted a substantial step towards intimidating
      Andre Ripley into so acting.

      A witness is any person having knowledge of the existence or
      nonexistence of facts or information relating to a crime. A witness
      includes a person in this case who witnessed the shooting of Andre
      Ripley and/or Brandy McWright in Ferguson Park, Wilkinsburg, in
      May 2007.

      Third, that [Appellant] used force, violence or deception or
      threatens to employ force or violence upon the witness or victim
      or, with the intent or knowledge to intimidate a witness or victim,
      uses force, violence or deception or threatens force or violence
      upon any other person. Or acted in furtherance of a conspiracy
      to intimidate a witness or victims with planning, covering up or
      shooting Andre Ripley.

                                     -3-
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       [Finally], that the case in which the actor sought to influence or
       intimidate a witness or victim was first or second degree murder
       or was a felony of the first degree. I instruct you that crime is
       a felony of the first degree.

See Appellant’s Brief at 17 (emphasis in original), citing N.T., 1/15/2013, at

603-605.

       Appellant argued it was the function of the jury to determine the grade

of the underlying crime to which the witness intimidation charge related

because the grading assessment elevated the maximum sentence to be

imposed for the offense. Appellant claimed that by instructing the jury that

the offense underlying the intimidation charge constituted a first-degree

felony, the trial court invaded the province of the factfinder, violated his due

process rights and right to a jury trial, and disregarded the decision of the

United States Supreme Court in Apprendi v. New Jersey, 530 U.S. 466

(2000).    The PCRA court conducted a hearing on August 2, 2019 and denied

relief on Appellant’s Apprendi claim. The PCRA court imposed a reformed

sentence of 198 to 396 months’ imprisonment,3 reflecting an award of relief

that is not pertinent to this appeal. This timely appeal followed, in which



____________________________________________


3 The PCRA court sentenced Appellant to 114 to 228 months of imprisonment
for criminal attempt – homicide. The PCRA court further sentenced Appellant
to consecutive terms of incarceration of 72 to 144 months for intimidation of
a witness and 12 to 24 months for retaliation against a witness. The PCRA
court determined that Appellant’s convictions for aggravated assault and
conspiracy to commit homicide merged for sentencing purposes. See N.T.,
8/2/2019, at 21.



                                           -4-
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Appellant challenges the PCRA court’s denial of his sentencing claim

predicated on Apprendi.4

       On appeal, Appellant presents the following issue for our review:

       Whether the [PCRA] court erred in partially denying [Appellant’s]
       amended PCRA petition, and by resentencing [Appellant] at Count
       IV [(intimidation of a witness)] at the “felony I” level, by not
       finding and ruling that the “misdemeanor II” level was the only
       grading supported by the jury instructions, the jury verdict slip
       and/or the jury verdict?

Appellant’s Brief at 4 (complete capitalization omitted).5

       We adhere to the following standards of review:

       On appeal from the denial of PCRA relief, our standard of review
       calls for us to determine whether the ruling of the PCRA court is
       supported by the record and free of legal error. The PCRA court's
       findings will not be disturbed unless there is no support for the
       findings in the certified record. The PCRA court's factual
       determinations are entitled to deference, but its legal
       determinations are subject to our plenary review.

Commonwealth v. Nero, 58 A.3d 802, 805 (Pa. Super. 2012) (internal

citations and quotations omitted); see 42 Pa.C.S.A. § 9542 (“persons serving

illegal sentences may obtain collateral relief”).
____________________________________________


4 Appellant filed a notice of appeal and concise statement of errors complained
of on appeal pursuant to Pa.R.A.P. 1925(b) on August 9, 2019. The PCRA
court filed an opinion pursuant to Pa.R.A.P. 1925(a) on October 7, 2019. It
rejected Appellant’s illegal sentencing claim, opining it was bound by our
Court’s decision in Commonwealth v. Felder, 75 A.3d 513 (Pa. Super.
2013). See Trial Court Opinion, 10/7/2019, at 4-5.

5 While Appellant purports to raise a single issue in his statement of questions
presented section of his appellate brief, he presents his argument in five
distinct subheadings. For clarity and ease of discussion, we will address all of
Appellant’s claims in a two distinct parts.

                                           -5-
J-S15018-20



     Our Court previously determined:

     [W]e have established the principle that the term “illegal
     sentence” is a term of art that our Courts apply narrowly, to a
     relatively small class of cases. This class of cases includes: (1)
     claims that the sentence fell “outside of the legal parameters
     prescribed by the applicable statute”; (2) claims involving
     merger/double jeopardy; and (3) claims implicating the rule in
     [Apprendi].      These claims implicate the fundamental legal
     authority of the court to impose the sentence that it did.

Commonwealth v. Robinson, 931 A.2d 15, 21 (Pa. Super. 2007) (en banc)

(internal citations and most quotations omitted).    Moreover, “[t]he proper

grading of a criminal offense is an issue of statutory interpretation and

implicates the legality of the sentence imposed.” Felder, 75 A.3d at 515.

     Section 4952 of the Crimes Code governs the grading of intimidation of

a witness or victim and states:

     (b) Grading.--

     (1) The offense is a felony of the degree indicated in paragraphs
     (2) through (4) if:

        (i) The actor employs force, violence or deception, or
        threatens to employ force or violence, upon the witness or
        victim or, with the requisite intent or knowledge upon any
        other person.

        (ii) The actor offers any pecuniary or other benefit to the
        witness or victim or, with the requisite intent or knowledge,
        to any other person.

        (iii) The actor's conduct is in furtherance of a conspiracy to
        intimidate a witness or victim.

        (iv) The actor accepts, agrees or solicits another to accept
        any pecuniary or other benefit to intimidate a witness or
        victim.



                                    -6-
J-S15018-20


         (v) The actor has suffered any prior conviction for any
         violation of this section or any predecessor law hereto, or
         has been convicted, under any Federal statute or statute of
         any other state, of an act which would be a violation of this
         section if committed in this State.

      (2) The offense is a felony of the first degree if a felony of the first
      degree or murder in the first or second degree was charged in the
      case in which the actor sought to influence or intimidate a witness
      or victim as specified in this subsection.

      (3) The offense is a felony of the second degree if a felony of the
      second degree is the most serious offense charged in the case in
      which the actor sought to influence or intimidate a witness or
      victim as specified in this subsection.

      (4) The offense is a felony of the third degree in any other case in
      which the actor sought to influence or intimidate a witness or
      victim as specified in this subsection.

      (5) Otherwise the offense is a misdemeanor of the second degree.

18 Pa.C.S.A. § 4952.

      As set forth above and discussed at length below, application of Section

4952 requires a bifurcated process.       First, under Subsection 4952(b)(1), it

must be determined whether the actor engaged in any of the various acts

listed in (b)(1)(i)-(iv) or had a prior conviction under (b)(1)(v). If one of these

five requirements has been met, the intimidation of a witness offense is then

graded pursuant to Subsection 4952(b)(2)-(4).

      Appellant frames the first part of his claim as follows:

      In a charge of [i]ntimidation of [a w]itness or [v]ictim (18
      Pa.C.S.A. § 4952), does the trial court invade the province of the
      jury and violate Apprendi [] and subsequent cases by (1)
      instructing the jury to find, as a matter of law, what the grading
      of the underlying offense is, which in turn sets the grading of
      [i]ntimidation of [a w]itness, or (2) by failing to include a place
      for the jury to indicate that it found, beyond a reasonable doubt


                                       -7-
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      that the underlying crime was a felony in the first degree, or (3)
      by failing to include a place for the jury to find, beyond a
      reasonable doubt, the grading elements of [18 Pa.C.S.A. §§ 4952]
      (b)(1)(i) or (b)(1)(iii). In other words, can the trial court omit any
      specific finding, special verdict slip, special[] interrogatory, or the
      like as to these essential elements, and/or direct a finding of this
      fact as to the grading of the underlying offense as a matter of law,
      notwithstanding Apprendi’s clear directive that “any fact that
      increases the penalty for a crime beyond the prescribed maximum
      penalty must be submitted to a jury, and proved beyond a
      reasonable doubt.” Apprendi, 530 U.S. at 490. [Appellant]
      submits that the answer to this question is “no,” and that his
      [first-degree felony conviction at Count IV (intimidation of a
      witness) resulted in an illegal sentence].

Appellant’s Brief at 13-14 (emphasis in original).

      While Appellant complains the trial court was required to submit the

question of grading under 18 Pa.C.S.A. § 4952(b)(1) to the jury pursuant to

Apprendi, upon review we conclude that the trial court clearly did so. The

trial court first instructed the jury on the elements of the crime of intimidation

of a witness. Immediately thereafter, the trial court instructed the jury to

consider whether Appellant “used force, violence or deception … with the

intent or knowledge to intimidate a witness” or “acted in furtherance of a

conspiracy to intimidate a witness.” As such, the trial court’s instructions to

the jury tracked the language set forth in Subsections 4952(b)(1)(i) and (iii),

which includes the prerequisite findings for grading the offense of witness

intimidation pursuant to Subsection 4952(b)(2)-(4).          The trial court also

instructed the jury to consider whether the Commonwealth established these

facts beyond a reasonable doubt. “It is well settled that the jury is presumed




                                       -8-
J-S15018-20



to follow the trial court's instructions.” Commonwealth v. Cash, 137 A.3d

1262, 1280 (Pa. 2016).

      In sum, the trial court instructed the jury to consider the elements of

the crime of witness intimidation and, in addition, asked the jury to determine

whether Appellant possessed the requisite intent to intimidate and/or act in

furtherance of a conspiracy as Subsection 4952(b)(1) requires. We infer from

the jury’s verdict of guilty as to the charge of witness intimidation that one or

both of the factors listed in Subsections 4952(b)(1)(i) and (iii) were proven

beyond a reasonable doubt. This was sufficient to allow the trial court to grade

Appellant’s   witness   intimidation    conviction   pursuant    to   Subsection

4952(b)(2). The trial court had no affirmative duty to direct the jury to make

a separate finding or complete a special verdict slip reflecting its assessment

of the factors listed in Subsections 4952(b)(1)(i) and (iii). Quite simply, if the

jury determined that the Commonwealth failed to prove the factors identified

in Subsections 4952(b)(1)(i) and (iii) beyond a reasonable doubt, then it

would have acquitted Appellant of the witness intimidation charge. As such,

we conclude that the trial court correctly submitted the factors listed in

Subsection 4952(b)(1) to the jury as required by Apprendi.

      Next, Appellant assails the PCRA court’s reliance on Felder, and its

progeny, to reject his view as to how Apprendi impacts the application of

Subsection 4952(b)(2). Appellant chiefly argues that Felder did not squarely

address Apprendi, but rather, examined whether Section 4952, as a whole,

was unconstitutionally ambiguous. Id. at 22-29.

                                       -9-
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      In Felder, a panel of this Court examined Section 4952. In that case,

the Commonwealth charged Felder with intimidation of a witness or victim,

aggravated assault, simple assault, and conspiracy to commit both aggravated

and simple assault. Following trial, a jury convicted Felder of simple assault,

conspiracy to commit simple assault, and intimidation of a witness or victim.

The jury, however, deadlocked on the aggravated assault charge and found

Felder   not   guilty   of conspiracy to   commit   aggravated assault.     The

Commonwealth subsequently nolle prossed the aggravated assault charge.

See Felder, 75 A.3d at 514.        “The trial court sentenced Felder on the

conviction for witness/victim intimidation pursuant to [S]ubsection 4952(b)(2)

[(grading the offense as a first-degree felony)], reasoning that Felder had

been charged with a first-degree felony (aggravated assault).” Id. at 516

(record citation omitted). “According to the trial court, the fact that the jury

[deadlocked] on the aggravated assault charge at trial was of no consequence

under the statute for grading purposes.” Id. (record citation omitted). “Felder,

conversely, argue[d] that because the jury [deadlocked] on the aggravated

assault charge and it was nolle prossed by the Commonwealth before

sentencing, application of subsection 4952(b)(2) was improper[.]”     Id.

      In deciding Felder, our Court examined the Pennsylvania Supreme

Court’s decision in Commonwealth v. Reed, 9 A.3d 1138 (Pa. 2010) and

contrasted the cases as follows:

      Reed involved an interpretation of 18 Pa.C.S.A. § 6318, entitled
      “Unlawful contact with minor.” Subsection 6318(a) sets forth six
      specific crimes that may constitute forms of unlawful contact.

                                     - 10 -
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     Subsection 6318(b) then states that a violation of section 6318
     will be graded the same as “the most serious underlying offense
     in subsection (a) for which the defendant contacted the minor; or
     ... a misdemeanor of the first-degree, whichever is greater.” 18
     Pa.C.S.A. § 6318. In Reed, the Commonwealth charged the
     defendant with a violation of section 6318 in addition to certain
     specified crimes listed in its subsection (a). The jury convicted
     the defendant of a violation of section 6318 but acquitted him of
     the specific crimes listed in its subsection (a). Under these
     circumstances, our Supreme Court ruled that, based upon the
     language of the statute, the only grade available to the sentencing
     court was the default grade (first-degree misdemeanor), since the
     jury had acquitted the defendant of the specific crimes listed in
     subsection (a). Reed, 9 A.3d at 1147. According to [our]
     Supreme Court, because the defendant had been acquitted of the
     specific underlying offenses, the sentencing court would have had
     to guess what crime he sought to commit when he contacted the
     minor, a result the legislature could not have intended. Id.

     The language of section 6318 expressly requires a factual
     determination of the crime “for which the defendant contacted the
     minor” in order to determine proper grading.

Felder, 75 A.3d at 517.

     In contrast to Reed, the Felder Court explained the operation of

Subsection 4952(b)(2) as follows:

     Subsection 4952(b) provides      a clear roadmap for the grading of
     witness/victim intimidation      offenses.    If “a felony of the
     first-degree ... was charged     in the case,” then the offense of
     witness/victim intimidation is   graded as a first-degree felony. 18
     Pa.C.S.A. § 4952(b)(2).

                          *             *          *

     A first-degree felony was charged in this case, and thus the trial
     court properly graded Felder's conviction for witness/victim
     intimidation as a first-degree felony pursuant to [S]ubsection
     4952(b)(2). Felder's alternative interpretation of this subsection
     would require us to insert additional language into the statute,
     namely that the first-degree felony charge “continued to exist in
     the case at the time of sentencing.” Nothing in [Sub]section
     4952(b)(2) suggests that the legislature intended such a result.


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     To the contrary, the statute's focus on the most serious crime
     charged makes eminent sense, since the relevant charge is the
     most serious one a criminal defendant attempted to escape by use
     of intimidation.

Felder, 75 A.3d at 516–517 (emphasis in original).

     Moreover, the Felder Court differentiated Reed, and, ultimately

concluded:

     Felder's reliance on [Reed] is misplaced. Reed did not involve
     interpretation of statutory language in any way similar to that in
     [Sub]section 4952(b)(2).

                          *           *           *

     The language of section 6318 expressly requires a factual
     determination of the crime “for which the defendant contacted the
     minor” in order to determine proper grading.            Subsection
     4952(b)(2), in significant contrast, contains no similar language,
     as it instead provides merely that the crime will be graded as a
     first-degree felony if a first-degree felony “was charged in the
     case.” 18 Pa.C.S.A. § 4952(b)(2). As a result, our Supreme
     Court's interpretation of the language of section 6318 in Reed has
     no application in this case. Because the Commonwealth charged
     Felder with a first-degree felony (aggravated assault), the trial
     court properly graded her conviction for witness/victim
     intimidation pursuant to [S]ubsection 4952[(b)(2)] as a
     first-degree felony.

Id. at 517.

     Here, there is no dispute that the Commonwealth charged Appellant

with three underlying first-degree felonies:    aggravated assault, criminal

attempt – homicide, and conspiracy to commit homicide.       The interpretive

case law and plain language of Subsection 4952(b)(2) require only that an

offender be charged with a first-degree felony; the provision does not involve

a discretionary determination of an underlying predicate fact and, thus, does



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not call upon a jury to make a finding with respect to the grading of the crime,

so long as the prerequisite factors set forth in Subsection 4952(b)(1) have

been found beyond a reasonable doubt.6 Put differently, once the prerequisite

factors identified in Subsection 4952(b)(1) are established, Subsection

4952(b)(2) applies a binding grading mechanism which is wholly dependent

upon the grading of the most serious underlying offense charged by the

Commonwealth. Because there can be no dispute that the Commonwealth

charged Appellant with first-degree felonies, the trial court’s instruction to the

jury that the witness intimidation charge arose in a case involving a

first-degree felony did not constitute an error of law.

       Our conclusion receives support from a recent opinion announcing the

judgment of our Supreme Court in a case that upheld the validity of a

sentencing statute found at 18 Pa.C.S.A. § 9718(a)(3) against a constitutional

challenge brought pursuant to Alleyne v. United States, 570 U.S. 99




____________________________________________


6 We note that grading of criminal charges is not typically within the province
of the jury and is generally set by statute. Felder, 75 A.3d at 515 (“grading
of a criminal offense is an issue of statutory interpretation”). Instead, as
discussed, trial courts look at the plain statutory language of the specific
grading provision to determine when additional fact-finding is required. In the
case of Subsection 4952(b)(2), no additional discretionary fact-finding was
required.



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(2013).7 See Commonwealth v. Resto, 179 A.3d 18, 19 (Pa. 2018) (OAJC).

The Resto Court explained:

       At a jury trial, [Resto] was convicted of, among other offenses,
       rape of a child. See 18 Pa.C.S.A. § 3121(c). At sentencing, the
       common pleas court implemented the mandatory minimum
       sentence for that offense per Section 9718(a)(3) of the
       Sentencing Code, which, in relevant part, prescribes as follows:

       A person convicted of the following offenses shall be sentenced to
       a mandatory term of imprisonment as follows:

          18 Pa.C.S.A. § 3121(c) and (d)—not less than ten years.

       18 Pa.C.S.A § 9718(a)(3).

Resto, 179 A.3d at 19.           Our Supreme Court determined that “because

subsection (a)(3) requires no proof of any predicate or aggravating facts[,]

subsection (a)(3) simply cannot run afoul of a constitutional rule disapproving

judicial fact-finding related to ‘facts that increase mandatory minimum

sentences.’” Id. at 20-21, citing Alleyne, 570 U.S. at 116. Accordingly, the

Resto Court ultimately concluded:

       Contrary to [Resto’s] position, a conviction returned by a jury to
       which a mandatory minimum sentence directly attaches is not
       the same as an aggravating fact that increases a mandatory
       minimum sentence. In any event, such a conviction is itself a
____________________________________________


7 Alleyne is a case in which the United States Supreme Court disapproved of
post-verdict judicial fact-finding related to facts that increase mandatory
minimum sentences; it is part of a long succession of United States Supreme
Court decisions which find their genesis in Apprendi. See Alleyne v. United
States, 570 U.S. 99 (2013) (“the principle applied in Apprendi applies with
equal force to facts increasing the mandatory minimum”); see also
Commonwealth v. DiMatteo, 177 A.3d 182, 184 (Pa. 2018) (“Alleyne held
that any fact which, by law, increases the mandatory minimum sentence for
a crime must be: (1) treated as an element of the offense, as opposed to a
sentencing factor; (2) submitted to the jury; and (3) found beyond a
reasonable doubt.”).

                                          - 14 -
J-S15018-20


       contemporaneous jury determination, and the concern of Alleyne
       is with sentencing enhancements tied to facts to be determined
       by a judge at sentencing.

Resto, 179 A.3d at 21 (emphasis added).

       The same rationale applies in this case. Here, the grading of Appellant’s

witness intimidation charge under Subsection 4952(b)(2) “directly attached”

as a function of the charges filed by the Commonwealth; no factual

assessment, either by a jury or the trial court at sentencing, of predicate or

aggravating facts was required.

       We perceive no error in the substance of the trial court’s instructions or

the procedure the trial court followed in charging the jury.8 Here, the trial

court charged the jury under Subsection 4952(b)(1) as required by Apprendi.

Apprendi and its progeny, however, are not implicated in grading the offense

of witness intimidation under Subsection 4952(b)(2). As such, Appellant is




____________________________________________


8 Our disposition expresses no opinion as to whether additional fact-finding
may be necessary to assess grading pursuant to Subsection 4952(b)(4) and
Subsection 4952(b)(5), which are not implicated herein.            Subsection
4952(b)(4) provides that intimidation of a witness “is [graded as] a felony of
the third degree in any other case in which the actor sought to influence or
intimidate a witness or victim as specified in this subsection.” 18 Pa.C.S.A.
§ 4952(b)(4). In addition, Subsection 4952(b)(5) operates as a default
grading mechanism and directs that “[otherwise, witness intimidation is
graded] a misdemeanor of the second degree.” 18 Pa.C.S.A. § 4952(b)(5).
Unlike Subsection 4952(b)(2) which, as discussed in detail above, affixes an
offense grade based upon the grade of the underlying charged offenses, these
additional provisions grade witness intimidation offenses in an entirely
different manner.



                                          - 15 -
J-S15018-20


not entitled to relief because there is no merit to his claim that he received an

illegal sentence.

       We note, however, that Appellant was improperly convicted and

sentenced for two inchoate crimes, criminal attempt - homicide (18 Pa.C.S.A.

§ 901) and criminal conspiracy to commit homicide (18 Pa.C.S.A. § 903),

intended to culminate in the same offense. We have previously stated:

       Conviction on both of these charges is prohibited by 18 Pa.C.S.A.
       § 906.[9] See Commonwealth v. Watts, 465 A.2d 1267 (Pa.
       Super. 1983). When a lower court improperly convicts and
       sentences a defendant for two inchoate crimes [intended to result
       in the same offense], this Court has the option either to remand
       for resentencing or amend the sentence directly.        [Watts],
       supra; Commonwealth v. Gonzales, 443 A.2d 301 (Pa. Super.
       1982).

Commonwealth v. Cooke, 492 A.2d 63, 70 (Pa. Super. 1985). Although

Appellant has not raised this issue, we raise it sua sponte because it concerns

the legality of the sentence imposed. Id. at 70 n.3.

       Here, upon review of the most recent resentencing proceeding, the trial

court imposed a sentence of 95 to 190 months of imprisonment for criminal

attempt – homicide and merged Appellant’s conviction for conspiracy to

commit homicide for sentencing purposes. See N.T., 8/2/2019, at 21.

Because Appellant did not receive additional punishment for conspiracy to

commit homicide, we need not remand for resentencing but will simply vacate

____________________________________________


9 “A person may not be convicted of more than one of the inchoate crimes of
criminal attempt, criminal solicitation or criminal conspiracy for conduct
designed to commit or to culminate in the commission of the same crime.” 18
Pa.C.S.A. § 906.

                                          - 16 -
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the judgment of sentence imposed on the criminal conspiracy charge. See

Cooke, 492 A.2d at 70, citing Commonwealth v. Kinnon, 453 A.2d 1051

(Pa. Super. 1982).

      Order affirmed, in part, and vacated, in part. Conviction and judgment

of sentence for criminal conspiracy vacated. Convictions and judgments of

sentence affirmed in all other respects.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/20/2020




                                    - 17 -
