J. A27009/14


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                :        IN THE SUPERIOR COURT OF
                                            :              PENNSYLVANIA
                    v.                      :
                                            :
WAYNE SHERMAN BAIR, JR.,                    :              No. 148 WDA 2014
                                            :
                         Appellant          :


          Appeal from the Judgment of Sentence, December 31, 2013,
                in the Court of Common Pleas of Greene County
               Criminal Division at No. CP-30-CR-0000471-2012


BEFORE: FORD ELLIOTT, P.J.E., SHOGAN AND MUSMANNO, JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                   FILED DECEMBER 03, 2014

        Appellant appeals his conviction for conspiracy to commit burglary and

conspiracy to commit theft by unlawful taking or disposition.1 Finding that

the trial court erred in instructing the jury, we will vacate the judgment of

sentence.

        On December 22, 2011, appellant drove himself and his cohorts,

Brian Blosser    and     James   Shriver,       to   the    home   of   James   and

Tracy Ozohonish. Blosser and Shriver knocked on the door and determined

that nobody was home. One of appellant’s cohorts then returned to the car

and told appellant to “go for a ride.” Appellant then drove up the road and

waited about 20 minutes. In the meantime, Blosser and Shriver broke into



1
    18 Pa.C.S.A. §§ 903(a)(1), 3502(a), and 3921(a)(1)
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the Ozohonish residence and stole jewelry and other items.        Although a

security system failed to alert authorities, video cameras recorded the crime

in progress. Appellant then returned to the Ozohonish residence and picked

up Blosser and Shriver.     The three then went to a pawn shop where

appellant and Blosser went inside and sold the stolen property.     Appellant

subsequently made a recorded confession that was played for the jury.

     During its charge to the jury, the trial court first described conspiracy

and the notion of criminal liability predicated upon the acts of a

co-conspirator. Immediately after the court’s instructions on conspiracy, the

court informed the jury, “[t]here is another way that a person can be liable

for the conduct of another, and that is by being an accomplice.” The court

then went on to describe accomplice liability. Following the court’s charge as

to accomplice liability, counsel objected to the court’s charge as being

inappropriate where the criminal charges are for conspiracy.        (Notes of

testimony, 9/10/13 at 83-84.)     The jury was clearly confused as to the

difference between an accomplice and a conspirator because it returned a

question to the trial court asking the difference between the two.    (Id. at

84.) The court explained that the essential difference is the existence of an

agreement between the parties that raises the relationship of the parties to

the level of a conspiracy. (Id. at 84-85.) The jury subsequently returned

guilty verdicts on the aforementioned conspiracy charges.         On appeal,




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appellant again asserts that the trial court erred in charging the jury as to

accomplice liability.

      We begin our analysis with our standard of review:

            [W]hen evaluating the propriety of jury instructions,
            this Court will look to the instructions as a whole,
            and not simply isolated portions, to determine if the
            instructions were improper. We further note that, it
            is an unquestionable maxim of law in this
            Commonwealth that a trial court has broad discretion
            in phrasing its instructions, and may choose its own
            wording so long as the law is clearly, adequately,
            and accurately presented to the jury for its
            consideration. Only where there is an abuse of
            discretion or an inaccurate statement of the law is
            there reversible error.

Commonwealth v. Antidormi, 84 A.3d 736, 754 (Pa.Super. 2014),

appeal denied, 95 A.3d 275 (Pa. 2014), quoting Commonwealth v.

Trippett, 932 A.2d 188, 200 (Pa.Super. 2007).

      Accomplice liability is predicated upon two elements:

                    To find [a defendant] guilty as an accomplice,
            a      two-prong      test    must     be     satisfied.
            Commonwealth v. Murphy, 577 Pa. 275, 284, 844
            A.2d 1228, 1234 (2004).         First, there must be
            evidence to show that [the defendant] intended to
            facilitate or promote the underlying offense. Id.
            Second, there must be evidence that [the defendant]
            actively participated in the crime or crimes by
            soliciting, aiding, or agreeing to aid the principal [].
            Id. Both requirements may be established wholly by
            circumstantial evidence.      Id.    Only “[t]he least
            degree of concert or collusion in the commission of
            the offense is sufficient to sustain a finding of
            responsibility as an accomplice.” Commonwealth
            v. Coccioletti, 493 Pa. 103, 109, 425 A.2d 387, 390
            (1981).       No agreement is required, only aid.



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           Commonwealth v. Graves, 316 Pa.Super. 484,
           463 A.2d 467, 470 (1983).

Commonwealth v. Kimbrough, 872 A.2d 1244, 1251 (Pa.Super. 2005),

appeal denied, 887 A.2d 1240 (Pa. 2005).

     Conspirator liability, however, requires the finding of an additional

prong, that being an agreement:

           “The intent required for criminal conspiracy is
           identical to that required for accomplice liability. In
           both crimes a defendant must act with the intent of
           promoting       or    facilitating    the    offense.”
           Commonwealth v. Davenport, 307 Pa.Super. 102,
           452 A.2d 1058, 1062 (1982). However, a mere
           finding that an individual was an accomplice of the
           criminal actor does not automatically establish that
           the individual was a conspirator with the actor.
           Accomplice liability and conspiracy are not one and
           the same crime. Commonwealth v. Petrie, 277
           Pa.Super. 239, 419 A.2d 750, 752 (1980).
           Conspiracy requires proof of an additional factor
           which accomplice liability does not, namely the
           existence of an agreement.         Commonwealth v.
           Graves, 316 Pa.Super. 484, 463 A.2d 467, 469
           (1983).

Commonwealth v. Murphy, 795 A.2d 1025, 1038 (Pa.Super. 2002),

affirmed, 844 A.2d 1228 (Pa. 2004).

     We find that in instructing the jury as to accomplice liability, the court

incorrectly implied to the jury that appellant could be convicted without the

finding that an actual agreement existed among appellant and his cohorts.

However, appellant was charged and convicted of two counts of criminal

conspiracy only; therefore, the jury was required to find that an actual

agreement existed.    Furthermore, the accomplice liability instruction was


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also improper because appellant was not facing any charges upon which he

could be found to be an accomplice.     Appellant was not charged with the

underlying crimes of burglary or theft by unlawful taking or disposition for

which he potentially could have been found to be a mere accomplice.

Appellant was charged only with criminal conspiracy.

      Accordingly, having found that the trial court’s jury instructions may

well have confused the jury and permitted a finding of guilt as to criminal

conspiracy without the finding of an agreement among the alleged

conspirators, we must vacate the judgment of sentence.

      Judgment    of   sentence   vacated.   Case   remanded   for   re-trial.

Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/3/2014




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