J.S52002/14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA,               :     IN THE SUPERIOR COURT OF
                                            :          PENNSYLVANIA
                            Appellee        :
                                            :
                    v.                      :
                                            :
                                            :
VINCENT WALLACE,                            :
                                            :
                            Appellant       :     No. 3489 EDA 2012


            Appeal from the Judgment of Sentence December 3, 2012
              In the Court of Common Pleas of Philadelphia County
               Criminal Division No(s).: CP-51-CR-0015493-2010

BEFORE: GANTMAN, P.J., ALLEN, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                        FILED JUNE 8, 2015

        Appellant, Vincent Wallace,1 appeals from the judgment of sentence of

life imprisonment entered in the Philadelphia County Court of Common Pleas

after a jury found him guilty of murder of the second degree,2 robbery,3 and

conspiracy.4 Appellant claims (1) the evidence was insufficient to prove he

perpetrated the crimes and (2) the trial court’s separate, concurrent

*
    Former Justice specially assigned to the Superior Court.
1
  An appeal by Appellant’s codefendant, Kyle Reed, is pending at
Commonwealth v. Reed, 1269 EDA 2013.
2
    18 Pa.C.S. § 2502(b).
3
    18 Pa.C.S. § 3701(a)(1).
4
    18 Pa.C.S. § 903.
J. S52002/14


sentence for robbery was illegal.5 We affirm the convictions, but vacate the

sentence for robbery.

      The parties are well versed in the evidence presented against

Appellant and his codefendant, Kyle Reed (“Codefendant”), at their joint jury

trial for the killing of Ernest Miller (“Decedent”).   By way of background,

Decedent was a retired police officer and maintained a photography studio

on the first floor of his residence on the 2600 block of West Oakdale Avenue

in the City of Philadelphia.   According to the Commonwealth, Codefendant

paid Decedent three or four years earlier to find modelling jobs for his then

girlfriend, Raffinnee Taylor, but she received no offers. The Commonwealth

alleged Codefendant, a few weeks before the killing, learned Decedent was

still in business at his home on West Oakdale Avenue. Codefendant, along

with Appellant and Michael Grant, planned to go to Decedent’s residence to

recover his money from Decedent.

      On the afternoon of December 28, 2008, Appellant, Codefendant, and

Grant allegedly went to Decedent’s residence           Although there was no

evidence of forced entry, a gunfight occurred on the first floor of the home

that involved at least two firearms.     Decedent and Grant suffered fatal

gunshot wounds.      Appellant suffered a gunshot wound to his pelvis.


5
 The Commonwealth agrees the separate sentence for robbery should have
merged with the sentence for second-degree murder and should be vacated.
Commonwealth’s Brief at 1 n.1.




                                     -2-
J. S52002/14


Codefendant allegedly dragged Grant from the residence, but left him

outside by the front door, and drove Appellant to Einstein Hospital.

      Duane Tate was driving near the scene of the shooting, and saw

Appellant limp to the passenger side of a dark sedan with front-end damage

near the 2500 block of West Oakdale Avenue.6 Video surveillance at Einstein

Hospital showed an individual exit from the passenger side of a similar

vehicle in a parking lot near the emergency room at 4:13 p.m., and limp

toward the emergency room.

      None of the firearms involved in the shooting were found, and no

physical    evidence   linked   Appellant   or   Codefendant   to   the    shooting.

However, investigators obtained statements from Grant’s wife, Michelle

Hinds, and Codefendant’s former girlfriend, Taylor, implicating Codefendant

and placing Appellant at the scene of the shooting. Appellant was charged

on January 6, 2009, with homicide, robbery, criminal conspiracy, and related

offenses.

      Appellant proceeded with Codefendant to a joint jury trial beginning

November 26, 2012. The Commonwealth, inter alia, called Grant’s wife, who

testified that on the afternoon of December 28, 2008, Grant told her he was

“making a run with [Codefendant.]”          N.T., 11/26/12, at 131.       Later that


6
 Tate subsequently identified Appellant at a preliminary hearing on February
3, 2010. N.T., 11/28/12, at 179. At the time of trial, Tate was declared
unavailable and his preliminary hearing testimony was read into the record.
Id. at 173.



                                       -3-
J. S52002/14


evening, she met Codefendant in the Germantown section of Philadelphia,

and he stated there was a shootout and Grant “didn’t make it back from this

one.” Id. at 116, 120-21. He told her Grant and another friend were shot,

Grant was dead, and the person who shot Grant was dead. Id. at 122-23.

He described how he attempted to drag Grant to the car, but decided to

leave him to take the other friend to a hospital. Id. at 121-22.

      The Commonwealth also called Taylor, Codefendant’s former girlfriend,

and introduced three prior statements she gave to police, two on December

30, 2008, and one on January 2, 2009.7      Id. at 169-70, 188-89, 207-08;

N.T., 11/28/12, at 99-122.      In her first statement on December 30th,

Taylor identified pictures of Appellant, Codefendant, and Grant and told

detectives they were friends.     N.T., 11/28/12, at 105.     In her second

statement on December 30th, she further described the past friendship

between Appellant and Codefendant. Id. at 113-14. In her third statement

on January 2nd, Taylor indicated “a few weeks” before the shooting, she told

Codefendant she saw Decedent at his residence during an audition. Id. at

120-21. Codefendant “got mad,” told her Decedent owed him money, and

stated he would “go down there to see” Decedent.         Id. at 120.   When

7
  Taylor’s first statement was taken at 11:55 a.m., on December 30, 2008,
the second at 4:30 p.m., that same day, and the third at 8:45 p.m., on
January 2, 2009. Taylor adopted her first statement at trial, but recanted
her second and third statements. She asserted detectives used coercive
interrogation tactics, including detaining her incommunicado from December
29, 2008, to January 2, 2009, and keeping her shackled in an interview
room at the Homicide Unit without food and water.



                                    -4-
J. S52002/14


detectives asked whether Decedent owed Codefendant money, Taylor

responded Codefendant paid Decedent several hundred dollars four years

earlier for a modelling program, but she did not get a job. Id. at 119, 121.

She further stated that on the evening of December 28, 2008, Codefendant

told her “Vince, Mike and the boy Emir got shot.”8 Id. at 121.

     On December 3, 2012, the jury found Appellant and Codefendant

guilty of second-degree murder, robbery, and conspiracy to commit robbery,

and not guilty of possessing an instrument of crime.    That same day, the

trial court imposed a sentence of life imprisonment for second-degree

murder and concurrent sentences of five to ten years’ imprisonment each for

conspiracy and robbery.

     Appellant did not file post-sentence motions, but filed a timely notice

of appeal on December 18, 2012, and later complied with the trial court’s

order to submit a Pa.R.A.P. 1925(b) statement. The presiding judge retired,

and a Rule 1925(a) opinion was not authored.

     Appellant presents the following questions on appeal:

           Is [A]ppellant entitled to an arrest of judgment with
        respect to his convictions for second degree murder,
        robbery, and criminal conspiracy since the evidence is
        insufficient to sustain the verdicts of guilt . . . ?

           Is [A]ppellant entitled to have his separate sentence for
        robbery vacated since the imposition of a separate


8
  Taylor previously identified “Vince” as Appellant, “Mike” as Grant, and
referred to Decedent as “Emir”. N.T., 11/28/12, at 105, 119.



                                    -5-
J. S52002/14


            sentence for robbery following conviction for second
            degree murder violates double jeopardy?

Appellant’s Brief at 4.

      Appellant first claims the evidence was insufficient to sustain the

verdicts.     He asserts “[t]he Commonwealth’s evidence failed to establish

[his] identity as a shooter or as a participant in the incident resulting in

[Decedent’s] death.”       Id. at 17.    According to Appellant, there was no

evidence “that he removed any property or attempted to remove any

property from [Decedent], that he fired a weapon or that he was responsible

for the victim’s death.” Id. at 18. He claims he “was merely present during

the incident and, therefore, not criminally culpable” as an accomplice or a

coconspirator. Id. We disagree.

      The principles governing our review of the sufficiency of the evidence

are as follows:

            The standard we apply in reviewing the sufficiency of
            evidence is whether, viewing all the evidence admitted at
            trial in the light most favorable to the verdict winner, there
            is sufficient evidence to enable the factfinder to find every
            element of the crime beyond a reasonable doubt. In
            applying the above test, we may not weigh the evidence
            and substitute our judgment for that of the fact-finder. In
            addition, we note that the facts and circumstances
            established by the Commonwealth need not preclude every
            possibility of innocence.        Any doubts regarding a
            defendant’s guilt may be resolved by the fact-finder unless
            the evidence is so weak and inconclusive that as a matter
            of law no probability of fact may be drawn from the
            combined circumstances. The Commonwealth may sustain
            its burden of proving every element of the crime beyond a
            reasonable doubt by means of wholly circumstantial
            evidence. Moreover, in applying the above test, the entire


                                        -6-
J. S52002/14


        record must be evaluated and all evidence actually
        received must be considered. Finally, the trier of fact
        while passing upon the credibility of witnesses and the
        weight of the evidence produced, is free to believe all, part
        or none of the evidence.

Commonwealth v. Lambert, 795 A.2d 1010, 1014 (Pa. Super. 2002)

(citations and some punctuation omitted).

     However,

        [w]hile reasonable inferences must be drawn in the
        Commonwealth’s favor, the inferences must flow from
        facts and circumstances proven in the record, and must be
        of such volume and quality as to overcome the
        presumption of innocence and satisfy the jury of the
        accused’s guilt beyond a reasonable doubt. The trier of
        fact cannot base a conviction on conjecture and
        speculation and a verdict which is premised on suspicion
        will fall even under the limited scrutiny of appellate review.

Commonwealth v. Robinson, 817 A.2d 1153, 1158 (Pa. Super. 2003)

(citations, emphasis, and some punctuation omitted).

     The elements of the relevant crimes are as follows. “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.”

Lambert, 795 A.2d at 1015 (citing 18 Pa.C.S. § 2502(b)).           The phrase

“perpetration of a felony,” in relevant part, means the act of “being an

accomplice in the commission of, or an attempt to commit, or flight after

committing or attempting to commit robbery[.]”       Id. (citing 18 Pa.C.S. §

2502(d)). “[A]n accomplice is someone who, ‘with the intent of promoting

or facilitating the commission of the offense aids or agrees or attempts to



                                    -7-
J. S52002/14


aid [another person] in planning or committing’ the crime.”        Id. at 1024

(citing 18 Pa.C.S. § 306(c)(1)(ii)).

      Conspiracy   requires   the      Commonwealth   to   establish   “that   the

defendant entered an agreement to commit or aid in an unlawful act with

another person or persons with a shared criminal intent and an overt act

was done in furtherance of the conspiracy.”       Id. at 1016 (discussing 18

Pa.C.S. § 903).

             A conspiracy is almost always proved through
         circumstantial evidence. The conduct of the parties and
         the circumstances surrounding their conduct may create a
         web of evidence linking the accused to the alleged
         conspiracy beyond a reasonable doubt. . . .

                                    *    *    *

            Among the circumstances which are relevant, but not
            sufficient by themselves, to prove a corrupt
            confederation are: (1) an association between
            alleged conspirators; (2) knowledge of the
            commission of the crime; (3) presence at the scene
            of the crime; and (4) in some situations,
            participation in the object of the conspiracy. The
            presence of such circumstances may furnish a web of
            evidence linking an accused to an alleged conspiracy
            beyond a reasonable doubt when viewed in
            conjunction with each other and in the context in
            which they occurred.

Id. (citations and some punctuation omitted).

      Under 18 Pa.C.S. § 3701, “[a] person is guilty of robbery if, in the

course of committing a theft, he . . . inflicts serious bodily injury.”        18

Pa.C.S. § 3701(a)(1)(i).      “An act shall be deemed ‘in the course of




                                        -8-
J. S52002/14


committing a theft’ if it occurs in an attempt to commit theft or in flight after

the attempt or commission.” 18 Pa.C.S. § 3701(a)(2).

        It is well settled that a defendant may be held criminally liable for the

conduct of others. “An accomplice is also legally accountable for the conduct

of the other person involved in committing the crimes.” Commonwealth v.

Knox, 50 A.3d 749, 755 (Pa. Super. 2012) (citing 18 Pa.C.S. § 306(b)(3)).

Furthermore, the overt act in a conspiracy need not be committed by the

defendant. Id. Rather, liability extends to all actions of a coconspirator in

furtherance of the conspiracy. Id.

        Instantly, there was no physical or direct evidence linking Appellant to

either the shooting inside Decedent’s home, or a theft from Decedent, and

guilty verdicts based on a theory that Appellant was a principal in the killing

or a competed theft would be speculative.         See Robinson, 817 A.2d at

1158. Thus, the Commonwealth’s burden was to prove Appellant came to a

criminal agreement with Codefendant or Grant to use or threaten force to

deprive Decedent of property, and at least one conspirator took an overt act

in furtherance of that conspiracy to commit robbery.        See 18 Pa.C.S. §§

903, 3701(a)(1); Knox, 50 A.3d at 755. Critically, the Commonwealth was

also required to prove that Appellant intended to promote or facilitate the

commission of the attempted robbery during which Decedent was killed.

See 18 Pa.C.S. §§ 306(c)(1)(ii), 2502(b), (d); Lambert, 795 A.2d at 1015,

1024.



                                       -9-
J. S52002/14


     As to Appellant’s presence at the scene, we note Appellant, in two

interviews with detectives at Einstein Hospital,9 stated he was wounded

during a robbery near Broad Street and Olney Avenue, several miles from

Decedent’s residence.     See N.T., 11/27/12, at 79, 146.         However,

Decedent’s neighbor, Tate, identified Appellant and testified he was limping

from the direction of the 2600 block of West Oakdale Avenue, to a car on the

2500 block. N.T., 11/28/12, at 178-79. The jury also heard evidence that

Codefendant told Grant’s wife that Grant and another friend were shot, but

the person who shot Grant was dead.           N.T., 11/26/12, at 122-23.

Codefendant also told Taylor that Grant and Appellant were shot.       N.T.,

11/28/12, at 121.    Thus, there was sufficient circumstantial evidence to

conclude Appellant was present at the scene and wounded during the

shootout at Decedent’s residence.

     As to Appellant’s contention he was merely present at the time of the

shooting, the Commonwealth, through Taylor’s trial testimony and her prior

statements, presented evidence of an existing association between Appellant


9
   Detective Matthew Gillespie from Northwest Detectives and Detective
Schell, whose first name and assignment was not revealed at trial,
interviewed Appellant at Einstein Hospital in the morning of December 29,
2008. N.T., 11/27/12, at 70-72. Detective James Poulous from Northwest
Detectives interviewed Appellant later that same afternoon. Id. at 143.
Detective Poulous testified, without objection from the defense, that
Appellant gave inconsistent explanations and did not “give additional
information” after the detective confronted him. Id. at 146-48.       The
parties stipulated that Appellant was receiving several pain medications
following surgery. N.T., 11/29/12, at 19.



                                    - 10 -
J. S52002/14


and   Codefendant.10     At   trial,    Taylor     acknowledged   Appellant   and

Codefendant were friends.     N.T., 11/26/12, at 154.         Taylor further told

detectives Appellant and Codefendant were friends for as long as she knew

Codefendant, and she used to see Appellant at Codefendant’s house “doing a

lot of cleaning or just hanging around if [Codefendant] needed him to do

something.” N.T., 11/28/12, at 113.

      Several weeks before the shooting, Codefendant told Taylor he

intended to “see” Decedent regarding the alleged debt. Id. at 120. On the

afternoon of the shooting, Grant told his wife he was “making a run” with

Codefendant. N.T., 11/26/12, at 131.            Appellant, Codefendant, and Grant

approached Decedent’s residence dressed in dark clothes.11            Police also

found a pair of handcuffs, a set of keys, and a walkie-talkie outside

Decedent’s home. N.T., 11/27/12, at 9, 33. Although no firearms involved

in the shooting were found, expert testimony established at least one

firearm, likely a revolver, was used to shoot at Decedent, while Decedent

10
   To the extent Appellant asserts Taylor’s prior statements were unworthy
of belief, such assertions go to the weight, not the sufficiency of the
evidence. See Lambert, 795 A.2d at 104.
11
   The jury was able to view Grant’s and Appellant’s clothing from the
shooting. N.T., 11/27/12, at 36 (discussing hoody sweatshirt at scene with
bullet hole and blood matched by DNA to Grant), 152 (describing Appellant’s
clothes as “black track suit, jacket, . . . matching pants, black boot, [and]
black hat with a ‘G’ on it”). Moreover, Taylor’s first statement to police
indicated Appellant was wearing dark jeans and a dark shirt. N.T., 11/28/12
at 104. The Commonwealth, in closing argument, argued the dark clothes
supported its theory that Codefendant “went down there on a mission to
take care of business.” N.T., 11/29/12, at 78.



                                       - 11 -
J. S52002/14


fired toward the front doorway of his home with a Glock-type semi-

automatic.    Id. at 47, N.T., 11/28/12, at 56-58.    Moreover, despite the

evidence establishing Appellant had been shot at the 2600 block of West

Oakdale Avenue, he told detectives he was shot near Broad Street and Olney

Avenue.

     This circumstantial evidence, when read in a light most favorable to

the Commonwealth, sustained the following inferences.     Codefendant went

to Decedent’s residence to resolve a perceived debt, and arranged for

Appellant and Grant to accompany him. Appellant, Codefendant and Grant

approached Decedent’s residence dressed in dark clothing and with at least

one firearm, a pair of handcuffs, and at least one walkie-talkie among them.

Grant entered Decedent’s residence and was mortally wounded inside the

home.     Appellant was within sufficient distance to be shot.   Codefendant

dragged Grant from the home, but left him outside the residence to assist

Appellant.     Significantly, the only connection between Appellant and

Decedent was Codefendant’s statement to Taylor that he intended to meet

Decedent about the debt.

     Given these inferences, we conclude that the jury was entitled to find

(1) Appellant entered into a criminal agreement to deprive Decedent of

money, (2) the use of force was within the scope of the conspiracy, (3)

Appellant intended to assist Codefendant to take Decedent’s money when

approaching Decedent’s home, and (4) Decedent was killed during the



                                    - 12 -
J. S52002/14


perpetration of an attempted robbery.        See Knox, 50 A.3d at 757;

Lambert, 795 A.2d at 1016.       Thus, we discern no merit to Appellant’s

contention that the evidence only established his “mere presence” at the

scene and conclude no relief is due on the convictions for conspiracy,

robbery, and second-degree murder.

     Appellant next contends the trial court illegally sentenced him on both

second-degree murder and robbery. Appellant asserts the court’s sentences

for second-degree murder and the predicate felony offense of robbery

violated double jeopardy principles.12      Appellant’s Brief at 32 (citing

Commonwealth v. Tarver, 426 A.2d 569, 573 (Pa. 1981)).                As noted

above, the Commonwealth agrees limited relief is due on this claim.

     There is a common law history requiring robbery be merged with

second-degree murder at sentencing. See id. (overruling Commonwealth

v. Sparrow, 370 A.2d 712 (Pa. 1977), and holding robbery is “constituent

offense” of second-degree murder and thus “same offense” under double

jeopardy test in Blockburger v. United States, 284 U.S. 299 (U.S. 1932)).

However, the General Assembly, effective February 2003, created a

statutory merger provision, which states, “No crimes shall merge for


12
    Although raised for the first time on appeal, this issue challenges the
legality of the sentence on robbery and cannot be waived.              See
Commonwealth v. Tanner, 61 A.3d 1043, 1046 (Pa. Super. 2013)
(“challenges to an illegal sentence can never be waived and may be
reviewed sua sponte by this Court. An illegal sentence must be vacated.”
(citations and some punctuation omitted)).



                                   - 13 -
J. S52002/14


sentencing purposes unless the crimes arise from a single criminal act and

all of the statutory elements of one offense are included in the statutory

elements of the other offense.” 42 Pa.C.S. § 9765. Section 9765 reflects a

“strict     elements   approach,”    which       “preclude[s]     the   courts      of   this

Commonwealth from merging sentences for two offenses that are based on

a single criminal act unless all of the statutory elements of one of the

offenses      are   included   in   the    statutory      elements      of   the    other.”

Commonwealth           v.   Baldwin,       985     A.2d    830,    837       (Pa.    2009);

Commonwealth v. Quintua, 56 A.3d 399, 402 (Pa. Super. 2012).

          In Baldwin, the Pennsylvania Supreme Court observed:

            Labels, such as “pure elements test” and “strict elements
            approach,” have often led to greater mischief.         For
            example, in Whalen [v. United States, 445 U.S. 684,
            (1980)], the United States Supreme Court struggled to
            determine whether a felony murder conviction merged
            with a conviction for the underlying felony where a felony
            murder conviction could hinge on any one of six
            enumerated offenses. A “strict elements approach,”
            which does not consider the offenses as charged and
            proven in each particular case, invariably leads to
            the conclusion that the crimes do not merge.
            Nevertheless, a majority of the Court, relying on
            Blockburger (often used synonymously with “strict
            elements approach”) held that the two convictions merged
            for sentencing. In this regard, the Court demonstrated a
            recognition that examination of the elements of the crimes
            as charged is sometimes necessary, especially when
            dealing with an offense that can be proven in alternate
            ways.

Baldwin, 985 A.2d at 837 n.6 (emphasis added).




                                          - 14 -
J. S52002/14


     It is clear Section 9765 has disrupted at least some of the prior

decisional law regarding merger. See Commonwealth v. Quintua, 56 A.3d

at 402 (holding burglary and criminal trespass do not merge).      However,

Tarver’s analysis was based on a strict elements approach rooted in

Blockburger, which, in turn, reflects principles similar to those adopted by

the General Assembly when enacting Section 9765. See Baldwin, 985 A.2d

at 837 n.6.       Thus, Tarver remains binding authority on this Court.

Accordingly, we agree with the parties that Appellant’s conviction for murder

of the second degree and robbery merge, and vacate the sentence for

robbery.    Because our decision does not affect the aggregate sentence, a

remand     for   resentencing   is   unnecessary.   See   Commonwealth v.

Henderson, 938 A.2d 1063, 1067-68 (Pa. Super. 2007).

     Judgment of sentence affirmed in part. Sentence for robbery vacated.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 6/8/2015




                                       - 15 -
