J-S39003-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

PARRISH LINNEN,

                            Appellant                  No. 614 WDA 2016


          Appeal from the Judgment of Sentence Entered April 6, 2016
              In the Court of Common Pleas of Allegheny County
             Criminal Division at No(s): CP-02-CR-0013602-2013


BEFORE: BENDER, P.J.E., BOWES, J., and STRASSBURGER, J.*

MEMORANDUM BY BENDER, P.J.E.:                            FILED JULY 06, 2017

        Appellant, Parrish Linnen, appeals from the judgment of sentence of

an aggregate term of 25 to 50 years’ incarceration, imposed after he was

convicted of two counts of attempted homicide, 18 Pa.C.S. § 901(a), two

counts of recklessly endangering another person 18 Pa.C.S. § 2705, and one

count of conspiracy to commit homicide, 18 Pa.C.S. § 903(a). After review,

we vacate and remand for resentencing.

        On appeal, Appellant raises three issues for this Court’s review:

        I. The trial court erred when it denied [Appellant’s] motion for a
        mistrial when Commonwealth witness Irvin Green blurted out in
        front of the jury that [Appellant] had previously been charged
        with criminal homicide thereby denying [Appellant] a fair trial;


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*
    Retired Senior Judge assigned to the Superior Court.
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       II. The trial court erred when it denied [Appellant’s] motion for
       judgment of acquittal relative to criminal attempt [homicide]
       where the Commonwealth failed to present sufficient evidence to
       prove [Appellant’s] guilt beyond a reasonable doubt;

       III. The trial court erred when it denied [Appellant’s] motion for
       judgment of acquittal relative to criminal conspiracy where the
       Commonwealth failed to present sufficient evidence to prove
       [Appellant’s] guilt beyond a reasonable doubt[.]

Appellant’s Brief at 4 (unnecessary capitalization omitted).

       We have carefully examined the certified record, the briefs of the

parties, and the applicable law. Additionally, we have reviewed the thorough

opinion of The Honorable Randal Todd of the Court of Common Pleas of

Allegheny County.       We conclude that Judge Todd’s well-reasoned opinion

accurately disposes of the issues presented by Appellant.      See Trial Court

Opinion (TCO), 1/9/17, at 5-8 (rejecting Appellant’s claim that a mistrial was

warranted based on a remark made by Irvin Green during defense counsel’s

cross-examination); id. at 2-5 (summarizing the evidence presented at

Appellant’s trial); id. at 8-9, 11-12 (rejecting Appellant’s challenge to the

sufficiency of the evidence to sustain his attempted homicide and conspiracy

convictions).1 Accordingly, we adopt Judge Todd’s opinion as our own, and

reject Appellant’s three issues for the reasons set forth therein.
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  Moreover, we point out that, in regard to Appellant’s first issue, he does
  not develop any meaningful response to Judge Todd’s conclusion that
  defense counsel elicited the at-issue statement upon which he now claims
  a mistrial was warranted. See Appellant’s Brief at 10-11 (baldly stating
  that “[n]either the prosecution nor the defense intentionally elicited [the
  at-issue] statement[,]” with no further discussion of that contention).
  Appellant also cites no legal authority to support his assertion that the
(Footnote Continued Next Page)


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      Nevertheless, we are compelled to vacate Appellant’s sentence and

remand for resentencing. As Judge Todd points out in his opinion:

      [Appellant] was sentenced to two concurrent sentences of 15 to
      30 years for the convictions for the criminal attempt homicide
      convictions and a consecutive sentence of 10 to 20 years for
      conspiracy to commit homicide. [Appellant] should not have
      been sentenced for both the inchoate crimes of criminal attempt
      homicide and the criminal conspiracy related to the attempted
      homicides. Sentences for more than one inchoate crime related
      to the same crime are prohibited by 18 Pa.C.S.[] §[]906[,] which
      provides:

          A person may not be convicted of more than one offense
          defined by this chapter for conduct designed to commit or
          culminate in the commission of the same crime.        18
          Pa.C.S. § 906[.]

      Therefore, the sentence imposed must be corrected.

TCO at 12.


                       _______________________
(Footnote Continued)

  court’s cautionary instruction was insufficient to cure the prejudice he
  claims he suffered from that challenged remark. Id. at 11. Additionally,
  while Appellant’s second and third issues are framed as challenges to the
  sufficiency of the evidence to sustain his attempted homicide and
  conspiracy convictions, his entire argument is focused on attacking the
  credibility of the two victims’ testimony, averring that it “was fraught with
  inconsistencies and unreliability.” Id. at 14; see also id. at 14-17.
  Attacks on credibility determinations are challenges to the weight, not the
  sufficiency, of the evidence. See Commonwealth v. Gaskins, 692 A.2d
  224, 227 (Pa. Super. 1997). In any event, even had Appellant properly
  framed these issues as weight-of-the-evidence claims, we would conclude
  that Judge Todd’s opinion accurately addresses those assertions as well.
  See TCO at 9-10, 11-12 (addressing Appellant’s challenges to his
  attempted homicide and conspiracy convictions as both sufficiency-of-the-
  evidence claims and challenges to the weight of the evidence to support
  the jury’s verdict).




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       We agree with Judge Todd that Appellant’s sentence for conspiracy to

commit homicide violates section 906.2           “When a lower court improperly

convicts and sentences a defendant for two inchoate crimes, this Court has

the option to either remand for resentencing or amend the sentence

directly.”    See Commonwealth v. Cooke, 492 A.2d 63, 71 (Pa. Super.

1985).       Because in this case, the court imposed concurrent terms of

incarceration for Appellant’s two attempted homicide convictions, and a

consecutive term for his conspiracy offense, we conclude that vacating the

conspiracy sentence upsets the court’s overall sentencing scheme and

requires that we remand for resentencing. See Commonwealth v. Thur,

906 A.2d 552, 569-70 (Pa. Super. 2006) (stating that if our disposition

upsets the overall sentencing scheme of the trial court, we must remand so

that the court can restructure its sentence plan).



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2
  While Appellant does not challenge his sentence on appeal, our Supreme
Court has indicated that a violation of section 906 implicates the legality of
sentence. See Commonwealth v. Jacobs, 39 A.3d 977, 978 (Pa. 2012)
(accepting “review to determine whether [a]ppellant’s sentences for … two
inchoate crimes are illegal under 18 Pa.C.S. § 906”) (emphasis added).
“Legality of sentence questions are not waivable and may be raised sua
sponte by this Court.” Commonwealth v. Watley, 81 A.3d 108, 118 (Pa.
Super. 2013) (citations omitted). Additionally, we note that, “although
[s]ection 906 speaks in terms of ‘multiple convictions,’ the Superior Court
has interpreted this section to bar multiple sentences.” Jacobs, 39 A.3d at
978 n.1 (citing Commonwealth v. Grekis, 601 A.2d 1284, 1295 (Pa.
Super. 1992); Commonwealth v. Maguire, 452 A.2d 1047, 1049 (Pa.
Super. 1982)).



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      Judgment of sentence vacated.   Case remanded for resentencing.

Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/6/2017




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