J-A13007-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

DAVID J. MCCLELLAND

                        Appellant                   No. 1776 WDA 2013


            Appeal from the Judgment of Sentence June 6, 2013
            In the Court of Common Pleas of Washington County
            Criminal Division at No(s): CP-63-CR-0001884-2011


BEFORE: PANELLA, J., SHOGAN, J., and OTT, J.

CONCURRING AND DISSENTING MEMORANDUM BY OTT, J.:

FILED: September 21, 2015

      I must respectfully dissent from the majority decision with respect to

the conviction of conspiracy to commit second-degree murder.       As will be

discussed infra, I agree with the majority that there was sufficient testimony

and evidence presented that McClelland conspired with his father to

burglarize the neighbor’s home, but there was no evidence presented that

McClelland conspired with his father to kill the neighbor.     Accordingly, I

agree with McClelland that there is insufficient evidence to support the

conviction on that count.
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       Second-degree murder is defined as a homicide “committed when the

defendant was engaged as a principal or accomplice in the perpetration of a

felony.”1 18 Pa.C.S. § 2052(b).

       The statutory definition of conspiracy is:

       A person is guilty of conspiracy with another person or persons
       to commit a crime if with the intent of promoting or facilitating
       its commission he:

          (1) agrees with such other person or persons that they or
          one or more of them will engage in conduct which
          constitutes such crime or an attempt or solicitation to
          commit such crime; or

          (2) agrees to aid such other person or person in the
          planning or commission of such crime or attempt or
          solicitation to commit such crime.

18 Pa.C.S. § 903(a)(1),(2).

       Additionally,

       No person may be convicted of conspiracy to commit a crime
       unless an overt act in pursuant of such conspiracy is alleged and
       proved to have been done by him or by a person with whom he
       conspired.

18 Pa.C.S. § 903(e).

       Here, “such crime” is second-degree murder. As noted above, second-

degree murder contains three elements: (1) it must be committed by a

principal or accomplice; (2) there must be a homicide, either intended or

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1
  Section 2052(d) specifically lists burglary as one of the underlying felonies
that support the charge of second-degree murder.




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not; and (3) the homicide must have been committed during the

perpetration of a specifically listed felony.         Therefore, to be guilty of

conspiracy to commit a second-degree murder, one must have agreed to

engage or aid in the conduct that constitutes second-degree murder, and an

overt act to complete the crime must have occurred. There is no evidence

of record indicating McClelland ever agreed with his Father to kill the

neighbor.     Accordingly, under the instant factual scenario, there is

insufficient evidence to support the conviction for conspiracy to commit

second-degree murder.

      The evidence presented in this matter did allow the jury to convict

McClelland of second-degree murder.

      Evidence of record demonstrated that Father entered the neighbor’s

home through the basement window.             There was testimony Father was

physically   incapable   of   accomplishing    such    an   entry   on   his   own.

Additionally, a neighbor testified that an individual that could have been

McClelland was seen leaving the neighbor’s home, carrying a bag, at the

approximate time of the March 2011 burglary. Accepting these facts, even

though there was no physical evidence that McClelland was in the neighbor’s

residence that day, the jury would be allowed to infer that McClelland acted

as his Father’s accomplice, aiding his Father’s entry into the neighbor’s home

on the day she was stabbed to death.




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       There was also evidence presented allowing the jury to find McClelland

conspired with his Father to commit several of the burglaries, including the

ultimate, fatal crime. In this regard, the trial court correctly noted:

       Due to the repetitive nature of the larcenous activity over an
       extended period of time, [McClellan] was aware that the money
       was being acquired through the multiple and regular invasions
       into the home of [victim]. A conspiracy “may be inferred where
       it is demonstrated that the relation, conduct, or circumstances of
       the parties, and the overt acts of the co-conspirator sufficiently
       prove    the    formation    of    a    criminal    confederation.”
       Commonwealth v. McCoy, 69 A.3d 658, 7664 (Pa. Super.
       2013).

Trial Court Opinion, 4/29/2014, at 8.

       As a conspirator, one is responsible for the natural and probable

consequences of the object of the conspiracy. Father had committed at least

three other burglaries beginning in June, 2010,2 13 months prior to the fatal

burglary.    Under the specific facts in this matter, confrontation with the

neighbor was a risk of the burglary, but her murder was not necessarily a

natural and probable consequence of the burglary.        However, whether the

homicide was a natural and probable consequence of the burglary is

immaterial as the murder was committed during the perpetration of the

burglary. This fact is sufficient to sustain the conviction for second-degree

murder.

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2
  It is possible the burglaries began as early as August 2009. Neighbor
reported a burglary to the police, but the police could find no evidence of a
break-in.



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       As noted above, the relevant statutory definitions of conspiracy and

second-degree murder render it logically impossible to conspire to commit a

second-degree murder when the homicide is an unintended consequence of

the underlying felony.       In this, I am guided by the dissenting opinions of

Judges John M. Cleland and Richard B. Klein in Commonwealth v.

Marquez, 980 A.2d 145 ([pa. Super. 2009 (en banc).               Judge Cleland

cogently noted:

       Proving the existence of an agreement, however, does not prove
       the existence of a conspiracy. “Conspiracy” is not synonymous
       with “agreement.” Not all agreements constitute the crime of
       conspiracy. To prove the crime of conspiracy the Commonwealth
       must also prove the purpose of the agreement was to commit a
       specific crime.

Com. v. Marquez, 980 A.2d 145, 154 (Pa.Super.,2009)

       Judge Klein added,

       However, a defendant may not be found guilty of homicide
       simply because it appears some kind of confrontation was about
       to take place and another participant, without knowledge,
       request, or encouragement of the defendant, radically alters the
       nature of incident by a using deadly weapon that the defendant
       did not know the participant had. See Commonwealth v.
       Menginie, 477 Pa. 156, 383 A.2d 870, 873 (1978). Our Court
       has stated that a defendant may not be liable as a co-
       conspirator when he or she “had no expectation that a minor
       scuffle   would     unexpectedly    explode   into     murder.”
       [Commonwealth v.] Johnson, 791 A.2d [778] at 786 [(Pa.
       Super. 1998) (en banc)].

Id. at 151.3
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3
  I am aware Marquez addressed third-degree murder, not second.
Nonetheless, the logic in Marquez remains relevant herein.



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       Simply put, one cannot agree to participate in an unintended action.4

       I believe there may be some confusion over this concept because as a

conspirator, one is generally responsible for the natural and probable

consequences of the object of the conspiracy.             However, the definition of

second-degree murder includes the concept of shared culpability that is also

expressed in conspiracy.         Accordingly, it is unnecessary and improper to

charge a person with conspiracy to commit second-degree murder, because

all the elements of the conspiracy are included in the definition of the

second-degree murder itself.

       Finally, I note there is an axiom of law that holds while not all

accomplices      are     necessarily   co-conspirators,    all   co-conspirators   are

necessarily accomplices. The statutory definition of an accomplice is:

       A person is an accomplice of another person in the commission of an
       offense if:

              (1) with the intent of promoting or facilitating the
              commission of the offense, he:

                       (i) solicits such other person to commit it; or

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4
  In Commonwealth v. Wayne, 720 A.2d 456 (Pa. 1998), our Supreme
Court determined that one could not be guilty via conspiracy of first-degree
murder where that murder was not the object of the conspiracy. While one
is generally responsible for the natural and probable consequence of a
conspiracy, first-degree murder requires a specific intent to kill. If the
conspiracy does not include the murder, one cannot possess that specific
intent.




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                     (ii) aids or agrees or attempts to aid such other
                     person in planning or committing it.

18 Pa.C.S. § 306(c)(1)(i),(ii).

       One is not required to have agreed to plan or commit the crime to be

an accomplice. That requirement applies to a conspiracy. All the remaining

elements of being an accomplice are found in the definition of conspiracy.

Accordingly, conspiring to commit a burglary, one of the underlying felonies

to commit second-degree murder, necessarily makes one an accomplice to

that crime.     Therefore, if an unintended murder is committed during the

perpetration of the burglary, as happened instantly, one has committed

second-degree murder, but not the separate crime of conspiracy to commit

second-degree murder.5

       In light of the above analysis, I believe the only factual scenario in

which it would be proper to separately charge a person with conspiracy to

commit second-degree murder is when the conspiracy encompasses both

the underlying felony and the homicide.              The Commonwealth would be

required to prove the agreement to commit both the felony and the

homicide.       That    situation    is   not   instantly   present.   Because   the

Commonwealth did not present any evidence that McClelland conspired to

kill the victim, I believe there was insufficient evidence to sustain his

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5
  In this scenario, the defendant would be guilty of conspiracy to commit
burglary and second-degree murder.



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conviction on the charge of conspiracy to commit second-degree murder, but

all other convictions should be affirmed.6




____________________________________________


6
  I am aware that this would have no practical effect on McClelland’s
sentence, as he is serving a mandatory life sentence for second-degree
murder, and the conspiracy sentence runs concurrently.



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