J-A26001-18


                             2019 PA Super 34

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT
                                                          OF
                                                     PENNSYLVANIA
                         Appellee

                    v.

DIANE MCCLELLAND,

                         Appellant                  No. 398 WDA 2017


        Appeal from the Judgment of Sentence Entered June 6, 2013
           In the Court of Common Pleas of Washington County
           Criminal Division at No(s): CP-63-CR-0002056-2011


BEFORE: BENDER, P.J.E., SHOGAN, J., and MURRAY, J.

OPINION BY BENDER, P.J.E.:                     FILED FEBRUARY 11, 2019

     Appellant, Diane McClelland, appeals from the judgment of sentence of

24½-49 years’ incarceration, imposed following her conviction for conspiracy,

dealing in proceeds of unlawful activity, receiving stolen property, and

providing false information to law enforcement.    Appellant challenges the

sufficiency and weight of the evidence supporting her convictions, and the

discretionary aspects of her sentence.    After careful review, we reverse

Appellant’s conviction for conspiracy to commit homicide, and remand for

resentencing, but otherwise leave her remaining convictions intact.

     The trial court summarized the facts adduced at trial as follows:
           During the jury trial conducted February 26, 2013, through
     March 1, 2013, the jury heard evidence that [Appellant] and her
     co-defendants, [Appellant]’s husband and step-son, were
     engaged in numerous burglaries and thefts of cash from the home
     of Evelyn Stepko, their elderly neighbor, then 92 years of age,
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     who lived alone, beginning in August of 2009 and continuing
     through July 18, 2011, when Evelyn Stepko was found murdered
     in her home.

            It was established at trial that police had responded to
     reports on several occasions to investigate thefts reported by the
     victim. Testimony demonstrated that the victim had hidden large
     amounts of cash in her home, and that much of the currency dated
     in the 1980’s and the 1990’s. Although there was no evidence
     that [Appellant] physically participated in the invasions of Ms.
     Stepko’s home, … it was established that [Appellant] was handling
     all of the cash proceeds of the burglaries: [Appellant] made the
     majority of the deposits of cash stolen from Ms. Stepko, large
     amounts of moldy and musty currency dated in the 1980’s and
     1990’s were found in the home of [Appellant] and her co-
     defendant husband, David A. McClelland; [Appellant] made the
     final decisions on negotiations for the purchase of two pieces of
     real estate using stolen cash; [Appellant] reimbursed her co-
     defendant step-son when her co-defendant husband made a
     purchase from the step-son’s share of the “loot”; [Appellant]
     made large cash purchases with the proceeds of the burglaries
     including the purchase of a late model Lincoln Navigator and the
     costs of remodeling … her home; and [Appellant] admittedly
     accepted cash proceeds, which she knew were from at least one
     burglary, but continued to deal in the proceeds of the burglaries
     thereafter.

           [Appellant] represented to authorities that the lavish
     expenditures were the result of lottery and casino winnings.
     However, testimony at trial established that [Appellant] and her
     codefendants gambled large sums of money at the Meadows
     Casino in Washington, Pennsylvania, and neither [Appellant] nor
     her co-defendants, ever won a jackpot.

            At no time did [Appellant] report the criminal activity to
     police or attempt to abandon the conspiracy. Also, after M[]s.
     Stepko’s murder was discovered, [Appellant] gave conflicting
     statements to police regarding her husband’s whereabouts on the
     day of the murder. [Appellant]’s husband ultimately pled guilty
     to Ms. Stepko’s murder on October 15, 2012, committed during
     an invasion of her home. [Appellant]’s step-son was also found
     guilty of Ms. Stepko’s murder on June 6, 2013, following a trial.

Trial Court Opinion (TCO), 10/25/17, at 5-6 (citations omitted).


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       At the conclusion of her trial, the jury convicted Appellant of dealing in

proceeds of unlawful activity (DPUA), 18 Pa.C.S. § 5111(a)(1); receiving

stolen property (RSP), 18 Pa.C.S. § 3925; hindering apprehending or

prosecution (HAP), 18 Pa.C.S. § 5105(a)(5) (“provides false information to a

law enforcement officer”); and criminal conspiracy,1 18 Pa.C.S. § 903. On

June 6, 2013 (order filed June 21, 2013), the trial court sentenced Appellant

to consecutive terms of 20-40 years’ incarceration for criminal conspiracy to

commit homicide, 2-4 years’ incarceration for DPUA, 2-4 years’ incarceration

for RSP, and 6-12 months’ incarceration for HAP, for an aggregate term of

24½-49 years’ incarceration.2 Appellant filed a timely post-sentence motion,

which was denied by the court on October 17, 2013. Appellant filed a timely

notice of appeal, and a timely, court-ordered Pa.R.A.P. 1925(b) statement.

The trial court issued its first Rule 1925(a) opinion on March 31, 2014.




____________________________________________


1 The verdict slip contained a single entry for criminal conspiracy at count 2,
with multiple criminal objectives listed, as follows: “criminal conspiracy to
commit criminal homicide and/or dealing in proceeds of unlawful activity
and/or burglary and/or theft by unlawful taking[.]” Verdict Slip, 3/5/13, at 1
(unnecessary capitalization omitted). That entry was immediately followed by
an interrogatory asking the jury to determine if the Commonwealth “proved
one or more of the following as the objectives of the conspiracy or the natural
and probable consequences of a co-conspirator’s conduct,” where criminal
homicide, dealing in proceeds of unlawful activity, burglary, and theft by
unlawful activity were subsequently listed. Id. (unnecessary capitalization
omitted). The jury circled “Yes” by each of the four listed crimes. Id.

2 Appellant received no further penalty for the conspiracies to commit the
lesser offenses.

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      On August 13, 2015, this Court affirmed Appellant’s judgment of

sentence.   See Commonwealth v. McClelland, 131 A.3d 93 (Pa. Super.

2015) (unpublished memorandum).               However, as we noted in that

memorandum, Appellant’s “counseled brief fail[ed] to conform to even the

basic requirements of appellate advocacy.” Commonwealth v. McClelland,

No. 1806 WDA 2013, unpublished memorandum at 2. As such, we deemed

all of Appellant’s issues waived. Id. at 3.

      Appellant subsequently filed a timely, pro se PCRA petition seeking

reinstatement of her direct appeal rights, which was later amended by counsel

on September 16, 2016. By order dated March 1, 2017, the trial court granted

the petition, thereby reinstating Appellant’s direct appeal rights. Appellant

then filed a new notice of appeal on March 8, 2017, and a timely, court-

ordered Rule 1925(b) statement on April 24, 2017. The trial court issued a

new Rule 1925(a) opinion on October 25, 2017.

      Appellant now presents the following questions for our review:

       I.   Whether there was sufficient evidence to convict Appellant
            of [DPUA]?

      II.   Whether there was sufficient evidence to convict Appellant
            of conspiracy to commit homicide?

     III.   Whether there was sufficient evidence to convict Appellant
            of conspiracy to [DPUA]?

      IV.   Whether there was sufficient evidence to convict Appellant
            of conspiracy to commit burglary?

       V.   Whether there was sufficient evidence to convict Appellant
            of conspiracy to commit theft by unlawful taking?



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      VI.   Whether there was sufficient evidence to convict Appellant
            of [RSP]?

     VII.   Whether there was sufficient evidence to convict Appellant
            of [HAP]?

    VIII.   Whether the trial court erred when it denied Appellant’s
            post-trial motion for judgment of acquittal for [DPUA]?

      IX.   Whether the trial court erred when it denied Appellant’s
            post-trial motion for new trial?

       X.   Whether the trial court erred when it denied Appellant’s
            post-trial motion to modify sentence?

      XI.   Whether the [verdict] was against the weight of the
            evidence?

Appellant’s Brief at 3 (unnecessary capitalization omitted).

      The first nine questions presented for our review concern the sufficiency

of the evidence. Our standard of review of sufficiency claims is well-settled:

             A claim challenging the sufficiency of the evidence is a
      question of law. Evidence will be deemed sufficient to support the
      verdict when it establishes each material element of the crime
      charged and the commission thereof by the accused, beyond a
      reasonable doubt. Where the evidence offered to support the
      verdict is in contradiction to the physical facts, in contravention to
      human experience and the laws of nature, then the evidence is
      insufficient as a matter of law. When reviewing a sufficiency
      claim[,] the court is required to view the evidence in the light most
      favorable to the verdict winner giving the prosecution the benefit
      of all reasonable inferences to be drawn from the evidence.

Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000) (internal

citations omitted).

      Appellant first asserts that the evidence was insufficient to convict her

of DPUA. The Crimes Code defines that offense, in pertinent part, as follows:




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      (a) Offense defined.--A person commits a felony of the first
      degree if the person conducts a financial transaction under any of
      the following circumstances:

         (1) With knowledge that the property involved, including
         stolen or illegally obtained property, represents the
         proceeds of unlawful activity, the person acts with the intent
         to promote the carrying on of the unlawful activity.

18 Pa.C.S. § 5111(a)(1).

      Appellant argues that “she believed the money her husband possessed

had derived from his earnings from a private lottery as well as a Massachusetts

casino, her biweekly paycheck, and her husband’s disability check.”

Appellant’s Brief at 15. However, Appellant concedes that she “admitted to

having knowledge of her husband’s involvement in a burglary on one

occasion.” Id. Nevertheless, she asserts that she “implored him to cease all

[criminal] activities” at that time. Id. Thus, as “Section 5111 requires intent

to promote and carry on the unlawful activity,” Appellant argues that “there

is insufficient evidence that she possessed such intent.” Id.

      The trial court rejected this claim, stating:

      [I]t was unquestionably established that [Appellant] knew that the
      property—the cash—was the proceeds of “unlawful activity”—
      here, burglary—and conducted “financial transactions” by making
      purchases with that cash and depositing the cash in various banks.
      18 Pa.C.S. § 5111. Given [Appellant]’s continued dealings with
      those funds, her admitted awareness of the burglaries, and the
      other evidence of a conspiratorial relationship between
      [Appellant], her husband, and her step-son, it was reasonable for
      the jury to infer that her transactions with the stolen money at
      least in part “promote[d] the carrying on of the unlawful activity.”
      Id. Therefore, the evidence was sufficient to convict [her] on the
      charge of [DPUA].

TCO at 9 (unnecessary capitalization omitted).


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      We agree with the trial court.         Appellant admitted that she had

knowledge of at least one burglary and continued to accept cash from her

husband and spend it. Moreover, the jury was free to discredit her statement

that she thought the money had come from gambling winnings. Therefore,

Appellant’s first claim lacks merit.

      For ease of disposition, we will address Appellant’s second sufficiency

claim, regarding conspiracy to commit homicide, last. Thus, we next consider

whether there was sufficient evidence to convict Appellant of conspiracy to

commit the crimes of burglary, DPUA, and theft.

      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 persons in the
         planning or commission of such crime or of an attempt or
         solicitation to commit such crime.

18 Pa.C.S. § 903(a). Moreover, “[i]f a person conspires to commit a number

of crimes, he is guilty of only one conspiracy so long as such multiple crimes

are the object of the same agreement or continuous conspiratorial

relationship.” 18 Pa.C.S. § 903(b).

      Here, as discussed by the trial court, the evidence produced by the

Commonwealth at trial clearly established a conspiracy to burgle the victim’s

home, and to receive and spend the illicit gains derived therefrom:



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J-A26001-18


      [B]ased on the evidence and testimony presented at trial, it was
      reasonable for the jury to believe that [Appellant] participated in
      the numerous burglaries of M[]s. Stepko’s home, from August
      2009 through July 2011, in a material way. [Appellant] admitted
      knowledge of the thefts which resulted from the burglaries and
      [she] profited handsomely from the same. She made significant
      cash purchases from the proceeds of the burglaries, including the
      late model Lincoln Navigator SUV and a house and property next
      door to hers. The obvious inference drawn from the testimony
      was that [Appellant] controlled the money that was stolen and
      controlled the accounts to which she deposited much of the cash.
      The evidence also showed that [Appellant] made multiple
      significant trips to the Meadows Casino in close temporal proximity
      to Ms. Stepko’s reports of burglaries.

            From this evidence, the jury found circumstances that
      showed the [Appellant] to be a willing and active member of the
      conspiracy to commit the burglaries and thefts, and to make the
      aforementioned purchases and bank deposits with the proceeds of
      those crimes.

TCO at 10-11.

      Appellant essentially argues that there was no evidence that she “agreed

to aid or act in conformity with [her husband’s] plans to burglarize.”

Appellant’s Brief at 19. We disagree. Even assuming that Appellant did not

initially have knowledge of her husband’s illegal activities, she became part of

the conspiracy to commit burglary, DPUA, and theft when she continued to

deal with the illicit funds after learning that her husband had burgled money

from the victim’s home. The jury was free to disbelieve her claims to the

contrary. Accordingly, we conclude that the evidence was sufficient to convict

Appellant of a conspiracy to commit those crimes.

      Next, we consider Appellant’s assertion that, even if she was a

participant in a conspiracy to commit the theft-related crimes of burglary,



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DPUA, and theft, the evidence was still insufficient to establish her guilt for

conspiracy to commit homicide. Here, there is no allegation that homicide

was the object of the conspiratorial agreement between Appellant, her

husband, and her stepson. Rather, the alleged (and proven) objectives of the

conspiracy at issue were to burglarize the victim’s home of cash, receive that

stolen property, and spend those proceeds unlawfully.

      If homicide is not the object of a conspiracy, then, by definition, there

is no conspiracy to commit criminal homicide. However,       the   trial   court

attempts to justify the jury’s verdict on conspiracy to commit homicide as

follows:

      Once th[e conspiracy to commit burglary] was established, the
      jury could then reasonably find that Evelyn Stepko’s murder was
      committed in furtherance of that conspiracy, and that the murder
      was the natural and probable consequence of the conspiracy to
      commit the burglaries and thefts. See [Commonwealth v.]
      Murphy, … 844 A.2d [1228,] 1238 [(Pa. 2004)]. The law
      considers burglary to be a violent crime, Commonwealth v.
      Chester, … 101 A.3d 56, 64 ([Pa.] 2014); Commonwealth v.
      Spotz, … 47 A.3d 63, 104 ([Pa.] 2012); Commonwealth v.
      Small, … 980 A.2d 549, 576 ([Pa.] 2009), and the repeated
      unwelcome invasions of an elderly person’s home undeniably
      involves the probable result of serious injury or death to the
      victim.

      The jury thus found that the death of Ms. Stepko was the natural
      and probable consequence of the conspiracy, [Commonwealth
      v.] Eiland, … [301] A.2d [651,] 653 [(Pa. 1973)], and that finding
      was reasonable in light of the testimony and evidence presented.
      Therefore, the evidence was sufficient to sustain [Appellant]’s
      conviction on the charge[] of criminal conspiracy to commit
      homicide[.]

TCO at 11-12 (unnecessary capitalization omitted).



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      As is apparent from the above passage, the trial court conflates the

crimes of murder and the wholly distinct crime of conspiracy to commit

homicide.   It may well be the case that a homicide was the natural and

probable consequence of the conspiracy to burglarize the victim’s home,

however, Appellant was not charged with a homicide offense.             She was

charged with the inchoate offense of conspiracy to commit homicide.

      “The crime of conspiracy is a ‘specific intent crime,’ in that it requires a

specific intent of promoting or facilitating the commission of the crime which

is the object of the conspiracy.” Commonwealth v. Weimer, 977 A.2d 1103,

1111 (Pa. 2009). Here, the trial court does not even state that the evidence

was sufficient to establish that Appellant intended to promote or facilitate the

commission of a homicide.        Instead, the court specifically identified the

burglary, theft, and DPUA as the target offenses of the conspiracy.           Our

independent review of the record fails to uncover any evidence of Appellant’s

intent to participate in or facilitate a homicide.

      Moreover, the trial court does not offer any case law suggesting that a

conspiracy to commit homicide can arise as the ‘natural and probable

consequence’ of a wholly different conspiracy offense. In no cases cited by

the court was a defendant held accountable for a conspiracy offense based on

their commission of a separate conspiracy offense.       In Eiland, supra, the

defendant was held culpable for a homicide based on his participation in a

conspiracy to commit homicide.        In Murphy, supra, the Supreme Court

determined that the evidence was sufficient to convict the defendant for the

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delivery of heroin due to his participation in a conspiracy to deliver heroin.

Neither Chester, Small, nor Spotz, involved conspiracy offenses.

      While a killing may be the natural and probable consequence of a

conspiracy to commit burglary, that logic does not extend to cover the

inchoate crime of conspiracy to commit homicide. An agreement to kill is not

the natural and probable consequence of a conspiracy to burglarize. Indeed,

if it were, then every co-conspirator to a robbery or burglary would be

simultaneously guilty of conspiring to kill the victim of such offenses. The trial

court’s logic, when taken to its inevitable conclusion, is patently absurd and,

thus, untenable as a legal theory.

      Our Supreme Court has contrasted the “general rule of law pertaining

to the culpability of conspirators” with “the principle that first degree murder

is distinguished from all other degrees of murder by the existence of a specific

premeditated intent to kill harbored by the accused.”       Commonwealth v.

Wayne, 720 A.2d 456, 463-64 (Pa. 1998) (emphasis added). The Court went

on to warn that,

      [i]f the general rule of co-conspirator liability applied to eliminate
      the need to establish the existence of specific intent, then an
      accused conspirator could be culpable for first degree murder
      without proof that the accused shared the specific intent to kill,
      the element which distinguishes first degree murder from all other
      forms of homicide. Such a result was clearly not contemplated by
      the legislature when it delineated the elements distinguishing the
      various degrees of homicide. … To be guilty of first degree
      murder, each co-conspirator must individually be found to possess
      the mental state necessary to establish first degree murder-the
      specific intent to kill.



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Id. at 464 (emphasis in original). This logic applies equally to the crime of

conspiracy to commit homicide, because a conviction for such a conspiracy

also requires proof of the specific intent to kill, Weimer, supra, which is

identical to the mens rea requirement for first degree murder.

       Accordingly, for the aforementioned reasons, we conclude that the

evidence was not sufficient to prove Appellant’s participation in a conspiracy

to kill the victim in this case. There was no evidence proffered to establish

Appellant’s specific intent to kill the victim. The only theory upon which the

jury could have concluded that Appellant was guilty of a conspiracy to commit

homicide is not legally cognizable. As such, we reverse Appellant’s conviction

with respect to the offense of conspiracy to commit homicide.3

       Next, Appellant asserts that the evidence was insufficient to convict her

of RSP. Appellant’s argument is this regard is cursory, composed of a single

paragraph, the essence of which can be boiled down to a single phrase, where

Appellant argues, “the Commonwealth did not adequately link the existence

of the money and whether Appellant knew the property was stolen.”          See

Appellant’s Brief at 19.
____________________________________________


3  Appellant was charged and convicted of a single conspiracy offense,
encompassing multiple criminal objectives, including homicide. Thus, we
reverse her conviction only insofar as it contemplated homicide as a target
offense. The trial court is thus permitted to resentence Appellant for her
participation in a conspiracy to burglarize the victim. See 18 Pa.C.S. § 905
(a) (decreeing that conspiracy is a crime of the “same grade and degree as
the most serious offense which is … an object of the conspiracy”). In the
circumstances of this case, upon resentencing, Appellant’s conspiracy offense
must be graded as the equivalent to the burglary offense to which she
conspired.

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      As discussed above, this issue is without merit. Even according to her

own testimony, Appellant eventually learned of her husband’s burglaries, and

failed to return the illegal proceeds derived therefrom. “A person is guilty of

theft if he intentionally receives, retains, or disposes of movable property of

another knowing that it has been stolen, or believing that it has probably been

stolen, unless the property is received, retained, or disposed with intent to

restore it to the owner.” 18 Pa.C.S. § 3925(a) (defining the offense of RSP)

(emphasis added).        Clearly Appellant, by her own admission, retained

proceeds she knew to be stolen.

      Next, Appellant argues that evidence was insufficient to convict her of

HAP by providing false information to law enforcement officers. Her argument,

in its entirety, is as follows:
      Under the Pennsylvania Crimes Code, an individual may be
      convicted of [HAP] by providing false information to law
      enforcement where the individual, "with [intent] to hinder the
      apprehension, prosecution, conviction or punishment of another
      for a crime … [the individual] provides false information to a law
      enforcement officer." 18 Pa.C.S. § 5105(a)(5).

            In Appellant’s initial interview with police following [her
      husband’s] arrest, she stated that she and David were waiting for
      a washing machine to be delivered and that she and David
      watched movies most of the day [of the murder]. [N.T., 2/27/13,
      at] 244. She noted that David left the home at least two times
      that day-once around 1:00 p.m. when he noticed Ms. Stepko in
      her backyard, and again later in the evening to fix an umbrella on
      the deck. Id. [at] 246-[]47, 278-[]80. In her second interview
      with police, she again stated that the two were home throughout
      the day waiting for the washing machine. [N.T., 3/1/13, at] 621.
      She also stated that David did yard work that day and that she
      remembers seeing him on the deck, presumably fixing the
      umbrella. Id.


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            The Commonwealth attempted to establish that because she
      did not mention that the two watched movies that day, she lied to
      the police about David’s whereabouts on the day of Ms. Stepko’s
      death. Id. An omission of a minor detail about watching movies
      in her second interview is a far reach from providing false
      information to police in an attempt to shield another from
      punishment of a crime. As such, the Commonwealth failed to
      meet its burden of proof and Appellant should be acquitted of
      [HAP] by providing false information to law enforcement.

Appellant’s Brief at 19-20 (unnecessary capitalization omitted).

      The trial court did not address this argument with much specificity:

      The evidence presented here established that during the course
      of the investigation [Appellant] made several contradictory
      statements to police officers regarding her husband’s whereabouts
      and activities on the day of Ms. Stepko’s murder, while those
      officers were pursuing her husband’s prosecution. Taking those
      false statements along with the other evidence presented in its
      totality, the jury could reasonably infer that [Appellant]’s intent in
      making those contradictory statements to the police was to hinder
      their efforts to apprehend and prosecute her husband.

TCO at 13.

      Appellant is not entitled to relief, as she fails to cite any legal authority

for the proposition that “[a]n omission of a minor detail” is not a false

statement for purposes of Section 5105.        Here, Appellant’s statements to

police essentially provided an imperfect alibi for her husband on the day of

the murder. Thus, her statement regarding his specific activities on that day

was not dealing with a trivial matter. Furthermore, Appellant did not merely

omit a detail—she initially claimed they were watching movies all day while

waiting for a washing machine delivery. At the next interview, she claimed

her husband was outside working for a good portion of the day. See N.T.,

3/1/13, at 620-21.


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      Moreover, Appellant provided more false statements to police than her

argument suggests. Appellant initially told police that she had no knowledge

of her husband’s taking money from the victim’s home, and that their

expenditures, extravagant in relation to their income, were paid with gambling

winnings. N.T., 2/27/13, at 252-58. Later, during the second interview with

police, she admitted that she knew, before the first interview, that her

husband had received at least some of that money from burglarizing the

victim’s home. N.T., 3/1/13, at 611-12. Thus, we conclude that the evidence

was more than sufficient to support Appellant’s conviction for HAP by providing

false information to law enforcement officers.

      In Appellant’s eighh issue, she claims the trial court erred by denying

her motion for judgment of acquittal on the charge of DPUA and conspiracy to

DPUA. This claim concerns the sufficiency of the evidence, and is functionally

identical to issues 1 and 3.   As discussed above, those claims lack merit.

      Appellant next claims that the trial court erred by denying her post-

sentence motion for a new trial.      Appellant asserts that the arguments

contained therein “were based on the sufficiency of the evidence presented at

trial[,]” and overlap with the previously-raised sufficient claims. Appellant’s

Brief at 21. Accordingly, we conclude this claim lacks merit.

      In her penultimate claim, Appellant asserts that the trial court erred

when it denied her post-sentence motion to modify her sentence. As we are

remanding for resentencing in light of our decision to reverse Appellant’s




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conviction for the crime of conspiracy to commit homicide, this issue is

rendered moot.

      Finally, Appellant claims the verdict was against the weight of the

evidence. We apply the following standard of review to a challenge that a

verdict is against the weight of the evidence:

        An appellate court’s standard of review when presented with a
      weight of the evidence claim is distinct from the standard of review
      applied by the trial court:

         Appellate review of a weight claim is a review of the exercise
         of discretion, not of the underlying question of whether the
         verdict is against the weight of the evidence. Because the
         trial judge has had the opportunity to hear and see the
         evidence presented, an appellate court will give the gravest
         consideration to the findings and reasons advanced by the
         trial judge when reviewing a trial court’s determination that
         the verdict is against the weight of the evidence. One of the
         least assailable reasons for granting or denying a new trial
         is the lower court’s conviction that the verdict was or was
         not against the weight of the evidence and that a new trial
         should be granted in the interest of justice.

         This does not mean that the exercise of discretion by the trial
      court in granting or denying a motion for a new trial based on a
      challenge to the weight of the evidence is unfettered.         In
      describing the limits of a trial court’s discretion, we have
      explained:

         The term “discretion” imports the exercise of judgment,
         wisdom and skill so as to reach a dispassionate conclusion
         within the framework of the law, and is not exercised for the
         purpose of giving effect to the will of the judge. Discretion
         must be exercised on the foundation of reason, as opposed
         to prejudice, personal motivations, caprice or arbitrary
         actions. Discretion is abused where the course pursued
         represents not merely an error of judgment, but where the
         judgment is manifestly unreasonable or where the law is not
         applied or where the record shows that the action is a result
         of partiality, prejudice, bias or ill-will.


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Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013) (internal citations

omitted).

      Appellant provides less than a paragraph of argument, contending that:
      At trial, the Commonwealth failed to prove that Appellant had
      knowledge of David’s crimes. She believed David made money
      from his winnings at a Massachusetts casino and a private lottery.
      Further, Appellant was not involved in the planning of the
      burglaries that led to Ms. Stepko’s death. The jury's verdict was
      against the weight of the evidence, and thus, the trial court erred
      in denying post-trial motions in that respect.

Appellant’s Brief at 23.

      This underdeveloped argument is virtually indistinguishable from

Appellant’s sufficiency claims, and we reject it for the same reasons. The jury

was free to reject Appellant’s incredulous explanation for the source of their

income.     Moreover, Appellant misstates the facts adduced at trial, as she

admitted that the she knew about her husband’s participation in at least one

burglary, and yet she continued to deal with those ill-gotten gains.

Accordingly, this claim is meritless.

      In sum, we reverse Appellant’s conviction for conspiracy to commit

homicide, but otherwise leave her remaining convictions intact, including what

remains of her conspiracy offense (without homicide as a target of the

conspiracy).    As this likely impacts the sentencing scheme concocted by the

trial court, we vacate Appellant’s judgment of sentence in its entirety and

remand for resentencing.    See Commonwealth v. Goldhammer, 517 A.2d

1280, 1283 (Pa. 1986) (stating that where an appellate court upsets the trial

court’s overall sentencing scheme by vacating a conviction in a multiple-count


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appeal, the appellate court must remand for re-sentencing because

sentencing lies within the sole discretion of the trial court).

      Judgment of sentence reversed in part, vacated in part.     Case

remanded for resentencing. Jurisdiction relinquished.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/11/2019




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