J-A13043-20
                               2020 PA Super 208

COMMONWEALTH OF PENNSYLVANIA,           :    IN THE SUPERIOR COURT OF
                                        :          PENNSYLVANIA
                   Appellee             :
                                        :
          v.                            :
                                        :
WALDEMAR RIVERA,                        :
                                        :
                   Appellant            :    No. 2101 EDA 2019

       Appeal from the Judgment of Sentence Entered March 1, 2019
              in the Court of Common Pleas of Lehigh County
           Criminal Division at No(s): CP-39-CR-0004317-2017

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

OPINION BY STRASSBURGER, J.:                        Filed: August 25, 2020

      Waldemar Rivera (Appellant) appeals from the March 1, 2019

judgment of sentence1 imposed after a jury found him guilty of second-

degree murder,2 robbery, burglary, and three counts of conspiracy (second-

degree murder; robbery; burglary).      Upon review, we vacate Appellant’s

convictions and sentences for conspiracy to commit second-degree murder

and conspiracy to commit burglary, and affirm his judgment of sentence in

all other respects.


1 Appellant purported to appeal from the June 21, 2019 order denying his
post-sentence motion. “In a criminal action, an appeal properly lies from
the judgment of sentence made final by the denial of post-sentence
motions.” Commonwealth v. Shamberger, 788 A.2d 408, 410 n.2 (Pa.
Super. 2001) (en banc) (citation omitted). We have corrected the caption
accordingly.
2 In Pennsylvania, felony-murder and second-degree murder refer to the
same offense, codified at 18 Pa.C.S. § 2502(b), and are referred to
interchangeably in our jurisprudence and within this opinion.

*Retired Senior Judge assigned to the Superior Court.
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         We begin with the following factual summary provided by the trial

court.

                Lehigh County Homicide Task Force was dispatched to a
         body discovered [] on August 13, 2017, in the city of
         Allentown[.] Police arrived and found [Jermaine Jerome Taylor
         (Victim)], deceased in his bedroom on the third floor of his
         residence. Numerous shell casings were found scattered on the
         floor but no firearms were located on scene. Police learned that
         [Victim’s] 10-year-old daughter was present at the time of the
         shooting and [was] hiding in the room.        The investigation
         revealed that [Victim] was shot and killed during a home
         invasion robbery by a group of four individuals including
         [Appellant].

               While canvassing the crime scene, the police noticed blood
         droplets dispersed throughout the residence. Blood droplets
         were discovered throughout the bedroom, down the stairs, and
         outside the residence. Police followed the blood trail through the
         city streets and discovered a suspect, later revealed to be co-
         conspirator Isaac Navarro, with his hand bandaged. Navarro
         was interviewed and the information eventually led the police to
         the arrest of the other conspirators.

               The co-conspirators all testified at trial about their role in
         the conspiracy that led to the death of [Victim].               The
         conspirators believed that [Victim] was involved in dealing drugs
         and had money and drugs in his home. A scheme was formed
         by [Appellant] and his friends to rob [Victim] through threat of
         force and the group armed themselves with a gun. [Appellant]
         and his co-conspirators proceeded to sneak through alleyways
         on foot, and under cover of darkness broke into [Victim’s]
         residence.

               Upon entering the residence, the group assaulted [Victim]
         and threatened him with a gun. The assailants dragged [Victim]
         upstairs and demanded that he open his safe. [Victim] opened
         his safe, but grabbed his .40 caliber handgun, and fired a single
         shot which struck co-conspirators Brandon Eanes and Sasha
         Vargas. [] Navarro also injured his hand from striking [Victim]
         repeatedly. The testimony at trial revealed that [Victim] was
         then shot multiple times in the presence of his minor daughter
         and left for dead.    [Victim’s] cause of death was multiple

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        gunshot wounds. The testimony placed the gang of thieves’ gun
        in the possession of [Appellant]. The group fled on foot with
        [Victim’s] gun, a samurai sword, cash, and some marijuana.

              Surveillance photos and video were recovered from nearby
        alleyways confirming the presence of all conspirators. [Victim’s]
        handgun was turned in to the police by [Appellant’s] mother a
        few months after the robbery. The .380 caliber firearm used to
        murder [Victim] was never recovered.

               [Appellant] was arrested and interviewed on August 16,
        2017, after being provided with his Miranda[3] warnings.
        [Appellant] admitted to breaking and entering the residence and
        participating in the robbery of [Victim]. However, [Appellant]
        claimed [] Eanes had the gun and alleged that he got nothing
        from the robbery. [Appellant] asserts that he did not shoot
        [Victim].

Trial Court Opinion, 6/21/2019, at 3-4 (footnotes omitted).

        Based on the foregoing, Appellant was charged with one count each of

criminal homicide, robbery, and burglary, and three counts of conspiracy

(criminal homicide; robbery; burglary). Appellant proceeded to a jury trial

from February 26, 2019 to March 1, 2019. The jury heard testimony from,

inter alia, Navarro, Eanes, and Vargas.     During trial, Appellant attempted

unsuccessfully to locate Victim’s daughter in order to call her as a defense

witness. Therefore, Appellant sought to introduce her videotaped interview

with police, which occurred a few hours after Victim’s death, based on her

being an unavailable witness and the interview qualifying under either the

excited-utterance or present-sense-impression exceptions to the rule against

hearsay. See N.T., 2/28/2019, at 100-04. The trial court denied Appellant’s

3   Miranda v. Arizona, 384 U.S. 436 (1966).

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request, concluding that Victim’s daughter was not unavailable for purposes

of the hearsay rule, and regardless, the interview did not fall within either

exception. Id. at 107-08.

      On March 1, 2019, the jury found Appellant guilty as indicated above.4

Appellant was sentenced that same day to the following terms of

incarceration: life imprisonment without parole for second-degree murder;

10 to 20 years for robbery; 10 to 20 years for burglary; 20 to 40 years for

conspiracy to commit criminal homicide;5 10 to 20 years for conspiracy to



4As to Appellant’s conviction of conspiracy to commit second-degree
murder, we note the following.

      The Crimes Code does not expressly set forth that one can be
      found guilty of second-degree murder as a conspirator. Other
      jurisdictions have determined that one cannot conspire to
      commit felony murder. This Court has also repeatedly noted
      that one cannot attempt to commit felony murder because an
      attempt is a specific intent crime, as is conspiracy. We note,
      however, that our Supreme Court has concluded that one can
      conspire to commit third-degree murder, which does not require
      proof of a specific intent to kill.

Commonwealth v. Mitchell, 135 A.3d 1097, 1101 (Pa. Super. 2016)
(citations omitted). Because Appellant does not challenge his conspiracy to
commit second-degree murder conviction on this basis, and we ultimately
vacate this conviction for reasons discussed infra, we need not consider this
further.
5 As noted supra, the jury found Appellant guilty of conspiracy to commit
second-degree murder. The trial court sentenced Appellant to 20 to 40
years of incarceration for conspiracy to commit second-degree murder, but
subsequently changed the sentencing sheet to read “conspiracy to commit
criminal homicide,” while keeping the sentence the same. See Corrected
Sentence Sheet, 3/4/2019. This was error. Inchoate crimes have the same
maximum sentences as the underlying object crime. See Commonwealth
(Footnote Continued Next Page)

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J-A13043-20

commit robbery; and 10 to 20 years for conspiracy to commit burglary. All

sentences were set to run concurrently, except for the 10-to-20-year term of

incarceration for conspiracy to commit robbery, which was ordered to run

consecutively to the other five charges.

      On March 6, 2019, Appellant filed a post-sentence motion, alleging

that the felony-murder rule6 is unconstitutional, the evidence was insufficient

and the verdict was against the weight of the evidence, the consecutive

sentence was “excessive and unreasonable[,]” and the trial court erred in

excluding the videotaped interview of Victim’s daughter as hearsay not

subject to an exception.           Post-Sentence Motion, 3/6/2019, at 2.   The trial

court ordered Appellant and the Commonwealth to file briefs in response to


(Footnote Continued)   _______________________

v. Hoke, 962 A.2d 664, 668 (Pa. 2009), citing 18 Pa.C.S. §§ 106(b) and
905(a). Therefore, the trial court should have sentenced Appellant at this
count to life imprisonment without “correcting” the sentence sheet in conflict
with the jury’s verdict. However, we need not resolve these sentencing
issues, because, as discussed infra, we vacate Appellant’s conspiracy to
commit second-degree murder conviction and sentence.
6 As discussed infra, our Supreme Court has described the felony-murder
rule thusly.

      When an actor engages in one of the statutorily enumerated
      felonies and a killing occurs, the law, via the felony-
      murder rule, allows the finder of fact to infer the killing was
      malicious from the fact that the actor engaged in a felony of
      such a dangerous nature to human life because the actor, as
      held to a standard of a reasonable man, knew or should have
      known that death might result from the felony.

Commonwealth v. Legg, 417 A.2d 1152, 1154 (Pa. 1980) (footnote
omitted).

                                                 -5-
J-A13043-20

Appellant’s post-sentence motion. Order, 3/20/2019. The parties complied.

On June 21, 2019, the trial court denied Appellant’s post-sentence motion by

order and opinion.

      This timely filed notice of appeal followed.7        On appeal, Appellant

raises the following issues.

      [1] Whether the trial court erred in denying [Appellant’s] motion
      regarding an eyewitness being unavailable?

      [2] Whether the evidence presented at trial was insufficient to
      support the verdict and whether the verdict was against the
      weight of the evidence?

      [3] Whether the trial court erred in imposing a consecutive
      sentence for robbery?

      [4] Whether        the     felony[-]murder   conviction   should   be
      overturned?

Appellant’s Brief at 9 (suggested answers and unnecessary capitalization

omitted; reordered for ease of disposition).

                       Admission of Videotaped Statement

      We begin with Appellant’s argument that the trial court erred in

precluding the admission of the videotaped police interview of Victim’s

daughter.    Appellant’s Brief at 27.8    Specifically, Appellant avers that she



7 Appellant and the trial court complied with Pa.R.A.P. 1925. In lieu of a
Rule 1925(a) opinion, the trial court referred us to its June 21, 2019 opinion
and order denying Appellant’s post-sentence motion. Order, 8/14/2019.
8We note that Appellant also argues that the trial court erred in denying his
motion to require the attendance of Victim’s daughter at trial because she
was a material witness and the Commonwealth failed to disclose her change
(Footnote Continued Next Page)

                                        -6-
J-A13043-20

was unavailable for purposes of the rule against hearsay, and her

statements during the interview were admissible under either the excited-

utterance or present-sense-impression exceptions. Appellant’s Brief at 29-

30.

      We begin with our standard of review.

      An appellate court’s standard of review of a trial court’s
      evidentiary rulings[,] which include rulings on the admission of
      hearsay[,] is abuse of discretion. However, whether a defendant
      has been denied his right to confront a witness under the
      Confrontation Clause of the Sixth Amendment to the United
      States Constitution, made applicable to the States via the
      Fourteenth Amendment, is a question of law, for which our
(Footnote Continued)   _______________________

of address. See Appellant’s Brief at 27, 29. Additionally, Appellant alleges
that the interview was nontestimonial. Id. at 30-31. However, our review
of the record, including Appellant’s occasional pinpoint citations to the
reproduced record, reveals the record is devoid of any such motion, asserted
discovery violation, or claim that the interview was admissible because it
was nontestimonial. Accordingly, Appellant failed to preserve these issues
for appeal. See Pa.R.A.P. 302; Commonwealth v. Baker, 963 A.2d 495,
502 (Pa. Super. 2008) (finding issue waived where Baker failed to point to
the location in the record where the claim was preserved, and noting that
“the transcripts in this case are voluminous, and it is not the responsibility of
this Court to scour the record to prove that an appellant has raised an issue
before the trial court, thereby preserving it for appellate review”).

      Moreover, as to Appellant’s nontestimonial argument, Appellant
invokes Davis v. Washington, 547 U.S. 813 (2006), which distinguished
testimonial and nontestimonial hearsay for purposes of violations of the
Confrontation Clause, confirming that the protections of the Confrontation
Clause attach only to testimonial hearsay statements. However, Appellant
did not seek to exclude the video as violating his Confrontation Clause
rights; he sought to admit the video. To the extent he argues that a
hearsay statement being nontestimonial is independent grounds for
admissibility, it is not, and he does not provide any authority other than
Davis, which does not support such an assertion, or any argument. Thus,
he has failed to develop this issue in any meaningful way, and we also find
waiver on this basis.

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J-A13043-20


     standard of review is de novo and our scope of review is
     plenary.

In re N.C., 105 A.3d 1199, 1210 (Pa. 2014) (citations omitted).

     “Hearsay is an out-of-court statement offered for the truth of the

matter asserted. Hearsay generally is inadmissible unless it falls within one

of the exceptions to the hearsay rule delineated in the Pennsylvania Rules of

Evidence.”    Commonwealth v. Sandusky, 203 A.3d 1033, 1054 (Pa.

Super. 2019) (citation and quotation marks omitted).       At trial, Appellant

argued Victim’s daughter was unavailable and sought to introduce the

statement under the present sense impression or excited utterance

exception.

     (a) Criteria for Being Unavailable. A declarant is considered
     to be unavailable as a witness if the declarant:

             (1) is exempted from testifying about the subject matter of
             the declarant’s statement because the court rules that a
             privilege applies;

             (2) refuses to testify about the subject matter despite a
             court order to do so;

             (3) testifies to not remembering the subject matter, except
             as provided in Rule 803.1(4);

             (4) cannot be present or testify at the trial or hearing
             because of death or a then-existing infirmity, physical
             illness, or mental illness; or

             (5) is absent from the trial or hearing and the statement’s
             proponent has not been able, by process or other
             reasonable means, to procure:

                  (A) the declarant’s attendance, in the case of a
                  hearsay exception under Rule 804(b)(1) or (6); or

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J-A13043-20



                   (B) the declarant’s attendance or testimony, in the
                   case of a hearsay exception under Rule 804(b)(2),
                   (3), or (4).

Pa.R.E. 804(a). If a witness is unavailable pursuant to subsection (a), the

following types of statements will not be subject to exclusion by the rule

against hearsay.

      (1) Former Testimony…

      (2) Statement Under Belief of Imminent Death…

      (3) Statement Against Interest…

      (4) Statement of Personal or Family History…

      (5) Other exceptions (Not Adopted) …

      (6) Statement Offered Against a Party That Wrongfully Caused
      the Declarant’s Unavailability…

Pa.R.E. 804(b).

      At the outset, even if we were to conclude that the trial court should

have found Victim’s daughter was unavailable, Appellant would not be

entitled to relief pursuant to Rule 804.     Although he claimed she was

unavailable and a material witness, Appellant did not invoke any of the

subsection (b) exceptions. This is unsurprising, as it is evident that none of

them is applicable. See id; see also Trial Court Opinion, 6/21/2019, at 15

(noting that Appellant “fails to assert which unavailable exception applies”

and that “[a]s the Commonwealth aptly explains[,] this rule appears to be

completely inapplicable”).     Accordingly, we need not address the trial


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J-A13043-20

court’s finding of unavailability, and instead turn to Appellant’s argument

that the statement was admissible under the present-sense-impression or

excited-utterance exceptions, mindful of the following.

      The following are not excluded by the rule against hearsay,
      regardless of whether the declarant is available as a witness:

            (1) Present Sense Impression. A statement describing
            or explaining an event or condition, made while or
            immediately after the declarant perceived it. When the
            declarant is unidentified, the proponent shall show by
            independent corroborating evidence that the declarant
            actually perceived the event or condition.

                  Comment: …

                  For this exception to apply, declarant need not be
                  excited or otherwise emotionally affected by the
                  event or condition perceived. The trustworthiness of
                  the statement arises from its timing. The
                  requirement of contemporaneousness, or near
                  contemporaneousness, reduces the chance of
                  premeditated prevarication or loss of memory.

            (2) Excited Utterance. A statement relating to a startling
            event or condition, made while the declarant was under
            the stress of excitement that it caused. When the declarant
            is unidentified, the proponent shall show by independent
            corroborating evidence that the declarant actually
            perceived the startling event or condition.

                  Comment: …

                  This exception has a more narrow base than the
                  exception for a present sense impression, because it
                  requires an event or condition that is startling.
                  However, it is broader in scope because an excited
                  utterance (1) need not describe or explain the
                  startling event or condition; it need only relate to it,
                  and (2) need not be made contemporaneously with,
                  or immediately after, the startling event. It is
                  sufficient if the stress of excitement created by the

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J-A13043-20


                  startling event or condition persists as a substantial
                  factor in provoking the utterance.

                  There is no set time interval following a startling
                  event or condition after which an utterance relating
                  to it will be ineligible for exception to the hearsay
                  rule as an excited utterance. In Commonwealth v.
                  Gore, 396 A.2d 1302, 1305 (Pa. Super. 1978), the
                  court explained:

                        The declaration need not be strictly
                        contemporaneous with the existing
                        cause, nor is there a definite and fixed
                        time limit ... Rather, each case must be
                        judged on its own facts, and a lapse of
                        time of several hours has not negated
                        the characterization of a statement as an
                        “excited utterance.” ... The crucial
                        question, regardless of the time lapse, is
                        whether, at the time the statement is
                        made, the nervous excitement continues
                        to   dominate     while    the  reflective
                        processes remain in abeyance.

Pa.R.E. 803 (emphasis in original).

      As noted supra, Victim’s daughter was interviewed by police a few

hours after the shooting. Accordingly, the trial court concluded in its opinion

denying Appellant’s post-sentence motion that “the videotaped statement

was not a present sense impression” because it “was not made by [Victim’s

daughter] ‘while or immediately after’ she perceived the murder of her

father.”   Trial Court Opinion, 6/21/2019, at 13.    We agree with the trial

court, and conclude that it did not abuse its discretion in denying admission

of the statement on this basis.




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J-A13043-20

      The trial court also concluded that the statement was not an excited

utterance.

      [Victim’s daughter] had the opportunity to reflect on the events
      for several hours and was open to outside influences before
      ultimately being interviewed at the police station. Furthermore,
      an entire videotaped recording of a police interview is entirely
      responsive rather than spontaneous. See [Commonwealth v.
      Boczkowski, 846 A.2d 75, 96 (Pa. 2004)] (five-year-old child’s
      unsolicited statement to neighbors that he heard his mother
      screaming in the bathroom was excited utterance).

Trial Court Opinion, 6/21/2019, at 14.

      It is beyond peradventure that witnessing one’s father being shot to

death by intruders is a startling event, and likely more so for a child.

However, as the trial court noted and the record confirms, Victim’s daughter

spoke with multiple individuals after the shooting, including Victim’s

girlfriend, who found Victim, and police officers. The proffered videotaped

statements were taken hours after the startling event, in a different location

(the police station), and were given in response to police questioning.9

Contrary to the requirement that “the nervous excitement continues to

dominate while the reflective processes remain in abeyance[,]” Pa.R.E.

803(2) Comment, Appellant’s counsel argued at trial that Victim’s daughter




9 While the statement does not qualify in this case, statements made in
response to police questions are not per se disqualified from the excited
utterance exception. Commonwealth v. Sanford, 580 A.2d 784, 789 (Pa.
Super. 1990), abrogated on separate grounds, Crawford v. Washington,
541 U.S. 36 (2004).

                                    - 12 -
J-A13043-20

was “incredibly composed” and “responsive” during the interview.            N.T.,

2/28/2019, at 103.

      Upon consideration of the foregoing, we cannot conclude that the trial

court abused its discretion in concluding the interview did not qualify as an

excited utterance. Accordingly, Appellant is not entitled to relief.

                     Sufficiency and Weight of the Evidence

      Appellant next argues “that the evidence at trial was insufficient to

sustain the verdicts and that the verdicts rendered were against the weight

of evidence.” Appellant’s Brief at 31.

      Preliminarily, we remind Appellant that sufficiency and weight claims

are distinct.

      The distinction between these two challenges is critical. A claim
      challenging the sufficiency of the evidence, if granted, would
      preclude retrial under the double jeopardy provisions of the Fifth
      Amendment to the United States Constitution, and Article I,
      Section 10 of the Pennsylvania Constitution, whereas a claim
      challenging the weight of the evidence if granted would permit a
      second trial.

      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.

      A motion for new trial on the grounds that the verdict is contrary
      to the weight of the evidence[] concedes that there is sufficient

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J-A13043-20


     evidence to sustain the verdict. Thus, the trial court is under no
     obligation to view the evidence in the light most favorable to the
     verdict winner. An allegation that the verdict is against the
     weight of the evidence is addressed to the discretion of the trial
     court. A new trial should not be granted because of a mere
     conflict in the testimony or because the judge on the same facts
     would have arrived at a different conclusion. A trial judge must
     do more than reassess the credibility of the witnesses and allege
     that he would not have assented to the verdict if he were a
     juror. Trial judges, in reviewing a claim that the verdict is
     against the weight of the evidence do not sit as the thirteenth
     juror. Rather, the role of the trial judge is to determine that
     notwithstanding all the facts, certain facts are so clearly of
     greater weight that to ignore them or to give them equal weight
     with all the facts is to deny justice.

Commonwealth v. Widmer, 744 A.2d 745, 751-52 (Pa. 2000) (footnote,

quotation marks, and some citations omitted).

     Before we address the merits of Appellant’s sufficiency and weight

claims, we must determine whether Appellant has preserved them for our

review. See Commonwealth v. Richard, 150 A.3d 504, 517 (Pa. Super.

2016).   Instantly, the trial court found these claims waived because

Appellant raised them in boilerplate fashion in his post-sentence motion, and

failed to state, with regard to his sufficiency of the evidence claim, which

element or elements the Commonwealth failed to prove beyond a reasonable

doubt. Trial Court Opinion, 6/21/2019, at 7.10




10We note that the trial court did not address the adequacy or inadequacy of
Appellant’s Rule 1925(b) statement because it did not file a Rule 1925(a)
opinion, instead referring us to its June 21, 2019 opinion disposing of the
post-sentence motion.


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J-A13043-20

     In his supporting brief, Appellant did not specify which elements were

not proven, instead arguing “that the evidence presented was insufficient to

prove him guilty of felony murder, robbery or conspiracy to commit

robbery,” because the co-defendants’ testimonies were inconsistent11 and

there was no DNA or fingerprint evidence linking Appellant to the homicide.

Post-Sentence Motion Brief in Support, 5/30/2019, at 6-7. He also assailed

the second-degree murder statute’s inferred malice, which is discussed at

length infra. As to his weight claim, Appellant set forth boilerplate weight-

of-the-evidence case law, and summarily concluded “that the verdict was

against the weight of the evidence for the reasons cited above.” Id. at 7. It

is unclear whether Appellant sought to reference the generic weight-of-the-

evidence case law, the arguments he presented in support of his sufficiency-

of-the-evidence claim, or something else. Finally, in his Pa.R.A.P. 1925(b)

statement, Appellant again raised a combined boilerplate sufficiency and

weight claim: “Motion for a new trial on the grounds that the evidence

presented by the Commonwealth was insufficient to support the verdict




11 This type of argument is actually a challenge to the weight of the
evidence. See Commonwealth v. Wilson, 825 A.2d 710, 713-14 (Pa.
Super. 2003) (citations omitted) (“A sufficiency[-]of[-]the[-]evidence
review, however, does not include an assessment of the credibility of the
testimony offered by the Commonwealth. Such a claim is more properly
characterized as a weight of the evidence challenge. Therefore, we find
[Wilson] has blurred the concepts of weight and sufficiency of the
evidence.”).

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J-A13043-20

against the weight of the evidence as there was no intent to kill.”            Rule

1925(b) Statement (verbatim), 8/13/2019, at ¶ 1.

     Regarding Appellant’s sufficiency of the evidence claim,

     [w]e have repeatedly held that [i]n order to preserve a challenge
     to the sufficiency of the evidence on appeal, an appellant’s
     [Rule] 1925(b) statement must state with specificity the element
     or elements upon which the appellant alleges that the evidence
     was insufficient. … Therefore, when an appellant’s 1925(b)
     statement fails to specify the element or elements upon which
     the evidence was insufficient[,] ... the sufficiency issue is waived
     on appeal.

Commonwealth v. Ellison, 213 A.3d 312, 320-21 (Pa. Super. 2019)

(citations and quotation marks omitted).         “Such specificity is of particular

importance in cases where[] the appellant was convicted of multiple

crimes[,]   each     of     which   contains    numerous    elements    that    the

Commonwealth must prove beyond a reasonable doubt.” Commonwealth

v. Brown, 186 A.3d 985, 990 (Pa. Super. 2018) (citation and quotation

marks omitted).

     Instantly, Appellant was convicted of second-degree murder, robbery,

burglary, and three counts of conspiracy.         Each of these crimes involves

multiple elements.        Appellant’s confusing Rule 1925(b) statement may be

construed, generously, to read as though Appellant is stating that the

Commonwealth failed to prove the element of “intent to kill” beyond a

reasonable doubt.     However, none of Appellant’s convictions contains such

an element.   Accordingly, he has waived any sufficiency claim on appeal.

See Commonwealth v. Hoffman, 198 A.3d 1112, 1125 (Pa. Super. 2018)

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J-A13043-20

(finding sufficiency claim waived for failing to specify the element(s) upon

which the evidence was lacking); Commonwealth v. Tyack, 128 A.3d 254,

260 (Pa. Super. 2015) (finding sufficiency claim waived because boilerplate

Pa.R.A.P.   1925(b)   statement     failed    to   specify   the   element(s)   the

Commonwealth failed to prove).

     Regarding Appellant’s weight of the evidence claim,

     [a] weight of the evidence claim must be preserved either in a
     post-sentence motion, by a written motion before sentencing, or
     orally prior to sentencing. Pa.R.Crim.P. 607; Commonwealth v.
     Priest, 18 A.3d 1235, 1239 (Pa. Super. 2011). Failure to
     properly preserve the claim will result in waiver, even if the trial
     court addresses the issue in its opinion. Commonwealth v.
     Sherwood[], 982 A.2d 483, 494 (Pa. 2009).

Commonwealth v. Thompson, 93 A.3d 478, 490 (Pa. Super. 2014)

(quoting Commonwealth v. Lofton, 57 A.3d 1270, 1273 (Pa. Super.

2012)).

     A boiler[]plate motion, either that “the evidence was insufficient
     to support the verdict,” or that “the verdict was against the
     weight of the evidence,” is not a “precise statement of issues
     and grounds relied upon.” Such assignments of error not only do
     not “foster” but discourage “alert and zealous advocacy,” for
     anyone may make them without giving thought to what the
     issues really are.

Commonwealth v. Holmes, 461 A.2d 1268, 1273 (Pa. Super. 1983) (en

banc). Thus, this Court held that

     a post-verdict motion, either that “the evidence was insufficient
     to support the verdict,” or that “the verdict was against the
     weight of the evidence,” will preserve no issue for appellate
     review unless the motion goes on to specify in what respect
     the evidence was insufficient, or why the verdict was against the
     weight of the evidence.

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J-A13043-20



Id. at 1270 (emphasis in original).

      On appeal, Appellant combines his sufficiency and weight challenges

into a single argument section. After setting forth boilerplate weight-of-the-

evidence law, Appellant presents the following argument.

            Specifically, the jury’s verdict is against the weight of the
      evidence, shocks one’s sense of justice, and is an abuse of
      discretion because the jury ignored direct evidence from []
      Eanes that he shot and killed [Victim]. [Appellant] admitted his
      role was his mere presence at the crime scene.

            [Appellant] asserts that the testimony of Navarro and
      Vargas were perjured, false and riddled with inconsistencies.
      [Appellant] asserts that the verdict was against the weight of the
      evidence for the reasons cited above, and more particularly with
      the absence of any physical evidence linking the defendant to
      the crime or the crime scene and the jury’s reliance on
      inconsistent testimony.

Appellant’s Brief at 36-37.

      Thus, Appellant raised only a boilerplate weight claim in his post-

sentence motion.     In his supporting brief, he included boilerplate case law

and concluded, without analysis or argument, “that the verdict was against

the weight of the evidence for the reasons cited above.” Post-Sentence

Motion Brief in Support, 5/30/2019, at 7.      Based thereon, the trial court

concluded that Appellant waived his weight argument. Trial Court Opinion,

6/21/2019, at 7-8.       We agree with the trial court.     However, even if

Appellant had preserved his weight-of-the-evidence claim, he still would not

be entitled to relief.



                                      - 18 -
J-A13043-20


      When a trial court considers a motion for a new trial based upon
      a weight of the evidence claim, the trial court may award relief
      only when the jury’s verdict is so contrary to the evidence as to
      shock one’s sense of justice and the award of a new trial is
      imperative so that right may be given another opportunity to
      prevail. The inquiry is not the same for an appellate court.
      Rather, when an appellate court reviews a weight claim, the
      court is reviewing the exercise of discretion by the trial court,
      not the underlying question of whether the verdict was against
      the weight of the evidence. The appellate court reviews a weight
      claim using an abuse of discretion standard.

Commonwealth v. Jacoby, 170 A.3d 1065, 1080 (Pa. 2017) (citations and

quotation marks omitted).

      When the challenge to the weight of the evidence is predicated
      on the credibility of trial testimony, our review of the trial court’s
      decision is extremely limited. Generally, unless the evidence is
      so unreliable and/or contradictory as to make any verdict based
      thereon pure conjecture, these types of claims are not
      cognizable on appellate review.

Commonwealth v. Gibbs, 981 A.2d 274, 282 (Pa. Super. 2009) (citations

omitted).

      In its alternative analysis of the merits, the trial court concluded as

follows.

            The evidence in this case was presented to the jury over
      the course of a four-day jury trial. The jury heard testimony
      from numerous witnesses, including the co-conspirators, and
      had an opportunity to fairly assess their credibility. [Appellant]
      assailed the credibility and motivations of the co-conspirators.
      The Commonwealth presented both direct and circumstantial
      evidence of [Appellant’s] participation in this botched robbery
      that resulted in the unfortunate death of [Victim]. Whether
      [Appellant] was truly the gunman is irrelevant for the verdict of
      murder of the second degree. The verdict is supported by the
      evidence and in no way shocks this [c]ourt’s sense of justice.

Trial Court Opinion, 6/21/2019, at 11.

                                     - 19 -
J-A13043-20

      Upon review, even if Appellant’s weight claim were not waived, we

discern no abuse of discretion on the part of the trial court.   Accordingly,

Appellant is not entitled to relief on this claim.

                       Discretionary Aspects of Sentence

      We next address Appellant’s claim that the trial court abused its

discretion in imposing a consecutive sentence for conspiracy to commit

robbery. Appellant’s Brief at 37. We consider this mindful of the following.

      Sentencing is a matter vested in the sound discretion of the
      sentencing judge, and a sentence will not be disturbed on appeal
      absent a manifest abuse of discretion. In this context, an abuse
      of discretion is not shown merely by an error in judgment.
      Rather, the appellant must establish, by reference to the record,
      that the sentencing court ignored or misapplied the law,
      exercised its judgment for reasons of partiality, prejudice, bias
      or ill will, or arrived at a manifestly unreasonable decision.

                                       ***

      When imposing [a] sentence, a court is required to consider the
      particular circumstances of the offense and the character of the
      defendant. In considering these factors, the court should refer
      to the defendant’s prior criminal record, age, personal
      characteristics and potential for rehabilitation.

Commonwealth v. Antidormi, 84 A.3d 736, 760-61 (Pa. Super. 2014)

(internal citations and quotation marks omitted).

      An appellant is not entitled to the review of challenges to the
      discretionary aspects of a sentence as of right. Rather, an
      appellant challenging the discretionary aspects of his sentence
      must invoke this Court’s jurisdiction. We determine whether the
      appellant has invoked our jurisdiction by considering the
      following four factors:

            (1) whether appellant has filed a timely notice of
            appeal, see Pa.R.A.P. 902 and 903; (2) whether the

                                      - 20 -
J-A13043-20


            issue was properly preserved at sentencing or in a
            motion to reconsider and modify sentence, see
            Pa.R.Crim.P. 720; (3) whether appellant’s brief has a
            fatal defect, Pa.R.A.P. 2119(f); and (4) whether
            there is a substantial question that the sentence
            appealed from is not appropriate under the
            Sentencing Code, 42 Pa.C.S.[] § 9781(b).

Commonwealth v. Samuel, 102 A.3d 1001, 1006-07 (Pa. Super. 2014)

(some citations omitted).

      Appellant satisfied the first two requirements: he timely filed a notice

of appeal and included a Pa.R.A.P. 2119(f) statement in his brief. However,

while he filed a post-sentence motion raising a discretionary-aspects-of-

sentencing claim, that claim differs from the claim he presents on appeal.

Specifically, in his post-sentence motion, Appellant averred that the

consecutive sentence for conspiracy to commit robbery was excessive and

unreasonable because the trial court failed to consider the sentencing

guidelines and failed to consider adequately mitigating factors regarding

Appellant’s intellectual abilities.   Post-Sentence Motion, 3/6/2019; Post-

Sentence Motion Brief in Support, 5/30/2019, at 16-17.        In contrast, on

appeal, Appellant claims the trial court abused its discretion in sentencing

Appellant consecutively on conspiracy to commit robbery because the court

expressed bias against Appellant for rejecting a plea offer.     Additionally,

Appellant avers that the consecutive sentence “was disproportionate to

[Appellant’s] crimes” and “unduly excessive in relation to the nature of the

crime[,]” and that the court failed to consider the “fact that [Victim] was in


                                      - 21 -
J-A13043-20

possession of illegal drugs and a firearm as mitigat[ing] factors.” Appellant’s

Brief at 38-40.

      Based on the foregoing, we conclude that Appellant failed to raise his

specific appellate claims in his post-sentence motion, and therefore has

failed to preserve his discretionary sentencing claims. See Commonwealth

v. Lamonda, 52 A.3d 365, 371 (Pa. Super. 2012) (“Issues challenging the

discretionary aspects of a sentence must be raised in a post-sentence

motion or by presenting the claim to the trial court during the sentencing

proceedings. Absent such efforts, an objection to a discretionary aspect of a

sentence is waived.”) (citations and quotation marks omitted); see also

Commonwealth v. Rush, 959 A.2d 945, 949 (Pa. Super. 2008) (“[F]or any

claim that was required to be preserved, this Court cannot review a legal

theory in support of that claim unless that particular legal theory was

presented to the trial court.”).

                  Constitutionality of Second-Degree Murder

      We next address Appellant’s claim that his second-degree murder

conviction   contravenes    “the   14th   Amendment   due   process   and   8th

Amendment proportionality standards” because Pennsylvania’s “second-

degree murder statute permits the use of transferred intent from a felony to

provide the necessary mens rea for murder.” Appellant’s Brief at 16.

      As a threshold matter, a statute is presumed to be constitutional
      and will only be invalidated as unconstitutional if it clearly,
      palpably, and plainly violates constitutional rights. Analysis of
      the constitutionality of a statute is a question of law; therefore,

                                      - 22 -
J-A13043-20


     our standard of review is de novo, and our scope of review is
     plenary.

Commonwealth v. Brensinger, 218 A.3d 440, 456 (Pa. Super. 2019) (en

banc) (citations and internal quotation marks omitted).

     A claim of cruel and unusual punishment challenges the legality of a

sentence.   Commonwealth v. Middleton, 467 A.2d 841, 846 n.5 (Pa.

Super. 1983).

     We review the legality of a sentence [under a] de novo standard.
     Our scope of review is plenary.

     [D]uly enacted legislation carries with it a strong presumption of
     constitutionality. We will not find a statute violative of the
     Eight[h] Amendment’s prohibition on cruel and unusual
     punishment unless it calls for a sentence so greatly
     disproportionate to an offense as to offend evolving standards of
     decency or a balanced sense of justice.

Commonwealth v. Smith, 210 A.3d 1050, 1062 (Pa. Super. 2019)

(citations and quotation marks omitted).

     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. 18 Pa.C.S.[] § 2502(b). 18
     Pa.C.S.[] § 2502(d) defines perpetration of a felony as:

            [t]he act of the defendant in engaging in or being an
            accomplice in the commission of, or an attempt to
            commit, or flight after committing, or attempting to
            commit robbery, rape, or deviate sexual intercourse
            by force or threat of force, arson, burglary or
            kidnapping.

     18 Pa.C.S.[] § 2502(d) (emphasis added). The malice or intent
     to commit the underlying crime is imputed to the killing to make
     it second-degree murder, regardless of whether the defendant
     actually intended to physically harm the victim.


                                   - 23 -
J-A13043-20


     The elements of accomplice liability for felony murder were
     addressed in [Middleton, 467 A.2d at 848]:

           In Commonwealth v. Waters, [] 418 A.2d 312,
           317 ([Pa.] 1980), the court discussed the elements
           to be proved in order to establish accomplice liability
           for felony murder, saying that:

                 ... [t]he responsibility of persons, other
                 than the slayer, for a homicide
                 committed in the perpetration of a felony
                 require[s] proof of a conspiratorial design
                 by the slayer and the others to commit
                 the underlying felony and of an act by
                 the slayer causing death which was in
                 furtherance of the felony.

     Moreover, it was stated by the court in [Legg, 417 A.2d at
     1154]:

           When an actor engages in one of the statutorily
           enumerated felonies and a killing occurs, the law, via
           the felony-murder rule, allows the finder of fact to
           infer the killing was malicious from the fact the actor
           was engaged in a felony of such a dangerous nature
           to human life because the actor, as held to the
           standard of a reasonable man, knew or should have
           known that death might result from the felony.[]

     In Commonwealth v. Melton, [] 178 A.2d 728, 731 ([Pa.]
     1962), [] our Supreme Court explained that not only the killer,
     but all participants in a felony, including the getaway driver, are
     equally guilty of felony murder when a killing by a felon occurs.

     The statute defining second[-]degree murder does not require
     that a homicide be foreseeable; rather, it is only necessary that
     the accused engaged in conduct as a principal or an accomplice
     in the perpetration of a felony. Whether evidence sufficiently
     indicates that a killing was in furtherance of a predicate felony
     can be a difficult question. The question of whether the killing
     was in furtherance of the conspiracy is a question of proof for
     the jury to resolve. Middleton, 467 A.2d at 848[]. It does not
     matter whether the appellant anticipated that the victim would
     be killed in furtherance of the conspiracy. Rather, the fact finder

                                   - 24 -
J-A13043-20


      determines whether the appellant knew or should have known
      that the possibility of death accompanied a dangerous
      undertaking.

Commonwealth v. Lambert, 795 A.2d 1010, 1022-23 (Pa. Super. 2002)

(en banc) (some citations omitted).

      The malice required for felony-murder is not a specific intent to
      kill. It is only the wanton disregard for the fact that death might
      result which is inherent in the commission of a dangerous
      felony. The felony-murder rule thus holds one responsible for
      the consequences resulting from the malice which accompanies
      the perpetration of the initial felony.

Commonwealth v. Olds, 469 A.2d 1072, 1076-77 (Pa. Super. 1983)

(citations omitted).

      In his post-sentence motion, Appellant averred that application of the

felony-murder    rule   violates    the    Pennsylvania   and      United     States

constitutions, and constitutes cruel and unusual punishment. Post-Sentence

Motion, 3/6/2019, at 2. According to Appellant, he has been subjected to

“the sting of a murder conviction under an arcane and irrational law which

does not require proof of intent or malice to be convicted of second[-]degree

murder and to be sentenced to life in prison without parole.” Post-Sentence

Motion Brief in Support, 5/30/2019, at 9. In essence, Appellant challenges

the propriety of “the second-degree murder statute [permitting] the use of

transferred intent from a felony” to create what he contends is an

irrebuttable   presumption   of    “the   necessary   mens   rea    for     murder.”

Appellant’s Brief at 16. Given this presumption, Appellant argues that the



                                      - 25 -
J-A13043-20

felony-murder rule overrides the presumption of innocence and invades the

jury’s fact-finding role. Id. at 19-20. Specifically, he contends the

      jury was not required to make an affirmative finding of
      [Appellant’s] culpability. Instead, the jury was allowed only to
      deliberate on whether a killing occurred during the commission
      of a felony. Upon its finding of that fact, the rule requires the
      jury to find automatically that [Appellant] had a culpable
      homicidal state of mind.

Id. at 20.

      Finally, Appellant argues that punishment for second-degree murder

constitutes cruel and unusual punishment because under the felony-murder

rule, “no regard is given to the culpability or the mental state of a defendant

who causes the death of another person[,]” id. at 22, and thus the rule

“dictates a punishment that is without proportionality between the crime and

[has] little legitimate deterrent or retributive rationale.” Id. at 23 (citing,

inter alia, Enmund v. Florida, 458 U.S. 782 (1982) and Solem v. Helm,

463 U.S. 277 (1983)). Thus, Appellant argues that the felony-murder rule is

invalid, defective, and unconstitutional.12

      In denying Appellant’s post-sentence motion challenging the propriety

of the second-degree murder statute, the trial court concluded as follows.

      [Appellant] and his co-conspirators chose to arm themselves
      with a loaded firearm that was ultimately used in the course of
      their botched crime. The felony-murder rule anticipates the

12 We do not address the portions of Appellant’s argument that do not relate
to the constitutionality of second-degree murder, but instead attack the
sufficiency of the evidence. See Appellant’s Brief at 25-26. For reasons
discussed infra, Appellant has waived any sufficiency claim on appeal.

                                     - 26 -
J-A13043-20


     dangerousness that the conspirators created and holds each
     accomplice liable for the actions of their poorly chosen cohorts.
     In doing so, the law seeks to add a greater deterrent to
     engaging in particularly dangerous felonies. See Legg[]. Thus,
     the verdict of murder of the second degree does not clearly,
     palpably, and plainly violate the constitution. [Appellant] fails to
     overcome his high burden.

Trial Court Opinion, 6/21/2019, at 7.

     This   Court   addressed   nearly   identical   claims   to   Appellant’s   in

Middleton: “(1) [whether] the imposition of a sentence of life imprisonment

on an accomplice to a felony-murder violates the Eighth Amendment

prohibition against cruel and unusual punishment; and (2) [whether] the

Commonwealth’s ability to establish the requisite state of mind by

implication violates due process of law.”    467 A.2d at 843.       Although we

concluded that Middleton waived his due process argument by failing to

include it in his post-sentence motion, we noted that “[e]ven if we were to

decide this issue on its merits, past precedents would mandate a result

adverse to [Middleton].” Id. at 845 n.3 (noting that in Commonwealth v.

Cornish, 370 A.2d 291 (Pa. 1977); Commonwealth v. Yuknavich, 295

A.2d 290 (Pa. 1972); and Commonwealth ex rel. Smith v. Myers, 261

A.2d 550 (Pa. 1970),13 our Supreme Court “upheld the constitutional validity




13 In Smith, our Supreme Court casts some real doubt on the felony-murder
rule and “how shaky are the basic premises on which it rests.” 261 A.2d at
555. Despite the Court’s harsh criticism of the felony-murder rule in Smith,
that doubt has not been expanded since Smith was decided in 1970.

                                    - 27 -
J-A13043-20

of the felony-murder statute”).    The same precedents continue to apply

here, mandating a result adverse to Appellant.

      Regarding Middleton’s argument that the second-degree murder

statute constituted cruel and unusual punishment, we provided the following

analysis.

      [Middleton] argues that the mandatory life sentence required
      by 18 Pa.C.S.[] § 1102(b) is unconstitutional because it does not
      allow the sentencing judge to consider any mitigating factors
      which might alleviate the sentence; factors such as the
      defendant’s level of participation in the killing and his intent.
      [Middleton] seeks to buttress this argument by drawing an
      analogy to the recent decision of the United States Supreme
      Court in Enmund v. Florida[] and to the Sentencing Code, 42
      Pa.C.S.[] § 9701, et seq.; both of which require consideration of
      mitigating and aggravating factors prior to the imposition of the
      death penalty.

      [Middleton’s] argument was specifically addressed, and rejected,
      in [] Cornish, [] 370 A.2d at 293, in which the court stated: “It
      can hardly be said that the circumstances wherein a murder is
      committed during the commission of a felony vary to such an
      extent that the legislative determination to mandate one penalty
      is unreasonable.”

      Furthermore, the selection of the penalty of life imprisonment,
      being a legislative determination, carries a strong presumption
      of validity, and of constitutionality. …

      [Middleton’s] argument does not meet this heavy burden. Both
      the analogy to Enmund, and the analogy to the Sentencing
      Code [] suffer from the same defect. Both are concerned with
      the constitutional limitations on the imposition of the death
      penalty. [Middleton] would have us overlook the inherent quality
      of the death penalty which distinguishes it from all other forms
      of punishment. …

                                    ***



                                   - 28 -
J-A13043-20


       As a result [] decisions in capital cases are of limited assistance
       in deciding the constitutionality of the punishment in a
       noncapital case.

                                           ***

       The offense of felony-murder is undoubtedly one of the gravest
       and most serious [offenses] which can be committed. The taking
       of a life during the commission of an enumerated felony
       demonstrates a disregard for the property, safety, sanctity,
       integrity, and especially, the life of the victim. It is a crime of
       archviolence. Clearly, such an offense merits a severe penalty.

Middleton, 467 A.2d at 846-47 (footnote and some internal quotation

marks and citations omitted). We applied the Solem factors to determine

whether the sentence was unconstitutionally disproportionate, ultimately

concluding that it “does not derogate from the propriety of a sentence of life

imprisonment for the offense of second[-]degree murder.” Middleton, 467

A.2d at 847.

       Instantly, Appellant has not met his burden and has “give[n] us no

reason to revisit this precedent[.]” Commonwealth v. Henkel, 938 A.2d

433,   447   (Pa.   Super.   2007)    (rejecting    identical    claim   based    upon

Middleton). In light of the above, Appellant’s arguments do not establish

that   the   felony-murder    rule   “clearly,   palpably,      and   plainly   violates

constitutional rights.” Brensinger, 218 A.3d at 456. Accordingly, Appellant

is not entitled to relief on this claim.

                                 Illegal Sentence

       Finally, we address sua sponte the legality of Appellant’s sentences for

multiple conspiracy counts.       See Commonwealth v. Barnes, 871 A.2d

                                       - 29 -
J-A13043-20

812, 821 n.6 (Pa. Super. 2005) (“Challenges to an illegal sentence can never

be waived and may be reviewed sua sponte by this Court.”) (citation and

quotation marks omitted).

     “If 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(c). Thus, for Appellant “to be convicted of three counts of conspiracy,

there must be separate agreements, or separate conspiratorial relationships,

to support each conviction.” Barnes, 871 A.2d at 820.

     In determining whether a single or multiple conspiracy has been
     established, we consider several relevant factors.

            The factors most commonly considered in a totality
            of the circumstances analysis of the single
            vs. multiple conspiracies issue ... are: the number of
            overt acts in common; the overlap of personnel; the
            time period during which the alleged acts took place;
            the similarity in methods of operation; the locations
            in which the alleged acts took place; the extent to
            which the purported conspiracies share a common
            objective; and, the degree to which interdependence
            is needed for the overall operation to succeed.

Commonwealth v. Davis, 704 A.2d 650, 654 (Pa. Super. 1997) (citation

omitted).

     In Davis, this Court concluded that the crimes committed by Davis

and his co-conspirators, specifically robbery and third-degree murder, were

the result of a “continuous conspiratorial relationship.”   704 A.2d at 654

(quoting 18 Pa.C.S. § 903(c)).


                                    - 30 -
J-A13043-20


      [t]he same acts were done to accomplish both results, the same
      actors took part, the acts occurred simultaneously at the same
      location, the same method was employed and the same
      objective was pursued. We find that these facts constitute the
      very circumstances envisioned by [subsection] 903(c). The
      essential feature of the existing conspiracy was a common plan
      or scheme to achieve a common, single, comprehensive goal.

      We conclude therefore that [Davis] cannot be punished
      separately for each conspiracy; multiple sentences under these
      circumstances are explicitly precluded by statute. 18 Pa.C.S.[]
      § 903(c).

704 A.2d at 654-55 (footnote, quotation marks, and some citations

omitted).

      Similarly, in Barnes, the defendant was convicted of multiple

conspiracies: delivery of a controlled substance, robbery, and third-degree

murder. Upon review of the above factors, this Court concluded that only

one conspiratorial agreement existed, and therefore Barnes could “be

convicted only of conspiracy to deliver cocaine, that crime being the

underlying foundation of the agreement upon which the conspiracy charges

were based.” 871 A.2d at 821. Based thereon, we vacated Barnes’s other

two conspiracy convictions.

      Applying the above factors to the instant case, we conclude that the

conduct of Appellant and his co-defendants did not result from three

separate conspiracies. Instead, their conduct was the result of a “continuous

conspiratorial relationship.”   18 Pa.C.S. § 903(c).   The agreement among

Appellant and his co-defendants to rob Victim at gunpoint encompassed their

plan to break into Victim’s home (burglary) and take his money and drugs at

                                     - 31 -
J-A13043-20

gunpoint (robbery).    The homicide (second-degree murder) that occurred

during the robbery was in furtherance of the single conspiratorial goal: to

rob Victim. As such, under subsection 903(c), Appellant only could be found

guilty of conspiracy to commit robbery, “that crime being the underlying

foundation of the agreement upon which the conspiracy charges were

based.”    Barnes, 871 A.2d at 821.          Accordingly, we vacate Appellant’s

conspiracy to commit burglary and conspiracy to commit second-degree

murder convictions.     Id. at 821 n.6.          However, because the trial court

imposed concurrent sentences for these convictions, we have not upset the

overall   sentencing   scheme     and    need     not   remand   for   resentencing.

Commonwealth v. Thur, 906 A.2d 552, 569-70 (Pa. Super. 2006).

      Convictions and sentences for conspiracy to commit burglary and

conspiracy to commit second-degree murder vacated. Judgment of sentence

affirmed in all other respects.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/25/20




                                        - 32 -
