J-S77024-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                          IN THE SUPERIOR COURT OF
                                                             PENNSYLVANIA
                            Appellee

                       v.

SHANTE BRUCE RICE,

                            Appellant                       No. 48 MDA 2016


          Appeal from the Judgment of Sentence December 16, 2014
            In the Court of Common Pleas of Cumberland County
             Criminal Division at No(s): CP-21-CR-0003481-2012


BEFORE: PANELLA, OLSON and PLATT,* JJ.

MEMORANDUM BY OLSON, J.:                                     FILED MAY 02, 2017

       Appellant, Shante Bruce Rice, appeals from the judgment of sentence

entered on December 16, 2014, following his jury trial convictions for

second-degree murder, criminal conspiracy to commit criminal homicide,

robbery, criminal conspiracy to commit robbery, burglary, and criminal

conspiracy to commit burglary.1                Upon review, we vacate Appellant’s

conviction and sentence for criminal conspiracy to commit criminal homicide

and affirm the judgment of sentence in all other respects.

       The trial court set forth the facts of this case as follows:

         On October 31, 2012, [Appellant] and [c]o-[d]efendant,
         Brandon Mathna (hereinafter “Mathna”) broke a window and
         entered 1 Shiloh Court in Mechanicsburg, Pennsylvania,
____________________________________________


1
   18 Pa.C.S.A. §§ 2502(b), 903/2501, 3701(a)(1)(i), 903/3701(a)(1),
3502(a), and 903/3502(a), respectively.



*Retired Senior Judge assigned to the Superior Court.
J-S77024-16


       wherein they took a number of items from the residence,
       including jewelry, pocket knives, jars full of coins, alcohol,
       and three pistols. Two of the pistols from the Shiloh Court
       property were sold, but [Appellant] maintained possession
       of the third firearm, a Smith & Wesson revolver. At some
       point after taking this firearm from the Shiloh Court
       property, but prior to the instant homicide, Mathna, in the
       presence of [Appellant], positively test fired the pistol in a
       field. Afterwards, [Appellant] again took possession of the
       firearm.

       At roughly 10:00 p.m. on the evening of November 18,
       2012, slightly less than three weeks after [Appellant] and
       Mathna had broken into the Shiloh Court property and taken
       the Smith & Wesson firearm, co-[d]efendant Christian
       Conway (hereinafter “Conway”) received a phone call from
       co-defendant [Tyler Mitchell] Bradshaw [(hereinafter
       “Bradshaw”)] asking if he could pick Bradshaw up from
       work.     After Conway picked up Bradshaw, Bradshaw
       informed Conway that they would be able to make some
       money if they could also pick up [Appellant] in Carlisle.
       Conway picked up [Appellant] and, at [Appellant’s] request,
       they proceeded to pick up Mathna, who also lived in
       Carlisle.

       After Conway picked up Bradshaw, Mathna, and [Appellant],
       the group began discussing plans to rob a Uni-Mart in
       Mechanicsburg, and Conway drove to that location. During
       the drive to the Uni-Mart in Mechanicsburg, [Appellant]
       pulled out an “Angry Birds” backpack which contained the
       Smith & Wesson firearm that had been taken from the
       Shiloh Court property. When they arrived at the Uni-Mart in
       Mechanicsburg, Conway parked in a development across the
       street, and Bradshaw, Mathna, and [Appellant] exited the
       vehicle and walked on foot to the Uni-Mart. Their attempt
       to rob the Uni-Mart was futile, because the store was
       closed, so Bradshaw, Mathna, and [Appellant] returned to
       Conway’s vehicle.

       After their unsuccessful attempt to rob the Uni-Mart,
       Conway began driving back to Carlisle when [Appellant]
       suggested that they could rob another convenience store,
       specifically, the Hess Express on Carlisle Pike. On the way
       to the Hess Express, the group began discussing their roles

                                   -2-
J-S77024-16


       in the prospective robbery. [Appellant] was to go into the
       store first to “look around,” and then Bradshaw and Mathna
       would follow when they received word to proceed from
       [Appellant]. Bradshaw would carry the gun, and Mathna
       would carry the backpack. The three of them would call
       Conway when they needed to be picked up after the
       robbery was complete.

       Conway dropped Bradshaw, Mathna, and [Appellant] off
       behind the Hess Express and drove away.          Bradshaw,
       Mathna, and [Appellant] gathered behind a pine tree next to
       the Hess Express to prepare themselves for the robbery,
       and all three men again discussed their respective roles in
       the robbery. At this time, Bradshaw took the firearm from
       [Appellant’s] backpack. As they had discussed previously,
       [Appellant] entered the convenience store first, looked
       around, and called Bradshaw to proceed with the robbery.
       Bradshaw and Mathna then entered the store, both wearing
       gloves and masks, and proceeded to try to rob the clerk,
       Linda Ness (hereinafter “Ness”). Ness was not looking
       towards the doorway and center of the store when
       Bradshaw first approached the counter, so Bradshaw asked
       her to turn around. Bradshaw pointed the gun directly at
       Ness and twice ordered her to give him money from the
       register. Bradshaw fired one shot, and Ness was fatally
       wounded. Ness did not have a weapon on her and did not
       put up any fight. Bradshaw and Mathna ran from the store
       without taking anything. Eventually, all three men were
       picked back up by Conway, as planned.

       By the time Sergeant Todd Lindsay of the Silver Spring
       Police Department arrived at the Hess Express, Ness was
       “without life.”   The cause of Linda Ness’s death was
       determined to be a single gunshot wound to the chest and
       neck. Officer Seth Weikert, Silver Spring Township Police
       Department, and Detective Les Freehling of the Cumberland
       County     Criminal  Investigation   Division   interviewed
       [Appellant]. [Appellant] explained that he was the first
       individual seen on the Hess Station video surveillance (that
       the Commonwealth produced at trial) to enter the Hess
       [Express] and that, after leaving the store, he passed the
       two individuals that next entered the store. [Appellant]
       admitted to providing the gun to the shooter approximately
       an hour before the shooting. [Appellant] said that he and

                                  -3-
J-S77024-16


         [the] three other individuals planned the robbery at the
         Hess [Express] approximately five minutes before stopping
         there. Neither [Appellant] nor Bradshaw testified at trial.

Trial Court Opinion, 5/5/2016, at 2-5 (footnotes and record citations

omitted).

      The Commonwealth charged Appellant with various crimes related to

the two incidents, as well as charges related to two other residential

burglaries.   One residential burglary occurred the day prior to the Shiloh

Court burglary; the other occurred closely after the Hess Express robbery.

Prior to trial, Appellant filed a motion to sever the charges    On July 8, 2014,

the trial court held a hearing on the motion to sever.          By order of court

entered on August 26, 2014, the trial court granted Appellant’s motion to

sever in part and denied it in part. The trial court severed the burglary prior

to the Shiloh Court burglary and the burglary subsequent to the Hess

Express robbery.     The trial court determined that there was a logical

connection between the Shiloh Court burglary and Hess Express robbery,

because the burglary produced the Smith & Wesson firearm that was used to

kill Linda Ness during the Hess Express robbery. The trial court determined

that evidence of the one crime was admissible as to the other, because the

evidence constituted a chain or sequence of events that formed the history

of the   case   under   the   res gestae   exception to    Pa.R.E. 404(b)(2).

Furthermore, the trial court also concluded, pursuant to Rule 404(b)(2), that

evidence from the Shiloh Court burglary was admissible to prove Appellant’s




                                     -4-
J-S77024-16



knowledge, opportunity, plans, preparations, and identity in the Hess

Express robbery.

      Hence, the case that is the subject of the instant appeal proceeded

only on the charges related to the Shiloh Court burglary and Hess Express

robbery. Following a three-day trial in September 2014, the jury found

Appellant guilty of the aforementioned crimes. On December 16, 2014, the

trial court imposed an aggregate sentence of life imprisonment upon

Appellant.   More specifically, the trial court imposed life imprisonment for

second-degree murder. It further imposed terms of imprisonment of 80 to

160 months for conspiracy to commit homicide, 60 to 120 months for

robbery, 40 to 80 months for conspiracy to commit robbery, 12 to 24

months for burglary, and 12 to 24 months for conspiracy to commit

burglary. These sentences were imposed concurrently to the life sentence

for second-degree murder. No direct appeal followed.

      On June 1, 2015, Appellant filed a pro se petition pursuant to the Post

Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546.         The trial court

appointed counsel, who filed an amended PCRA petition. On December 10,

2015, the trial court held a hearing on Appellant’s amended PCRA petition.

The trial court determined that trial counsel was ineffective for failing to file

a direct appeal as directed by Appellant. Accordingly, by order entered on




                                      -5-
J-S77024-16



December 11, 2015, the trial court reinstated Appellant’s direct appeal rights

nunc pro tunc. This timely direct appeal resulted.2

       On appeal, Appellant presents the following issues for our review:

         I.     Whether the trial court erred when it denied
                Appellant’s motion to sever [the charges of] burglary
                and criminal conspiracy to [commit] burglary [arising
                from the Shiloh Court incident] from [the charges of]
                robbery and homicide [relating to the events at the
                Hess Express]?

         II.    Whether the evidence presented at trial was sufficient
                to convict Appellant of [] second[-]degree murder?

         III.   Whether the evidence presented at trial was sufficient
                to convict Appellant of criminal conspiracy to
                [commit] criminal homicide?

         IV.    Whether the [trial] court erred when it failed to define
                the “in furtherance” element during its instruction on
                second[-]degree murder?

Appellant’s Brief at 8 (complete capitalization omitted).

       In his first issue presented, Appellant claims, “the trial court erred

when it failed to sever the Shiloh Court burglary case from the Hess Express

robbery case.”      Id. at 17.      Appellant claims that his “identity was never

raised as a defense at trial nor were Appellant’s knowledge, opportunity,

plans, or preparations.”       Id. at 18.      He claims there was no “dispute that

____________________________________________


2
   Appellant filed a notice of appeal on January 8, 2016. On January 12,
2016, the trial court directed Appellant to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant complied
timely. The trial court issued an opinion pursuant to Pa.R.A.P. 1925(a) on
May 6, 2016.



                                           -6-
J-S77024-16



Appellant was in possession of the firearm prior to the Hess Express

robbery” but regardless, “such evidence would have been irrelevant as to

whether a gun was used to murder Ness.” Id.                Appellant contends that the

evidence would not have been admissible in separate trials because “there

was absolutely no reason the jury needed to know that the gun used in the

[Hess Express] robbery and murder had been stolen by Appellant three

weeks earlier in a burglary.”      Id.    Appellant contends that he was unduly

prejudiced by the trial court’s failure to sever the charges which allowed the

Commonwealth        to   “essentially    bolster[]   the    testifying   co-defendant’s

credibility by allowing propensity evidence that Appellant was a thief and a

criminal.” Id. at 19.

      Appellate review of a trial court's denial of a motion for severance is as

follows:

           A motion for severance is addressed to the sound discretion
           of the trial court, and its decision will not be disturbed
           absent a manifest abuse of discretion. The critical
           consideration is whether the appellant was prejudiced by
           the trial court's decision not to sever. The appellant bears
           the burden of establishing such prejudice.

           The Pennsylvania Rules of Criminal Procedure govern the
           severance of offenses. Rule 583 states, “The court may
           order separate trials of offenses or defendants, or provide
           other appropriate relief, if it appears that any party may be
           prejudiced by offenses or defendants being tried together.”
           Pa.R.Crim.P. 583. Further, Rule 582 provides that offenses
           may be tried jointly under the following circumstances:

           Rule 582. Joinder–Trial of Separate Indictments or
           Informations


                                          -7-
J-S77024-16


            (A)       Standards

            (1)       Offenses charged in separate indictments or
                      informations may be tried together if:

                      (a)   the evidence of each of the offenses
                            would be admissible in a separate trial
                            for the other and is capable of separation
                            by the jury so that there is no danger of
                            confusion; or

                      (b)   the offenses charged are based on the
                            same act or transaction.


         Pa.R.Crim.P. 582(A)(1).

Commonwealth v. Mollett, 5 A.3d 291, 305–306 (Pa. Super. 2010)

(ellipsis omitted).

      Appellant’s position on severance relies heavily on his contention that

the trial court erred in determining that evidence pertaining to the Shiloh

Court burglary would have been admissible at a separate trial concerning the

Hess Express robbery under Pa.R.E. 404(b).              In particular, Appellant

challenges the trial court’s application of the res gestae exception in

concluding that severance was unnecessary because evidence of the Shiloh

Court and Hess Express crimes would be admissible at separate trials.

         Bad acts evidence is inadmissible to prove a defendant
         acted in conformity with those acts or to demonstrate a
         criminal propensity. However, evidence of bad acts is
         admissible pursuant to our rules of evidence to prove
         motive, opportunity, intent, preparation, plan, knowledge,
         identity, and absence of mistake or accident. Pa.R.E.
         404(b)(2). This list is non-exclusive. Indeed, prior to the
         codification of our rules of evidence, our Supreme Court set
         forth the following list of exceptions to the general
         prohibition against bad acts evidence:

                                        -8-
J-S77024-16



          (1) motive; (2) intent; (3) absence of mistake or
          accident; (4) a common scheme, plan or design
          embracing commission of two or more crimes so
          related to each other that proof of one naturally
          tends to prove the others; (5) to establish the
          identity of the person charged with the commission
          of the crime on trial where there is such a logical
          connection between the crimes that proof of one will
          naturally tend to show that the accused is the person
          who committed the other; (6) to impeach the
          credibility of a defendant who testifies in his trial; (7)
          situations where defendant's prior criminal history
          had been used by him to threaten or intimidate the
          victim; (8) situations where the distinct crimes were
          part of a chain or sequence of events which formed
          the history of the case and were part of its natural
          development (sometimes called “res gestae”
          exception).

       Our Supreme Court has consistently recognized that
       admission of distinct crimes may be proper where it is part
       of the history or natural development of the case, i.e., the
       res gestae exception.

       […O]ur Supreme Court [has] explained,

          the “res gestae” exception to the general
          proscription against evidence of other crimes, is also
          known as the “complete story” rationale, i.e.,
          evidence of other criminal acts is admissible “to
          complete the story of the crime on trial by proving
          its immediate context of happenings near in time
          and place.”

       Where the res gestae exception is applicable, the trial court
       must balance the probative value of such evidence against
       its prejudicial impact. In conducting this balancing test,

          courts must consider factors such as the strength of
          the “other crimes” evidence, the similarities between
          the crimes, the time lapse between crimes, the need
          for the other crimes evidence, the efficacy of
          alternative proof of the charged crime, and “the

                                    -9-
J-S77024-16


            degree to which the evidence probably will rouse the
            jury to overmastering hostility.”

Commonwealth v. Brown, 52 A.3d 320, 325–327 (Pa. Super. 2012)

(some internal citations omitted).

      In this case, in weighing the probative value of other crimes evidence

under Rule 404(b) against its prejudicial effect, the trial court relied upon

our Supreme Court’s decision in Commonwealth v. Cousar, 928 A.2d 1025

(Pa. 2007). See Trial Court Opinion, 5/5/2016, at 9. In that case, Cousar

“was charged by three separate bills of information with, inter alia, two

counts of criminal homicide and two counts of robbery” emerging from three

separate criminal episodes that all occurred within one month of each other.

Cousar, 928 A.2d at 1029 (parentheticals omitted). Therein:

        On April 5, 1999, [Cousar] shot and killed Luis Santos on a
        street corner at point-blank range, and stole a gold chain
        necklace from around Santos's neck. Three weeks later, on
        April 26, 1999, [Cousar] was seen arguing with William
        Townes as [Cousar] stood on a street corner and Townes
        sat in his vehicle. [Cousar] drew a gun and shot Townes
        three times at close range, killing him. Thereafter, on May
        6, 1999, [Cousar], together with three compatriots, forcibly
        entered Frank Schoenberger's home, robbed and beat him
        at gunpoint, and fled when the police arrived. An officer
        apprehended [Cousar] as he was running from the scene.
        The following day, Schoenberger discovered that the
        intruders had left a handgun inside his home. Police
        firearms experts identified the gun as the weapon used to
        kill Santos and Townes. All three incidents took place within
        several blocks of [Cousar’s] place of residence in the
        Hunting Park section of Philadelphia.

Id. at 1029.




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J-S77024-16



     In deeming consolidation of the offenses from the three distinct crimes

proper in Cousar, our Supreme Court concluded:

       a crucial piece of evidence linking the two homicides was
       the use of the same gun. Any conclusion drawn by the jury
       concerning whether [Cousar] was the person who used that
       weapon to kill Santos would bear upon the identity of the
       individual who shot Townes, and vice versa. Furthermore,
       [our Supreme Court] believe[d] the jury was able to
       separate the evidence pertaining to the two homicides
       because each was (obviously) committed against a different
       victim, none of the eyewitnesses to the two incidents
       overlapped, and different investigating officers testified at
       trial as to each crime. [Our Supreme Court] acknowledge[d]
       the potential for prejudice from consolidation, as the
       evidence tying [Cousar] to one of the murders could have
       affected the jury's consideration of whether [Cousar] was
       guilty of the other one. In determining whether
       other-crimes evidence is admissible, however, the trial court
       must balance this type of potential prejudice against the
       probative value of the evidence in question. Here, as
       explained above, the evidence was very probative, and
       thus, it would not be unreasonable to conclude that its
       probative value outweighed the potential for such prejudice.

       Along these lines, in considering [Cousar’s] suggestion
       concerning the potential introduction of the Schoenberger
       evidence at hypothetical separate murder trials, it may be
       noted that such proof would not have had the same
       probative value if used in this manner: it would only have
       tended to prove that the murder weapon used in each
       homicide was left in the Schoenberger residence by either
       [Cousar] or one of the three other assailants involved in
       that case. By contrast [] the proof that the gun that
       witnesses placed in [Cousar’s] hands during the Santos
       killing was also used to kill Townes carried significant
       additional probative value as to the identity of Townes's
       killer, and vice versa. Under these circumstances, even if
       the Commonwealth could have proceeded on the murder
       charges separately as [Cousar] suggest[ed], [the
       Pennsylvania Supreme Court] conclude[d] that the trial
       court acted within its discretion in permitting consolidation.

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J-S77024-16



Id. at 1038-1039.

     In this case, the trial court severed the burglaries that occurred before

and after the Shiloh Court burglary and Hess Express robbery. However, the

trial court declined to sever the Shiloh Court burglary and Hess Express

crimes from each other. As the trial court explained,

        [T]he res gestae exception applied to the Shiloh Court
        burglary and Hess Express crimes.        These incidents took
        place within three weeks of one another, only a few miles
        apart from one another, and [Appellant] was a key actor in
        both incidents. The firearm which was used to kill Linda
        Ness in the Hess Express robbery was the fruit of the Shiloh
        Court burglary. As such, [the trial court] found that such
        evidence “was part of the natural development of facts,” as
        contemplated by [our Supreme Court]. These two crimes,
        as well as [Appellant’s] actions in the time between crimes,
        formed one complete story which shows [Appellant’s]
        knowledge, opportunity, plan and preparation for the Hess
        Express crimes.

        [The trial court] further found that the Shiloh Court burglary
        was admissible for the allowable purpose of proving
        [Appellant’s] knowledge, opportunity, plans, preparations,
        and specifically, [Appellant’s] identity.    That [Appellant]
        took three firearms from the Shiloh Court property, sold two
        of them, and kept the third was admissible to show that
        [Appellant] was planning and preparing for another robbery
        (which by opportunity later was Hess Express). Mathna’s
        testimony that [Appellant] kept possession of the Smith &
        Wesson pistol following the Shiloh Court burglary showed
        that [Appellant] had the opportunity to bring the firearm in
        the Angry Birds backpack on that night and proves the
        identity of [Appellant] as a co-conspirator [in the Hess
        Express incident]. That [Appellant] and Mathna test-fired
        the pistol in a field showed [Appellant’s] knowledge that the
        firearm worked and was capable of being used in the
        prospective robbery, thereby negating any claim of accident
        or mistake.



                                    - 12 -
J-S77024-16


       The [trial court] further found that the probative value of
       the evidence outweighed its potential for prejudice. In []
       Cousar, the Supreme Court upheld the trial court’s decision
       to conduct a single trial on [Cousar’s] two murder charges
       and two robbery charges, despite the fact that these four
       charges arose from three separate incidents. The Supreme
       Court found the fact that [Cousar] possessed the firearm in
       question at the scene of the second murder to be probative
       of the whether [Cousar] had committed the other crimes for
       which he was being tried.

                           *         *           *

       Similarly, in the present case, [the trial court] found the fact
       that [Appellant was the source of the firearm used at the
       Hess Express robbery and homicide], is highly probative of
       the fact that it was [Appellant] who burglarized the Shiloh
       Court property and stole the firearm. Conversely, the fact
       that [Appellant] took the firearm from the Shiloh property
       just a few weeks before the homicide makes it more
       probable that [Appellant] was the perpetrator who had
       possession of the firearm on the night of the Hess Express
       robbery and homicide.         While the admission of such
       evidence is prejudicial to [Appellant], the probative value of
       such evidence outweighed any prejudice resulting
       therefrom. Thus, [the trial court] found that evidence from
       the Shiloh Court incident would be admissible in a separate
       trial for the Hess Express incident, and vice versa.

                           *         *           *

       [Moreover,] the Shiloh Court burglary and Hess [E]xpress
       robbery and homicide involved distinct types of crimes, each
       crime involved different victims, and the crimes were
       distinguishable in time and space. Furthermore, although
       [Appellant] and Mathna were involved in both the Shiloh
       Court burglary and Hess Express crimes, the Hess Express
       crimes involved different co-defendants who were not
       involved in the Shiloh Court burglary. Although Mathna
       testified about all of the crimes, numerous other witnesses
       testified about the Shiloh Court and Hess Express crimes
       individually, without overlap. As such, the [trial court]
       found that the jury was capable of separating the evidence
       of each offense, and found very little chance that the jury

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J-S77024-16


        would be confused. […] To further eliminate any confusion
        by the jury, [the trial court] twice gave the jury an
        instruction on the separation of such evidence[.]

                           *         *           *

        [Finally, Appellant] was not unduly prejudiced by the joint
        trial and evidence of the Shiloh Court and Hess Express
        crimes. As discussed previously, [the trial court] saw little
        danger that the jury would be incapable of separating the
        evidence of each crime. There was not a significant threat
        that the jury would inappropriately cumulate the evidence
        to find [Appellant] guilty of [all] crimes. The [trial court]
        found that the Shiloh Court burglary and the Hess Express
        robbery and homicide were sufficiently intertwined as to
        justify a joint trial. As such, the only prejudice [Appellant]
        suffered was the type of general prejudice any defendant
        suffers when the Commonwealth’s evidence links him to the
        crime for which he is being prosecuted[.]

        [The trial court] note[d] that it did not so find the same in
        weighing the prejudice to [Appellant] in admitting the other
        two burglaries the Commonwealth sought to introduce at
        trial.   Although notably such crimes would have been
        admissible to prove common scheme, plan, motive, intent
        or lack of accident, and such evidence would have been
        capable of separation by the jury, the [trial court] found
        that [Appellant] would be unduly prejudiced by the
        admission of the burglaries it excluded. No criminal fruits of
        the other two burglaries were used during the commission
        of the Hess Express crimes. As such, those [burglary]
        crimes, albeit highly relevant, were more attenuated than
        was the Shiloh Court burglary evidence that was allowed in
        at trial. Accordingly, [the trial court] excluded [the] two
        other burglary charges and evidence attendant thereto
        during the instant trial.

Trial Court Opinion, 5/5/2016, at 8-12 (citations and footnotes omitted).




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J-S77024-16



       We agree and discern no abuse of discretion in consolidating the two

cases for trial.    Initially, we reject Appellant’s suggestion that knowledge,

opportunity, plans, preparation and/or his identity were not issues at trial.3

Appellant does not argue that the crimes were not close in time and

proximity.    In addition, Appellant concedes that the jury was capable of

separating the evidence between the Shiloh Court burglary and the Hess

Express robbery and murder.              Appellant’s Brief at 19.   Moreover, we

conclude the trial court properly relied upon the res gestae exception to Rule

404(b) in denying severance.           Appellant fails to address the trial court’s

finding that the intervening events between the burglary and robbery were

relevant to understanding Appellant’s role in both the robbery and murder.

Evidence from both crimes showed Appellant’s acquisition, possession,

testing, and control over the firearm, all of which were pivotal components

of the Commonwealth’s burden of showing Appellant’s participation in both

episodes.    More specifically, the trial court recognized that Appellant stole
____________________________________________


3
   Indeed, even on appeal to this Court, viewing the evidence in the light
most favorable to himself, Appellant attempts to minimize his involvement in
the Hess Express robbery and murder by suggesting that the murder was
not in furtherance of the robbery and that it took place after he left the
store. Appellant’s Brief at 22-23. Appellant also suggests that he did not
know his co-defendant would use the firearm in the robbery. Id. at 23.
Clearly, these contentions relate specifically to knowledge, opportunity,
planning, preparation and/or identity. Moreover, since the Commonwealth
bore the burden of proof to show Appellant’s participation in the crimes as
either a principal actor or co-conspirator (or both), Appellant’s possession
and control of the firearm played key roles at trial despite Appellant’s
position as to what issues he contested before the factfinder.



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J-S77024-16



the firearm in the burglary, later test-fired it (which showed Appellant’s

knowledge that the weapon was working and capable of use), and, in turn,

presented it to his co-defendant before the robbery.     Trial Court Opinion,

5/5/2016, at 9.   The trial court found that evidence linking the firearm to

both crimes was highly probative in each prosecution and outweighed the

prejudice to Appellant.     Based upon our Supreme Court’s decision in

Cousar, we discern no abuse of discretion.

      Appellant’s second and third issues both challenge the sufficiency of

the evidence.   When examining a challenge to the sufficiency of evidence,

our standard of review is as follows:

        The standard we apply in reviewing the sufficiency of the
        evidence is whether viewing all the evidence admitted at
        trial in the light most favorable to the verdict winner, there
        is sufficient evidence to enable the fact-finder to find every
        element of the crime beyond a reasonable doubt. In
        applying [the above] test, we may not weigh the evidence
        and substitute our judgment for the fact-finder. In addition,
        we note that the facts and circumstances established by the
        Commonwealth need not preclude every possibility of
        innocence. Any doubts regarding a defendant's guilt may
        be resolved by the fact-finder unless the evidence is so
        weak and inconclusive that as a matter of law no probability
        of fact may be drawn from the combined circumstances.
        The Commonwealth may sustain its burden of proving every
        element of the crime beyond a reasonable doubt by means
        of wholly circumstantial evidence. Moreover, in applying
        the above test, the entire record must be evaluated and all
        evidence actually received must be considered. Finally, the
        trier of fact while passing upon the credibility of witnesses
        and the weight of the evidence produced, is free to believe
        all, part or none of the evidence




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Commonwealth v. Beasley, 138 A.3d 39, 45 (Pa. Super. 2016) (citation

omitted).

       In   his    second   issue    presented,      Appellant    contends   there   was

insufficient evidence to convict him of second-degree murder under the

theory that he conspired to commit the Hess Express robbery, an

enumerated felony.4 Appellant’s Brief at 20-23. More specifically, Appellant

claims,     “the   evidence    was    insufficient    to   show   that   [co-defendant]

Bradshaw’s slaying of Ness was in furtherance of the robbery.” Id. at 22.

He further avers that there was insufficient evidence that Appellant knew his

co-defendant would use the firearm in the robbery:


____________________________________________


4
    We note that the trial court examined this issue as one involving
Appellant’s liability as an accomplice to criminal homicide and robbery. See
Trial Court Opinion, 5/5/2016, at 12-15 generally; see also id. at 13 n.54
(“Notably, [Appellant] was charged with accomplice liability to homicide and
to the robbery [in the Commonwealth’s a]mended information [filed] on
June 11, 2014.”). However, upon review of the amended information filed
on June 11, 2014, the Commonwealth never charged Appellant as an
accomplice.     With respect to the Hess Express incident, the amended
information charged Appellant with second-degree murder, criminal
conspiracy to commit criminal homicide, robbery, and criminal conspiracy to
commit robbery.        The information incorporated the language from 18
Pa.C.S.A. § 903 (criminal conspiracy) for both the criminal conspiracy to
commit criminal homicide and criminal conspiracy to commit robbery
charges. Moreover, the jury’s verdict and the trial court’s judgment of
sentence reflect convictions for conspiracy to commit both criminal homicide
and robbery. Therefore, in reviewing Appellant’s sufficiency challenge, we
shall consider whether the Commonwealth proved beyond a reasonable
doubt that Appellant, as a co-conspirator in the robbery of the Hess Express,
was criminally liable for second-degree murder in the death of the
convenience store clerk.



                                          - 17 -
J-S77024-16


        In fact, Appellant specifically stated that he wanted nothing
        to do with the firearm.        There was no evidence that
        Appellant commanded Bradshaw to take the firearm or that
        Appellant knew that Bradshaw intended to brandish the
        firearm during the robbery.

Id. at 23.

      Regarding conspiracy, our Supreme Court has held:

        To convict a defendant of conspiracy, the trier of fact must
        find that: (1) the defendant intended to commit or aid in
        the commission of the criminal act; (2) the defendant
        entered into an agreement with another (a “co-conspirator”)
        to engage in the crime; and (3) the defendant or one or
        more of the other co-conspirators committed an overt act in
        furtherance of the agreed upon crime. The essence of a
        criminal conspiracy [] is the agreement made between the
        co-conspirators.

        As with accomplice liability, “[m]ere association with the
        perpetrators, mere presence at the scene, or mere
        knowledge of the crime is insufficient” to establish that a
        defendant was part of a conspiratorial agreement to commit
        the crime. There needs to be some additional proof that the
        defendant intended to commit the crime along with his
        co-conspirator. Direct evidence of the defendant's criminal
        intent or the conspiratorial agreement, however, is rarely
        available. Consequently, the defendant's intent as well as
        the agreement is almost always proven through
        circumstantial evidence, such as by the relations, conduct or
        circumstances of the parties or overt acts on the part of the
        co-conspirators.

Commonwealth v. Murphy, 844 A.2d 1228, 1238 (Pa. 2004) (internal

quotations and citations omitted).

      Moreover, an en banc panel of this Court has determined:

        Once there is evidence of the presence of a conspiracy,
        conspirators are liable for acts of co-conspirators committed
        in furtherance of the conspiracy. Even if the conspirator did
        not act as a principal in committing the underlying crime, he


                                     - 18 -
J-S77024-16


       is still criminally liable for the actions of his co-conspirators
       taken in furtherance of the conspiracy.

       The general rule of law pertaining to the culpability of
       conspirators is that each individual member of the
       conspiracy is criminally responsible for the acts of his
       co-conspirators committed in furtherance of the conspiracy.
       The co-conspirator rule assigns legal culpability equally to
       all members of the conspiracy. All co-conspirators are
       responsible for actions undertaken in furtherance of the
       conspiracy regardless of their individual knowledge of such
       actions and regardless of which member of the conspiracy
       undertook the action.

       The premise of the rule is that the conspirators have formed
       together for an unlawful purpose, and thus, they share the
       intent to commit any acts undertaken in order to achieve
       that purpose, regardless of whether they actually intended
       any distinct act undertaken in furtherance of the object of
       the conspiracy. It is the existence of shared criminal intent
       that is the sine qua non of a conspiracy.

Commonwealth v. Lambert, 795 A.2d 1010, 1016–1017 (Pa. Super.

2002) (en banc).

     Regarding second-degree murder, we have stated:

       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.
       […P]erpetration of a felony [is defined] as:

           the 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.




                                    - 19 -
J-S77024-16


         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.[5]

         [Our Supreme Court discussed] the elements of
         [co-conspirator] liability for felony murder [by] saying that:

              ... the 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, […w]hen 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.

         [O]ur Supreme Court [has] explained that not only the
         killer, but all participants in a felony, including the getaway

____________________________________________


5
    Further, we have stated:

         The Commonwealth is not relieved of the burden to prove
         that the defendant engaged in the underlying felony with
         the requisite mens rea. Since each crime enumerated in
         the felony-murder statute is a crime of specific intent, the
         Commonwealth must prove such intent. Once such intent is
         shown, the felony-murder doctrine merely imputes the
         malice incident to the intentional felony over to the killing,
         which, moreover, must be accomplished in furtherance of
         the intentional felony.

Commonwealth v. Rawls, 477 A.2d 540, 543 (Pa. Super. 1984) (emphasis
in original).



                                          - 20 -
J-S77024-16


        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. It
        does not matter whether the appellant anticipated that the
        victim would be killed in furtherance of the conspiracy.
        Rather, the fact finder determines whether the appellant
        knew or should have known that the possibility of death
        accompanied a dangerous undertaking.

Lambert, 795 A.2d at 1022–1023 (original brackets, quotations and

citations omitted).

      Here, the       trial court determined there   was ample    direct and

circumstantial evidence of a conspiracy:

        [Appellant] was the one who provided the ultimate murder
        weapon, mere minutes before the murder occurred.
        [Appellant] also was the one to identify the Hess Express as
        the target of the robbery. […T]he nature of and extent of
        the conspiracy was developed at trial. Both Mathna and
        Conway testified that [Appellant] and the others discussed
        their roles in the Hess Express robbery as they drove to the
        scene of the crime and they prepared for the robbery
        behind a pine tree next to the store. Conway testified that,
        while driving to the location of the Hess Express, the group
        discussed who was going to actually pull the gun out [] in
        the impending robbery. [Appellant] was aware the gun was
        going to be used in the robbery. Furthermore, [Appellant]
        was aware that the firearm was functional, and Conway’s
        testimony that [Appellant] “said he didn’t want anything to
        do with the gun because he didn’t want to shoot nobody []”
        demonstrated that [Appellant] knew that using the firearm
        in the robbery might result in someone getting shot and
        killed. The evidence showed that [Appellant] conspired with


                                     - 21 -
J-S77024-16


         the others to actively plan the crime, and he committed acts
         in furtherance of the crime when he gave Bradshaw the gun
         and entered the store as a look out.

Trial Court Opinion, 5/5/2016, at 17-18 (record citations, footnotes, and

some quotations omitted).6

       We also conclude there was sufficient evidence to establish that

Bradshaw killed Ness in furtherance of the Hess Express robbery, which

Appellant conspired to commit. Our review of the record confirms there was

evidence showing that Appellant conspired to rob the Hess Express

convenience store. Here, a co-conspirator shot and killed Linda Ness after

demanding money.          Even though Appellant did not act as a principal in

committing the robbery or murder, his status as a co-conspirator in the

robbery made him criminally liable for the actions of his confederates taken

in furtherance of the conspiracy. Based upon this evidence, the jury

permissibly determined that the killing was in furtherance of the robbery.

Further, the intent to commit the robbery is imputed to the killing of Linda

Ness to support a finding of second-degree murder against all participants in
____________________________________________


6
     While this analysis was offered by the trial court in addressing the
sufficiency challenge to Appellant’s conviction for conspiracy to commit
homicide conviction, this factual conclusion supports the theory that
Appellant conspired to commit robbery. Moreover, Appellant does not argue
there was insufficient evidence to support his convictions for robbery and
conspiracy to commit robbery. Because there was sufficient evidence of a
conspiracy to commit robbery, which Appellant does not challenge, Appellant
was liable for all of the crimes committed in furtherance of the robbery,
including second-degree murder.




                                          - 22 -
J-S77024-16



the conspiracy, regardless of whether actual harm was intended or foreseen.

Hence, we conclude there was sufficient evidence to support Appellant’s

conviction for second-degree murder.

       In his third issue presented, Appellant argues that the Commonwealth

did not present sufficient evidence to support his conviction for conspiracy to

commit homicide.7 Appellant’s Brief at 23-25. More specifically, and similar
____________________________________________


7
      To understand our disposition fully, we briefly review the factual and
procedural backdrop of this conviction.           The Commonwealth charged
Appellant in the amended criminal information with homicide generally and
conspiracy to commit homicide. The jury verdict form asked the jury to first
determine if it found Appellant guilty of criminal conspiracy to commit
homicide. Then, if the jury found Appellant guilty of conspiracy to commit
homicide, it was to specify the degree of homicide under the conspiracy.
The verdict form reflects that the jury found Appellant guilty of criminal
conspiracy to commit criminal homicide and then fixed the degree of
homicide as second-degree. Verdict Form, 9/12/2014. In its subsequent
order announcing the judgment of sentence and throughout its Rule 1925(b)
opinion, the trial court still refers to the conviction as criminal conspiracy to
commit criminal homicide generally.            See Order, 12/17/2014, at 1
(unpaginated); see also Trial Court Opinion, 5/5/2016, at 1, 15-18.
Moreover, the trial court sentenced Appellant to 80 to 160 months for
conspiracy to commit homicide. Under the Crimes Code, inchoate crimes,
such as conspiracy, have the same maximum sentences as the underlying
crimes to which they relate. Commonwealth v. Hoke, 962 A.2d 664, 668
(Pa. 2009), citing 18 Pa.C.S.A. §§ 106(b) and 905(a). Thus, upon the jury’s
finding that Appellant was guilty of conspiracy to commit second-degree
murder,     the    trial   court    should    have    sentenced    Appellant   to
life-imprisonment.       Thus, the judgment of sentence on this conspiracy
conviction does not align with the jury’s verdict.              We note these
inconsistencies, however, only to show the trial court’s apparent confusion
surrounding the conspiracy to commit homicide charge. Nevertheless, we
need not resolve these sentencing issues because, as discussed at length
infra, 18 Pa.C.S.A. § 903(c) prohibits multiple conspiracy convictions for
multiple crimes that are the object of the same agreement or continuous
conspiratorial relationship.



                                          - 23 -
J-S77024-16



to his previous argument, Appellant maintains, “the evidence was insufficient

to prove that Appellant knew Bradshaw would use a firearm during the Hess

Express robbery” or that he “conspired with his co[-]defendants to bring

about harm to Ness.” Id. at 24. We read this claim as an assertion that

there was only one conspiratorial agreement with a single objective.

     The conspiracy statute contains the following provision:

        (c) Conspiracy with multiple criminal objectives.--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.A. § 903(c).

     This Court has stated:

        Section 903(c) articulates a concept which is not new in
        American jurisprudence, “‘The conspiracy is the crime, and
        that is one, however diverse its objects.’” Braverman v.
        United States, 317 U.S. 49, 54 (1942), quoting Frohwerk
        v. United States, 249 U.S. 204, 210 (1919). See also W.
        LaFave and A. Scott, CRIMINAL LAW § 62 (1972) (“An
        agreement to commit several crimes is but one
        conspiracy.”). In Braverman, supra, the Supreme Court
        went on to explain that, “the single agreement is the
        prohibited conspiracy, and however diverse its objects it
        violates but a single statute....” Id., 317 U.S. at 54.

        […T]his principle [has] been further defined:

           A single, continuing conspiracy is demonstrated
           where the evidence proves that the essential feature
           of the existing conspiracy was a common plan or
           scheme to achieve a common, single, comprehensive
           goal.... A single, continuing conspiracy may
           contemplate a series of offenses, or be comprised of
           a series of steps in the formation of a larger, general
           conspiracy.... Therefore, where the evidence at trial

                                   - 24 -
J-S77024-16


            is sufficient for the jury to infer that the essential
            features of the existing conspiracy were a common
            plan or scheme to achieve a common, single,
            comprehensive goal or end, then the conclusion that
            the conspiracy was a single, continuing conspiracy is
            justified.

Commonwealth v. Troop, 571 A.2d 1084, 1089–1090 (Pa. Super. 1990);

see also Commonwealth v. Henkel, 487 A.2d 1010, 1013 (Pa. Super.

1985) (“[C]onspiracy is not severable as to diverse crimes contemplated by

a single agreement[.]”).

      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) (ellipsis

omitted).

      Here, as set forth in detail above, the conspiratorial agreement was to

rob the Hess Express by threat of force with a firearm. A shooting occurred,

which ultimately caused the death of the victim.      The criminal acts took

place simultaneously at the same location, and while pursuing the same

common objective. Because the homicide occurred as a result of a single,



                                    - 25 -
J-S77024-16


comprehensive goal to commit robbery, Appellant cannot be punished for

two separate conspiracies. See Commonwealth v. Barnes, 924 A.2d 1202

(Pa. 2007) (defendant's and co-conspirators' conduct in selling cocaine,

robbing victim, and murdering victim was result of one continuous

conspiratorial relationship and could support only one conviction for

conspiracy to deliver cocaine, that crime being the underlying foundation of

agreement upon which conspiracy charges were based; events occurred

within one 24-hour period, and all pertinent events took place in the same

location, involved the same actors, and were in furtherance of the same

objective).      The homicide here occurred in furtherance of a single

conspiratorial goal – the robbery of the Hess Express.8 Accordingly, we

vacate Appellant’s judgment of sentence for conspiracy to commit homicide.

____________________________________________


8
   As we have explained, Appellant was liable for the second-degree murder
regardless of an agreement to harm or kill the victim. Although Appellant
supplied an operable firearm for the robbery, there is simply no evidence of
record that there was a separate conspiracy to harm or kill the victim.
Finally, even if there were a separate conspiracy to kill the victim, this Court
recently questioned the viability of a conviction for conspiracy to commit
second-degree murder:

         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. Evanchyk v. Stewart,
         340 F.3d 933, 939–940 (9th Cir. 2003) (holding that, under
         Arizona law, one cannot conspire to commit felony murder);
         see also Evanchyk v. Stewart, 47 P.3d 1114, 1119
         (2002); State v. Wilson, 43 P.3d 851, 853–854 (2002)
         (opining that Kansas does not recognize the crime of
(Footnote Continued Next Page)


                                          - 26 -
J-S77024-16


      However, because the trial court imposed a concurrent sentence for

Appellant’s conspiracy to commit homicide conviction, we have not upset the

trial court’s sentencing scheme and we need not remand this case for

resentencing.     See Commonwealth v. Thur, 906 A.2d 552, 570 (Pa.

Super. 2006) (finding no need for remand because vacating sentence did not

disturb sentencing scheme where that sentence was concurrent with other

terms and did not increase the aggregate length of incarceration).

      Finally, in this fourth issue presented, Appellant argues the trial court

erred by failing to define the term “in furtherance of” in its jury instruction

regarding the elements of second-degree murder, as set forth under

Pennsylvania Suggested Standard Jury Instruction 2502B. Appellant’s Brief

at 25-26.    He claims that “[t]he omission of this definition amounted to a

fundamental error because [the trial court] failed to define an essential

element of proof required for a jury to return a verdict of guilty.” Id. at 26.

                       _______________________
(Footnote Continued)

         conspiracy to commit felony murder because conspiracy
         requires a specific intent). 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. Commonwealth v. Spells, 612 A.2d 458, 460
         n.5 (Pa. Super 1992); Commonwealth v. Griffin, 456
         A.2d 171, 177 (Pa. Super. 1983). 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. Fisher, 80
         A.3d 1186 (Pa. 2013).

Commonwealth v. Mitchell, 135 A.3d 1097, 1101 n.2 (Pa. Super. 2016).



                                           - 27 -
J-S77024-16


      This issue is waived.     Appellant did not make an on-the-record,

contemporaneous objection when the trial court reviewed the relevant

portion of its instructions to the jury.     See N.T., 9/10/2014, at 181, 185;

N.T., 9/11/2014, at 73-74 (no objection to written form jury instructions).

“Issues not raised in the [trial] court are waived and cannot be raised for the

first time on appeal.” Pa.R.A.P. 302(a). “[I]t is axiomatic that issues are

preserved when objections are made timely to the error or offense.”

Commonwealth v. Baumhammers, 960 A.2d 59, 73 (Pa. 2008). “The

purpose of contemporaneous objection requirements respecting trial-related

issues is to allow the court to take corrective measures and, thereby, to

conserve limited judicial resources.” Commonwealth v. Sanchez, 36 A.3d

24, 42 (Pa. 2011).       “[A] party may not remain silent and afterwards

complain of matters which, if erroneous, the court would have corrected.”

Commonwealth v. Strunk, 953 A.2d 577, 579 (Pa. Super. 2008).

Accordingly, Appellant waived his fourth appellate issue.

      Conviction and sentence for conspiracy to commit homicide vacated.

Judgment    of   sentence    affirmed   in    all   other   respects.   Jurisdiction

relinquished.

      Judge Panella joins.

      Judge Platt files a Concurring and Dissenting Memorandum.




                                    - 28 -
J-S77024-16


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/2/2017




                          - 29 -
