J-A24009-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                       Appellant               :
                                               :
                                               :
                v.                             :
                                               :
                                               :
    WELDON LUCAS                               :   No. 2248 EDA 2018

                   Appeal from the Order Entered July 2, 2018
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-0016035-2008


BEFORE:      BENDER, P.J.E., DUBOW, J., and COLINS, J.*

MEMORANDUM BY BENDER, P.J.E.:                          Filed: February 7, 2020



        The Commonwealth appeals from the post-conviction court’s July 2,

2018 order granting Appellee, Weldon Lucas, a new trial based on the

ineffectiveness of his trial counsel. After careful review, we reverse the court’s

order and reinstate Lucas’s judgment of sentence.

        This Court previously set forth the facts and procedural history of Lucas’s

underlying convictions, as follows:

           On October 7, 2008, Lucas intervened to protect his friend
           Shonda when she was being threatened by her boyfriend,
           Hamski, who had beaten her on earlier occasions. Lucas
           and Hamski got into a fight that ended when others pulled
           the two men apart. The complaining witness in this case,
           Alvin Morris…, was a friend of Hamski’s and saw the fight.


____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
J-A24009-19


        The following day, after Lucas finished work…, he went to
        his sister Tonya’s house where he waited in his car for her
        to get home safely. He was concerned for Tonya’s safety,
        fearing potential retaliation for the fight of the previous day.
        He talked with his friend, Ricky Myers, while he waited.
        Lucas heard a noise and noticed bright flickering lights in
        Tonya’s house. Both men rushed inside, discovered a
        number of homemade Molotov cocktails had been lit and
        thrown in through the window, and quickly put them out so
        the house would not go up in flames. Lucas and Ricky Myers
        immediately went in search of the culprit. Moments later,
        Ricky Myers encountered Alvin Morris in an area near
        Tonya’s house and shouted to Lucas to come over to where
        they were standing. Lucas subsequently shot Morris eleven
        times.

     Trial Court Opinion, 5/3/11, at 1-2.

            Lucas was arrested and charged with attempted murder,
     conspiracy to commit murder, aggravated assault, reckless
     endangerment, possession of instruments of crime (“PIC”),
     firearms not to be carried without a license, possession of a
     firearm by a person prohibited, and carrying a firearm on the
     public streets of Philadelphia. Lucas pled not guilty and proceeded
     to a jury trial.

           During the jury’s deliberations, the trial judge, the
     Honorable Lisa M. Rau, was called away to fulfill a longstanding
     teaching obligation in San Francisco. As a result, the Honorable
     Ramy Djerassi filled in for her for the purpose of responding to
     any questions presented by the jury. On May 24, 2010, the jury
     asked the following question: “Is Charge Number 2 ‘Criminal
     conspiracy F-1’ synonymous with ‘conspiracy to commit murder’?”
     Having consulted with Judge Rau, and [having] received the
     agreement of both counsel, Judge Djerassi instructed the jury, in
     pertinent part, as follows:

        The defendant is charged with conspiracy to commit murder
        and/or aggravated assault. So any suggestion otherwise on
        Paragraph One of the written jury charges was a
        typographical error. So it is conspiracy to commit murder
        and/or aggravated assault.

     N.T. Trial, 5/24/10, at 12.



                                     -2-
J-A24009-19


             Lucas was found guilty of reckless endangerment, carrying
      a firearm without a license, carrying a firearm on the public streets
      of Philadelphia and criminal conspiracy. The jury did not specify
      whether the conspiracy conviction related to murder or
      aggravated assault. Lucas was acquitted of the remainder of the
      charges, including attempted murder and aggravated assault.

Commonwealth v. Lucas, 368 EDA 2011, unpublished memorandum at 1-3

(Pa. Super. filed Feb. 8, 2012) (brackets omitted).

      At Lucas’s subsequent sentencing hearing, the Commonwealth sought

application of a 10-year, mandatory-minimum sentence for Lucas’s conspiracy

offense under 42 Pa.C.S. § 9714(a)(1) (requiring a 10-year, mandatory-

minimum sentence for any person convicted of a second “crime of violence”).

Although defense counsel conceded that the mandatory term was applicable,

the trial court refused to apply that sentence, instead imposing a term of 11½

to 23 months’ incarceration for Lucas’s conspiracy conviction.                The

Commonwealth timely appealed, and this Court vacated Lucas’s sentence and

remanded for the court to impose the mandatory term required by section

9714(a)(1). The trial court did so on September 9, 2016.

      Lucas then filed a timely direct appeal, asserting several challenges to

the court’s jury instructions, including a claim that the trial court erred by

instructing the jury that he could be found guilty of conspiracy to commit

aggravated assault, when he had only been charged with conspiracy to

commit murder. Notably, the trial court agreed with Lucas that it had erred

in providing this instruction, and that a new trial was warranted. See Trial

Court Opinion, 12/30/16, at 4-5.          Nevertheless, this Court affirmed,

concluding that Lucas had waived his jury instruction claims because his

                                      -3-
J-A24009-19



counsel never objected to the at-issue instructions. See Commonwealth v.

Lucas, No. 3011 EDA 2016, unpublished memorandum at 4-6 (Pa. Super.

filed Jan. 26, 2018).

      On March 5, 2018, Lucas filed a timely PCRA petition, contending that

his trial counsel was ineffective for failing to object to two errors in the court’s

jury instructions: (1) the court’s failure “to specify, in its [c]onspiracy charge,

that in order to find [Lucas] guilty[,] the jury must find that he ‘intentionally

and with malice attempted to cause the death of another person’”; and (2)

the court’s improper instruction to the jury that Lucas was “charged with

conspiracy to commit murder and/or aggravated assault.”             PCRA Petition,

3/5/18, at 3 (unnumbered). On May 14, 2018, the Commonwealth filed an

answer to Lucas’s petition.     Lucas and the Commonwealth agreed that no

evidentiary hearing was necessary. On July 2, 2018, the trial court granted

the petition, vacated Lucas’s judgment of sentence, and ordered a new trial.

      The Commonwealth filed a timely notice of appeal, as well as a Pa.R.A.P.

1925(b) concise statement of errors complained of on appeal. On September

26, 2018, the PCRA court filed a Rule 1925(a) opinion.                 Herein, the

Commonwealth states one issue for our review: “Did trial counsel, the

Defender Association of Philadelphia, commit constitutionally ineffective

assistance by agreeing to charge the jury on the lesser-included offense of

conspiracy to commit aggravated assault, where [Lucas] was fully apprised of

the applicable evidence and elements, and where the charge succeeded in

reducing [Lucas’s] potential liability?” Commonwealth’s Brief at 2.

                                       -4-
J-A24009-19



     Preliminarily, we observe that,

     “[o]n appeal from the denial of PCRA relief, our standard and
     scope      of review is  limited    to   determining       whether
     the PCRA court’s findings are supported by the record and without
     legal error.” Commonwealth v. Edmiston, 65 A.3d 339, 345
     (Pa. 2013) (citation omitted). “[Our] scope of review is limited to
     the findings of the PCRA court and the evidence of record, viewed
     in the light most favorable to the prevailing party at
     the PCRA court level.” Commonwealth v. Koehler, … 36 A.3d
     121, 131 ([Pa.] 2012) (citation omitted). “The PCRA court’s
     credibility determinations, when supported by the record, are
     binding on this Court.” Commonwealth v. Spotz, 610 Pa. 17,
     18 A.3d 244, 259 (2011) (citation omitted). “However, this Court
     applies a de novo standard of review to the PCRA court’s legal
     conclusions.” Id.

Commonwealth v. Medina, 92 A.3d 1210, 1214–15 (Pa. Super. 2014) (en

banc).

     Additionally, where, as here, a petitioner claims that he received

ineffective assistance of counsel, our Supreme Court has stated that:

     [A] PCRA petitioner will be granted relief only when he proves, by
     a preponderance of the evidence, that his conviction or sentence
     resulted from the “[i]neffective assistance of counsel which, in the
     circumstances of the particular case, so undermined the truth-
     determining process that no reliable adjudication of guilt or
     innocence could have taken place.”             Generally, counsel’s
     performance is presumed to be constitutionally adequate, and
     counsel will only be deemed ineffective upon a sufficient showing
     by the petitioner. To obtain relief, a petitioner must demonstrate
     that counsel’s performance was deficient and that the deficiency
     prejudiced the petitioner. A petitioner establishes prejudice when
     he demonstrates “that there is a reasonable probability that, but
     for counsel’s unprofessional errors, the result of the proceeding
     would have been different.” … [A] properly pled claim of
     ineffectiveness posits that: (1) the underlying legal issue has
     arguable merit; (2) counsel’s actions lacked an objective
     reasonable basis; and (3) actual prejudice befell the petitioner
     from counsel’s act or omission.


                                    -5-
J-A24009-19



Commonwealth v. Johnson, 966 A.2d 523, 532-33 (Pa. 2009) (citations

omitted).

      Here, the PCRA court concluded that Lucas is entitled to a new trial

based on his counsel’s failure to object to following three errors committed by

the trial court: (1) the erroneous instruction “that [] Lucas could be found

guilty of conspiracy to commit aggravated assault when he was never charged

or arraigned on that crime[;]” (2) the court’s failure “to properly instruct the

jury on the specific intent required to find [Lucas] guilty of either conspiracy

to commit murder or conspiracy to commit aggravated assault[;]” and (3) the

court’s “recording the verdict when the jury did not specify the underlying

crime that [] Lucas conspired to commit.” PCRA Court Opinion, 12/30/16, at

4-5 (footnotes omitted). For the reasons that follow, we disagree with the

PCRA court that any of these purported errors necessitates a new trial.

      First, the PCRA court found that a new trial is warranted because Lucas’s

counsel acted ineffectively by failing to object to the instruction that Lucas

could be convicted of conspiracy to commit murder and/or aggravated

assault.    In his petition, Lucas contended that this instruction improperly

permitted the jury to convict him of an offense for which he was not charged,

thereby prejudicing him by depriving him of notice and the opportunity to

defend against that charge.     See PCRA Petition at 4 (unnumbered).         On

appeal, he elaborates that his “trial strategy was geared toward defending

against the allegation that he [c]onspired to [m]urder the victim[,]” not that

he conspired to commit aggravated assault. Lucas’s Brief at 9. Therefore,

                                     -6-
J-A24009-19



Lucas insists that the court’s adding the conspiracy to commit aggravated

assault charge, without any objection by his counsel, “rendered his trial

strategy ineffective….” Id. Accordingly, Lucas argues that the PCRA court

correctly concluded that his counsel acted ineffectively, and properly granted

him a new trial.

      In response, the Commonwealth maintains that Lucas failed to

demonstrate any error in the court’s instruction, nor that he was prejudiced

by counsel’s failure to object to it. The Commonwealth stresses that,

      “[t]he settled law in Pennsylvania has been that a defendant may
      be convicted of an offense that is a lesser-included offense of the
      crime actually charged.” Commonwealth v. Sims, 919 A.2d
      931, 938 (Pa. 2007). “As long as the conviction is for a lesser-
      included offense, the defense will have been put on notice of the
      charges against him and can adequately prepare a defense.”
      Commonwealth v. Reese, 725 A.2d 190, 191 (Pa. Super. 1999)
      (citation omitted). Conspiracy to commit aggravated assault [is]
      a lesser-included offense of conspiracy to commit murder. See
      Commonwealth v. Anderson, 650 A.2d 20, 24 (Pa. 1994)
      (aggravated assault is a lesser-included offense of attempted
      murder).

Commonwealth’s Brief at 17-18.

      The Commonwealth’s argument is convincing. In Sims, our Supreme

Court upheld Sims’ conviction for the uncharged offense of attempted escape,

concluding it was a lesser-included offense of the charged crime of escape.

The Court explained that permitting convictions for uncharged, lesser-included

offenses “promotes judicial economy, avoids inconsistent results, and

enhances the quality of jury deliberations by assuring that factfinders,

informed of the option of convicting of related offenses, focus their attention


                                     -7-
J-A24009-19



on the presence or absence of those elements that distinguish the greater or

lesser offenses.”   Sims, 919 A.2d at 938 (internal citations and quotation

marks omitted).     However, the Sims Court recognized that, “[a]lthough

Pennsylvania has consistently approved of the doctrine, the more difficult

question has always been determining what constitutes a lesser-included

offense.” Id. To this end, the Court adopted the Model Penal Code’s definition

of ‘lesser-included offense,’ which “identifies three situations in which a

defendant may be convicted of an offense included in the offense charged….”

Id. at 940. The Model Penal Code states:

      (4) Conviction of Included Offense Permitted. A defendant
      may be convicted of an offense included in an offense charged in
      the indictment [or the information]. An offense is so included
      when:

         (a) it is established by proof of the same or less than all the
         facts required to establish the commission of the offense
         charged; or

         (b) it consists of an attempt or solicitation to commit the
         offense charged or to commit an offense otherwise included
         therein; or

         (c) it differs from the offense charged only in respect that a
         less serious injury or risk of injury to the same person,
         property or public interest or a lesser kind of culpability
         suffices to establish its commission.

      MODEL PENAL CODE § 1.07(4) (alteration in original).

Id.

      In the present case, the crime of conspiracy to commit aggravated

assault constitutes a lesser-included offenses of conspiracy to commit murder

under the ‘statutory elements approach’ of section 1.07(4)(a).             See id.


                                      -8-
J-A24009-19



(stating that section 1.07(4)(a) “reflects the statutory element approach” to

defining a lesser-included offense).    Both offenses require proof of: “1) an

agreement, 2) shared criminal intent, and 3) an overt act.” Commonwealth

v. Johnson, 180 A.3d 474, 479 (Pa. Super. 2018) (citation omitted). While

the criminal intent between the two crimes differs, our Supreme Court has

held that “the intent necessary to establish the offense of … murder — specific

intent to kill — is greater than and necessarily includes the intentional,

knowing, or reckless infliction of serious bodily injury, the intent required for

aggravated assault.” Anderson, 650 A.2d at 24. Thus, because the crime of

conspiracy to commit aggravated assault is proven by evidence of the same

or less than all the facts required to establish the commission of conspiracy to

commit murder, it constitutes a lesser-included offense under section

1.07(4)(a).

      Alternatively, we also find the definition set forth in section 1.07(4)(c)

to be applicable to the at-issue offenses. Specifically, conspiracy to commit

aggravated assault differs from conspiracy to commit murder only in the

respect that a less serious injury or risk of injury to the victim (serious bodily

injury, rather than death) suffices to establish the commission of conspiracy

to commit aggravated assault. In addition, conspiracy to commit aggravated

assault differs from conspiracy to commit murder only in the fact that a lesser

culpability can establish its commission. See id. Accordingly, conspiracy to

commit aggravated assault also meets the definition of a lesser-included

offense of conspiracy to commit murder under section 1.07(4)(c).

                                       -9-
J-A24009-19



      In sum, we conclude that the court did not err by instructing the jury

that it could convict Lucas of the lesser-included offense of conspiracy to

commit aggravated assault. Thus, Lucas’s claim that his counsel should have

objected to that charge lacks arguable merit.

      Additionally, Lucas’s contention that he was prejudiced because he did

not have notice or an opportunity to defend against the charge of conspiracy

to commit aggravated assault clearly fails under the rationale of Sims. See

Sims, 919 A.2d at 940-41 (“The defendant does not need separate notice to

defend against [a lesser-included offense under section 1.07(4)(a)] because

the defense that he prepares against the offenses charged will necessarily

attempt to refute the Commonwealth’s evidence of the lesser offenses.”); id.

at 941-42 (“[B]y charging [a defendant] with the more serious offense, the

Commonwealth has given the defendant the information that he needs to

choose and tailor his defense strategy.      Accordingly, [s]ection 1.07(4)(c)

likewise is consistent with a defendant’s right to due process.”). Moreover, as

the Commonwealth points out, Lucas’s actual “defense to the shooting of Mr.

Morris in no way depended on the legal distinction between conspiracy to

commit    murder    and    conspiracy   to   commit    aggravated     assault.”

Commonwealth’s Brief at 20. The Commonwealth explains:

      From opening to closing, and from [Lucas’s] own mouth on the
      witness stand, the defense claim was that it was [Lucas’s] friend
      who was the shooter, that [Lucas] had gone out with the
      friend…[,] but that [Lucas] had no idea his friend was carrying a
      gun or would actually shoot anyone. The defense, in short, was
      that [Lucas] was essentially a bystander who did not conspire to
      injure, let alone kill, the victim. Under these circumstances,

                                    - 10 -
J-A24009-19


      [Lucas] is at a loss even to postulate any reason why counsel
      would have wanted to object to the court’s legally correct charge
      on conspiracy.

Id. at 20-21. We agree with the Commonwealth’s analysis.

      We also agree with the Commonwealth that Lucas’s “argument that he

was unfairly exposed to unforeseen elements … is simply untrue.” Id. at 18.

The Commonwealth stresses that,

      [a]ll elements of conspiracy to commit aggravated assault were
      contained within the crimes charged: attempted murder,
      aggravated assault, and conspiracy. And all of these elements
      related to a single victim and a single set of facts: the testimony
      of the Commonwealth’s witnesses that [Lucas] set out to shoot
      Mr. Morris and acted with another person in doing so. Under
      settled law, he cannot claim any lack of notice.

Id.

      It is clear from the Commonwealth’s argument, the record before us,

and the case law discussed supra, that the trial court’s instruction that Lucas

could be convicted of conspiracy to commit aggravated assault was not

improper and it did not prejudice Lucas, as he had adequate notice and

opportunity to defend against that lesser-included offense.     Consequently,

Lucas failed to demonstrate that his trial counsel acted ineffectively by not

objecting to that instruction, and the PCRA court erred by granting him a new

trial on this basis.

      We next conclude that the PCRA court erred by basing its grant of a new

trial on a conclusion that Lucas’s counsel was ineffective for not objecting

when “the [c]ourt failed to properly instruct the jury on the specific intent

required to find [Lucas] guilty of either conspiracy to commit murder or


                                    - 11 -
J-A24009-19



conspiracy to commit aggravated assault….” PCO at 5 (footnote omitted). In

Lucas’s petition, his entire argument on this point was as follows:

      Although the jury was instructed that [Lucas] was charged with
      [c]riminal [c]onspiracy to commit [m]urder, the [c]ourt failed to
      specify, in its [c]onspiracy charge, that in order to find [Lucas]
      guilty[,] the jury must find that he “intentionally and with malice
      attempted to cause the death of another person.” (See Exhibit 3
      - Bills of Information). Counsel for [Lucas] failed to object or ask
      for a more specific instruction on the charge of [c]riminal
      [c]onspiracy.

PCRA Petition at 3.

      Notably, Lucas did not mention the court’s failure to instruct on the

intent necessary for conspiracy to commit aggravated assault; thus, we agree

with the Commonwealth that the PCRA court erred by sua sponte raising that

issue. See Commonwealth’s Brief at 23 n.8.

      The Commonwealth also points out that Lucas “failed to show the

necessary prejudice for his ineffective assistance claim.”    Id. at 24.     It is

apparent from the above-quoted portion of Lucas’s petition that he offered no

discussion of how he was prejudiced by the omission of a specific-intent

instruction regarding conspiracy. See Commonwealth v. Spotz, 84 A.3d

294, 320 (Pa. 2014) (“[T]o establish prejudice from trial counsel’s failure to

object to the challenged portion of the … charge, [a petitioner] must show

there is a reasonable probability that, but for counsel’s error or omission, the

result of the proceeding would have been different.”) (citation omitted). As

the Commonwealth stresses, the jury convicted Lucas of conspiracy generally;

thus, we cannot presume, as does Lucas and the PCRA court, that he was


                                     - 12 -
J-A24009-19



convicted of conspiracy to commit murder, which requires a specific intent to

kill.1   Lucas could have instead been convicted of conspiracy to commit

aggravated assault, which was the crime for which he was ultimately

sentenced. If so, then the court’s omission of an instruction on specific intent

to kill would not have changed the outcome of the trial. Again, Lucas offered

no argument in his PCRA petition regarding how, under the unique

circumstances of this case, the jury’s verdict would have been different, had

his counsel objected to the court’s failure to provide a specific-intent

instruction for conspiracy. Therefore, he failed to demonstrate prejudice, and

the PCRA court erred by granting him a new trial.

         Order reversed.       Judgment of sentence reinstated.     Jurisdiction

relinquished.

         Judge Dubow joins this memorandum.

         Judge Colins notes his dissent.


____________________________________________


1 We reiterate that Lucas did not object to the court’s recording the jury’s
general verdict on conspiracy, without specification of the object crime. The
PCRA court concluded that Lucas’s counsel was ineffective for this failure. See
PCO at 5. However, we do not see this claim raised anywhere in Lucas’s PCRA
petition. Therefore, the court erred by sua sponte finding that counsel acted
ineffectively in this regard. We observe that this Court previously chastised
this trial/PCRA court for raising errors sua sponte, concluding that the court
was effectively “engag[ing] in what amounts to advocacy on behalf of Lucas.”
See Lucas, No. 368 EDA 2011, unpublished memorandum at 6 n.12. As we
stressed in our prior decision, “[s]ua sponte consideration of issues deprives
counsel of the opportunity to brief and argue the issues and the court of the
benefit of counsel’s advocacy.” Id. (citing Wiegand v. Wiegand, 337 A.2d
256, 257 (Pa. 1975)).


                                          - 13 -
J-A24009-19




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/7/20




                          - 14 -
