J-S70019-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    TERRY DAVID KLINE, JR.                     :
                                               :
                      Appellant                :   No. 940 MDA 2017

                   Appeal from the PCRA Order May 12, 2017
                 In the Court of Common Pleas of Berks County
              Criminal Division at No(s): CP-06-CR-0005241-2007


BEFORE: GANTMAN, P.J., SHOGAN, J., and OTT, J.

MEMORANDUM BY SHOGAN, J.:                            FILED NOVEMBER 28, 2017

        Appellant, Terry David Kline, Jr., appeals from the order that denied

his petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42

Pa.C.S. §§ 9541-9546.1 We affirm.

        A prior panel of this Court set forth the relevant facts and procedural

history of this matter as follows:

        [O]n the night of September 6, 2007, five men including
        Appellant, his brother, Kenneth Kline (hereinafter referred to as
        “Kenneth”),     Timothy     Gearhart,    Derik    Houser,     and
        Andrew Weber, planned to go to Shorty’s Bar in Kutztown to
        celebrate Appellant’s twenty-fourth birthday. Houser drove the
        five men in his vehicle and the group arrived at the bar between
        midnight and 12:30 a.m. on the morning of September 7, 2007.
____________________________________________


1  Following a jury trial, Appellant was convicted of aggravated assault, 18
Pa.C.S. § 2702(a)(1), conspiracy to commit third-degree murder, 18 Pa.C.S.
§ 903, and conspiracy to commit aggravated assault, 18 Pa.C.S. § 903.
J-S70019-17


     After the bar closed at approximately 2:00 a.m., the five men
     congregated outside near Houser’s car. A witness, who was also
     standing outside of the bar, claimed that Appellant, Kenneth,
     and Gearhart were “hyped up” and “excited,” and that Appellant
     wanted to fight someone just for the sake of fighting. N.T. Trial,
     11/3-7/08, at 167. The witness also stated that Appellant was
     out of control and argued with another individual in the vicinity
     of the group. Houser interceded, however, and at his urging,
     Appellant, Kenneth, Gearhart, and Weber got into Houser’s car
     to go home.

           Once underway, however, Appellant began accusing
     Houser of “disrespecting him,” and challenging him to a fight.
     Id. at 326. Appellant then jumped out of Houser’s car, took off
     his shirt, and urged Houser to get out of the car to fight him.
     Houser was able to calm Appellant down and convince him to get
     back into the vehicle.

            As the group resumed their journey home, they came upon
     three individuals standing on the sidewalk speaking to one
     another. Gearhart suggested that if they wanted to start a fight,
     they should provoke one of these three people. Appellant,
     Kenneth, and Gearhart told Houser to stop, at which point the
     three men got out of Houser’s car, said “let’s fuck somebody
     up,” and approached the three individuals. Id. at 331. Houser
     and Weber drove around the corner and parked near the
     intersection of Main and Noble Streets. Meanwhile, Appellant,
     Kenneth, and Gearhart began to aggressively accuse the three
     individuals of making derogatory statements to them. One of
     the individuals claimed that the men were yelling and getting
     close enough to make her feel threatened. When a police car
     drove down a nearby alley and someone yelled, “cops,” id. at
     218, Appellant, Kenneth, and Gearhart left the scene and walked
     toward Houser’s car parked on Main Street.

           When the three men reached Main Street, they
     encountered another bystander, Kyle Quinn. Quinn, who was
     walking to his dormitory, was talking on his cell phone when he
     was confronted by Kenneth. Kenneth asked Quinn to whom he
     was speaking, and when Quinn responded that he was not
     speaking to Kenneth, Kenneth grabbed [Quinn’s] cell phone and
     threw it into the street.   Appellant, Gearhart, and Kenneth
     surrounded Quinn and began yelling at him.            Eventually,
     Appellant threw a punch at Quinn. In the midst of the fight,

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     Gearhart picked up a table leg, which he found in the vicinity,
     and swung it with great force, striking Quinn on the left side of
     his face. Quinn fell to the sidewalk, bleeding profusely. The
     blow to Quinn’s head tore the artery at the base of his brain,
     which caused massive bleeding resulting in his death.

            After Quinn fell to the ground, Kenneth and Gearhart got
     into Houser’s car, but Appellant continued to stand over Quinn’s
     body, saying, “I don’t hear you talking anymore, bitch,” and
     calling Quinn other derogatory names. When Appellant finally
     returned to the car, he and his two cohorts encouraged Houser
     to drive away. However, before they could flee, Police Officer
     Corporal Paul Clery of the Kutztown Borough Police Department
     pulled alongside Houser’s car and blocked their escape. Within
     minutes, additional police officers arrived at the scene and each
     of the five men were taken into custody.

           Both Appellant and Kenneth subsequently gave statements
     to police on September 7, 2007, and again on September 10,
     2007. While the men initially denied any involvement in the
     attack on Quinn, Appellant eventually admitted that Kenneth
     approached Quinn and exchanged words, after which Kenneth
     took Quinn’s phone and threw it across the street. Appellant
     also confessed that he began arguing with Quinn, and that he
     saw Gearhart pick up an object and hit Quinn with it. He stated
     that Quinn fell to the ground and he, Kenneth, and Gearhart got
     into Houser’s car to flee. Appellant told police that he began
     arguing with Quinn in order to protect his brother, but
     acknowledged that Quinn did not strike at any of the three men.

           Appellant, Kenneth, and Gearhart were all charged with
     various offenses in connection with Quinn’s assault and death.
     Gearhart subsequently entered a guilty plea to third-degree
     murder and conspiracy to commit aggravated assault. He was
     sentenced to an aggregate term of 20 to 40 years’ incarceration,
     followed by 20 years’ probation.       Appellant and Kenneth
     proceeded to trial as co-defendants, both charged with third-
     degree murder, conspiracy to commit third-degree murder,
     aggravated assault, and conspiracy to commit aggravated
     assault. While the jury ultimately acquitted both Appellant and
     Kenneth of third-degree murder, it returned guilty verdicts on
     the remaining charges. Appellant was subsequently sentenced
     to 20 to 40 years’ imprisonment for the conspiracy to commit
     third-degree murder conviction, as well as a concurrent term of

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     20 years’ probation for the crime of aggravated assault. The
     offense of conspiracy to commit aggravated assault was deemed
     to merge for sentencing purposes.

           Appellant filed a timely notice of appeal, as well as a timely
     concise statement of matters complained of on appeal pursuant
     to Pa.R.A.P. 1925(b). Herein, he raises the following two issues
     for our review:

           A. The evidence was insufficient as a matter of law
           and against the weight of the evidence to convict
           Appellant of conspiracy to commit third-degree
           murder, aggravated assault and conspiracy to
           commit aggravated assault where there was no
           evidence presented that Appellant had the intent to
           kill or ... that he was implicated in any conspiracy or
           accomplice liability.

           B. The sentence was excessive and an abuse of
           discretion based on the sentencing guidelines and
           the social history that was presented to the court.
           The sentence also violated the State and Federal
           Constitutions in that it constitutes cruel and unusual
           punishment.

     Appellant’s Brief at 6.

            Our Court filed an initial memorandum decision in this case
     on February 10, 2011. Therein, we concluded that the offense of
     conspiracy to commit third[-]degree murder was a legal nullity.
     Commonwealth v. Kline, 148 MDA 2009, unpublished
     memorandum at 6-8 (Pa. Super. filed February 10, 2011).1 We
     felt compelled to reach this result based on this Court’s prior
     decision in Commonwealth v. Clinger, 833 A.2d 792 (Pa.
     Super. 2003) (stating “third[-]degree murder is a killing done
     with malice that is neither intentional nor committed in the
     course of a felony”), and our Supreme Court’s interpretation of
     Clinger in Commonwealth v. Weimer, 977 A.2d 1103, 1105
     (Pa. 2009) (stating, in a parenthetical accompanying a citation
     to Clinger, that Clinger stands for the proposition that “because
     it is impossible for one to intend to commit an unintentional act,
     it is impossible to commit the crime of conspiracy to commit
     third[-]degree murder”).


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            1  We acknowledged that Appellant did not challenge
            his conviction for conspiracy to commit third[-]
            degree murder on this basis. However, we reasoned
            that we were required to raise this issue sua sponte,
            as it impacted the legality of Appellant’s sentence
            and the jurisdiction of the trial court to impose a
            sentence for that offense.      Id. at 6 n.2 (citing
            Commonwealth v. Kozrad, 499 A.2d 1096, 1097–
            98 (Pa. Super. 1985) (“It is required of this Court to
            correct   an    illegal sentence      sua     sponte.”);
            Commonwealth v. Boerner, 422 A.2d 582, 588
            n.11 (Pa. Super. 1980) (finding that where it is
            beyond the power of the court to impose a sentence,
            an issue regarding the court’s jurisdiction is raised)).

             Because we concluded in our initial memorandum decision
      that there was no such offense as conspiracy to commit third[-]
      degree murder, we vacated Appellant’s judgment of sentence for
      that offense and remanded for resentencing. Consequently, we
      did not address the merits of Appellant’s sentencing issue. We
      did, however, assess the merits of his challenge to the
      sufficiency and weight of the evidence to support his convictions
      for aggravated assault and conspiracy to commit aggravated
      assault.   We concluded that the evidence was sufficient to
      support Appellant’s convictions for those crimes, and that the
      jury’s verdict was not against the weight of the evidence. See
      Kline, 148 MDA 2009, at 8–13.

            On October 30, 2013, our Supreme Court issued
      Commonwealth v. Fisher, 80 A.3d 1186 (Pa. 2013), which
      abrogated Clinger and held that conspiracy to commit third[-]
      degree murder is a cognizable offense.     Id. at 1195.    On
      March 5, 2014, our Supreme Court issued a per curiam order
      granting allowance of appeal in this case and vacating our
      decision pursuant to Fisher. The Court remanded this matter to
      our Court for further proceedings.

Commonwealth v. Kline, 106 A.3d 155, 148 MDA 2009 (Pa. Super. filed

August 8, 2014) (unpublished memorandum at 1-7).

      On remand, this      Court addressed Appellant’s challenge       to   his

convictions as follows:

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     Criminal conspiracy is defined by our Crimes Code as follows:

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

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

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

     18 Pa.C.S. § 903(a). Our Court has also summarized the
     elements of criminal conspiracy as follows:

          To sustain a conviction for criminal conspiracy, the
          Commonwealth must establish that the defendant
          (1) entered into an agreement to commit or aid in an
          unlawful act with another person or persons, (2) with
          a shared criminal intent and (3) an overt act was
          done in furtherance of the conspiracy. This overt act
          need not be committed by the defendant; it need
          only be committed by a co-conspirator.

     Commonwealth v. McCall, 911 A.2d 992, 996 (Pa. Super.
     2006) (citations and quotation marks omitted).

           In regard to Appellant’s specific conviction for conspiracy
     to commit aggravated assault, this Court has stated that to
     sustain such a conviction, “the Commonwealth need only
     establish intent to commit or aid in the commission of
     aggravated assault, an agreement with a co-conspirator, and an
     overt act in furtherance of the conspiracy.” Commonwealth v.
     Thomas, 65 A.3d 939, 945 (Pa. Super. 2013). Moreover, for
     the offense of conspiracy to commit third[-]degree murder, our
     Supreme Court has clarified:




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           If a defendant acts with his co-conspirators in
           brutally attacking the victim with the intention of
           killing him, he conspires to commit first degree
           murder; if the defendant performs the same action
           but does not care whether the victim dies or not, he
           conspires to commit third[-]degree murder. In the
           latter example, the defendant did not ... intend to
           aid an unintentional murder; rather, he intended to
           aid a malicious act resulting in a killing. Malice is not
           the absence of any intent, just the specific intent to
           kill. Where ... the defendant intends the underlying
           act (the beating) which results in death, the
           evidence supports the charge of conspiracy to
           commit third[-]degree murder.

     Fisher, 80 A.3d at 1195 (emphasis in original).

           In this case, it is clear from the factual summary, stated
     supra, that the evidence was sufficient to enable the jury to find,
     beyond a reasonable doubt, that Appellant conspired with
     Gearhart and Kenneth to commit the aggravated assault and
     third[-]degree murder of Quinn. Namely, witnesses testified
     that after Appellant left the bar, he was looking for a fight and
     tried to engage several people in altercations, including his
     companion, Houser. When Appellant and his cohorts came upon
     Quinn, they encircled him and Appellant threw the first punch.
     Appellant admitted that during the course of the fight, he saw
     Gearhart pick up an object and hit Quinn hard from behind.
     After Quinn fell to the sidewalk, Appellant stood over his body
     taunting Quinn with insults.       Appellant then got back into
     Houser’s vehicle and directed him to leave the scene, admittedly
     in an attempt to run from the police.

            This evidence proved that Kenneth, Gearhart, and
     Appellant conspired to viciously attack Quinn, with the intent of
     causing him serious bodily injury, and without regard for
     whether Quinn lived or died.       Therefore, the evidence was
     sufficient to convict Appellant of the crimes of conspiracy to
     commit aggravated assault and conspiracy to commit third[-]
     degree murder. Consequently, Appellant is also criminally liable
     for the aggravated assault committed by Gearhart.             See
     Commonwealth v. Lambert, 795 A.2d 1010, 1016 (Pa. Super.
     2002) (“Even if the conspirator did not act as a principal in
     committing the underlying crime, he is still criminally liable for

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        the actions of his co-conspirators taken in furtherance of the
        conspiracy.”) (citations omitted).

Kline, 148 MDA 2009 (unpublished memorandum at 4-5).             On August 8,

2014, we affirmed Appellant’s judgment of sentence. Id. at 10-11.

        On February 27, 2015, Appellant field a timely pro se PCRA petition.

The PCRA court appointed counsel who filed an amended PCRA petition on

April 15, 2016.    On February 28, 2017, the PCRA court filed its notice of

intent to dismiss Appellant’s PCRA petition without a hearing pursuant to

Pa.R.Crim.P. 907, and on May 12, 2017, the PCRA court dismissed

Appellant’s PCRA petition. On June 12, 2017, Appellant filed a timely notice

of appeal. Both Appellant and the PCRA court have complied with Pa.R.A.P.

1925.

        On appeal, Appellant raises the following issues for this Court’s

consideration:

        1. Did the PCRA Court err in finding that trial/appellate counsel
        was not ineffective for failing to argue that conspiracy to commit
        third[-]degree murder is a legal nullity and failure to make the
        argument denied Appellant his due process rights under the
        United States and Pennsylvania constitutions?

        2. Did the PCRA Court err in finding that trial/appellate counsel
        was not ineffective for failing to object to the jury instructions
        concerning the state of mind Appellant must have when allegedly
        committed conspiracy to commit third[-]degree murder?

Appellant’s Brief at 4.

        Our standard of review of an order denying PCRA relief is whether the

record supports the PCRA court’s determination and whether the PCRA



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court’s determination is free of legal error. Commonwealth v. Phillips, 31

A.3d 317, 319 (Pa. Super. 2011).       The PCRA court’s findings will not be

disturbed unless there is no support for the findings in the certified record.

Id.

      When considering an allegation of ineffective assistance of counsel,

counsel is presumed to have provided effective representation unless the

PCRA petitioner pleads and proves that: (1) the underlying claim is of

arguable merit; (2) counsel had no reasonable basis for his conduct; and (3)

petitioner was prejudiced by counsel’s action or omission. Commonwealth

v. Spotz, 84 A.3d 294, 311 (Pa. 2014).        “In order to meet the prejudice

prong of the ineffectiveness standard, a defendant must show that there is a

‘reasonable probability that but for counsel’s unprofessional errors, the result

of the proceeding would have been different.’” Commonwealth v. Reed,

42 A.3d 314, 319 (Pa. Super. 2012).        A claim of ineffective assistance of

counsel will fail if the petitioner does not meet any one of the three prongs.

Commonwealth v. Simpson, 66 A.3d 253, 260 (Pa. 2013). The burden of

proving ineffectiveness rests with the appellant. Commonwealth v. Rega,

933 A.2d 997, 1018 (Pa. 2007).

      Appellant first argues that Appellant’s trial counsel was ineffective for

failing to argue that conspiracy to commit third-degree murder is a legal

nullity, and this failure denied Appellant due process. We disagree.




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      As set forth above, the Supreme Court of Pennsylvania has concluded

that conspiracy to commit third-degree murder is not a legal nullity. Fisher,

80 A.3d at 1195-1196. While Appellant presents this argument in terms of

due process, we conclude that no relief is due.       Appellant’s due process

claim is based on his assertion that conspiracy to commit third-degree

murder requires an act in furtherance of the underlying crime and a

reasonably   foreseeable   consequence.       Appellant’s   Brief   at   9   (citing

Pinkerton v. United States, 328 U.S. 640 (1946) (discussing, inter alia,

the elements of conspiratorial liability)).   However, the Supreme Court of

Pennsylvania addressed these factors in Fisher and opined:

      Our review … leads us to conclude the absence of intent to kill
      does not preclude a defendant from being convicted of
      conspiracy to commit third[-]degree murder. Absence of specific
      intent is not an element of third[-]degree murder; the third[-]
      degree murder statute does not list elements or specify a
      requisite mens rea, but rather categorizes this degree of
      homicide as “all other kinds of murder” not falling within the
      definition of first or second degree murder.          18 Pa.C.S.
      § 2502(c). The Crimes Code further provides where a statute,
      such as § 2502(c), does not prescribe the culpability sufficient to
      establish a material element of the offense, such element is
      established if the defendant acted “intentionally, knowingly or
      recklessly.”   Id., § 302(c).     Thus, a defendant who acts
      intentionally in attacking his victim may still be convicted of
      third[-]degree murder.

Fisher, 80 A.3d at 1195 (some citations omitted).            The Fisher Court

concluded that convictions for conspiracy to commit third-degree murder

were appropriate where the conspirators agreed to engage in the intentional,




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malicious attack of the victim, without regard to the consequences of

that act, and that act resulted in the victim’s death. Id. at 1196.

        The same follows true here. As discussed above, when this case was

remanded, a prior panel of this Court concluded that the evidence

established that Appellant was guilty of conspiracy to commit third-degree

murder pursuant to the rationale espoused in Fisher.          Specifically, in

applying Fisher, that panel stated “Kenneth, Gearhart, and Appellant

conspired to viciously attack Quinn, with the intent of causing him

serious bodily injury, and without regard for whether Quinn lived or

died.    Therefore, the evidence was sufficient to convict Appellant of the

crimes of conspiracy to commit aggravated assault and conspiracy to commit

third[-]degree murder.” Kline, 148 MDA 2009 (unpublished memorandum

at 10) (emphasis added).

        We are required to follow the precedent of our Supreme Court, and we

must adhere to the holding in Fisher wherein the Court concluded that

conspiracy to commit third-degree murder is a viable criminal charge. See

Commonwealth v. Reed, 107 A.3d 137, 143 (Pa. Super. 2014) (“This

Court is bound by existing precedent under the doctrine of stare decisis and

continues to follow controlling precedent as long as the decision has not




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been overturned by our Supreme Court.”).2 Accordingly, Appellant’s counsel

cannot be deemed ineffective for failing to argue that conspiracy to commit

third-degree murder is a legal nullity because our Supreme Court has held

definitively that the charge is proper. Fisher, 80 A.3d at 1195.

       Appellant next argues that the PCRA Court erred in finding that trial

and appellate counsel were not ineffective for failing to object to the jury

instructions. Appellant’s Brief at 13. Specifically, Appellant claims that the

jury instruction was deficient with respect to the state of mind one must

have in order to be convicted of conspiracy to commit third-degree murder.

Id.

       We review jury instructions under the following standard:

       When evaluating the propriety of jury instructions, this Court will
       look to the instructions as a whole, and not simply isolated
       portions, to determine if the instructions were improper. We
       further note that, it is an unquestionable maxim of law in this
       Commonwealth that a trial court has broad discretion in phrasing
       its instructions, and may choose its own wording so long as the
       law is clearly, adequately, and accurately presented to the jury
       for its consideration. Only where there is an abuse of discretion
       or an inaccurate statement of the law is there reversible error.



____________________________________________


2   Moreover, this Court’s prior decision on remand applying Fisher and
holding that the evidence was sufficient for conviction is now the law of the
case. See Commonwealth v. Starr, 664 A.2d 1326, 1331 (Pa. 1995)
(stating that the law of the case doctrine “refers to a family of rules which
embody the concept that a court involved in the later phases of a litigated
matter should not reopen questions decided by another judge of that same
court or by a higher court in the earlier phases of the matter.”).



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Commonwealth v. Roane, 142 A.3d 79, 95 (Pa. Super. 2016) (citations

omitted).

      The record reveals that the trial court instructed the jury, in relevant

part, as follows:

         Third[-]degree murder is any killing with malice. To find the
      defendant guilty of this offense, you must find that the following
      three elements have been proven beyond a reasonable doubt:
      First, that Kyle Quinn is dead; second, that the defendant killed
      him; and third, that the defendant did so with malice.

         The word malice as I am using it has a special legal meaning.
      It does not mean simply hatred, spite, or ill will. Malice is a
      shorthand way of referring to particular mental states that the
      law regards as being bad enough to make a killing murder.

         For murder of the third[-]degree, a killing is with malice if the
      perpetrator’s actions show his wanton and willful disregard of an
      unjustified and extremely high risk that his conduct would result
      in death or serious bodily injury to another. In this form of
      malice, the Commonwealth need not prove that the perpetrator
      specifically intended to kill another. The Commonwealth must
      prove, however, that the perpetrator took action while
      consciously; that is, knowingly, disregarding the most serious
      risk he was creating and that, by this disregard of that risk, the
      perpetrator demonstrated his extreme indifference to the value
      of human life.

         When deciding whether the defendant acted with malice, you
      should consider all the evidence regarding his words, conduct,
      and the attending circumstances that may show his state of
      mind. If you believe that a defendant intentionally used a
      deadly weapon on a vital part of Kyle Quinn’s body, you may
      regard that as an item of circumstantial evidence from which you
      may, if you choose, infer that defendant acted with malice.

         You should realize that you may choose to find that the
      defendant acted with malice if you find an intent to cause serious
      bodily injury even if you find that there was no intent to kill. A
      defendant’s words or actions following a crime may also
      establish evidence of malice.

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                                  * * *

        The information alleges that the defendants conspired with
     each other and/or Timothy Gearhart to commit murder and
     aggravated assault and that one or several overt acts were
     done.     As far as numbers are concerned, the minimum
     requirements for a conspiracy are an agreement between two
     people to commit one crime and one overt act committed by one
     of them. Thus, you may find a defendant guilty if you are
     satisfied that he conspired with at least one alleged co-
     conspirator to commit at least one alleged object crime and that
     he or the other person did at least one alleged overt act in
     furtherance of the conspiracy.

        Before a defendant can be convicted, the 12 jurors must
     agree on the same person with whom the defendant allegedly
     conspired with, the same object crime, and the same overt act.

        In order to find a defendant guilty of a conspiracy to commit
     any of the offenses listed as the objectives of this conspiracy,
     you must be satisfied but the following three elements have all
     been proven beyond a reasonable doubt: First, that the
     defendant agreed with the other persons that one or more of
     them would engage in conduct for the planning and/or
     commission of the specified crime; second, that the defendant
     and at least one other person to which all 12 jurors agree
     intended to promote or facilitate the committing of the specified
     crime; -- in other words, they share the intention to bring about
     that crime or to make it easier to commit that crime - - and,
     third, that the defendant or the other person did the overt act
     that all 12 jurors agree to and did the overt act or acts in
     furtherance of their conspiracy.

        As a general rule, if conspirators have agreed to commit a
     crime and, after that, one of the conspirators does any act to
     carry out or advance their agreement, then he has done an overt
     act in furtherance of the conspiracy. The other conspirators do
     not have to participate in the act or even know about it. In a
     sense, they are partners.         And, like partners, they are
     responsible for each other’s actions.

N.T., 11/10/08, at 136-144.




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      These instructions parallel Pennsylvania Suggested Standard Criminal

Jury Instructions 12.903A, 12.903B, and 15.2502C and informed the jury

regarding the elements of the crimes of third-degree murder and conspiracy,

the mens rea, and shared criminal liability. The foreseeability aspect, which

Appellant alleged was absent from the charge, was specifically addressed.

The trial court’s instruction explained the requirement of an unjustified and

extremely high risk that conduct would result in death or serious bodily

injury and that the Commonwealth must prove that the actor knowingly

disregarded the most serious risk he was creating and demonstrated his

extreme indifference to the value of human life.     N.T., 11/10/08, at 137.

Thus, there is no merit to Appellant’s challenge to the jury charge.

      As part of this second issue on appeal, Appellant again assails the

foreseeability component of conspiracy to commit third-degree murder,

citing Pinkerton, and he claims that conspiracy to commit third-degree

murder is not a viable charge. Appellant’s Brief at 13-14. However, as we

discussed above, conspiracy to commit third-degree murder is a cognizable

criminal charge. Fisher, 80 A.3d at 1195.

      After review, we find that the jury instruction adequately and

accurately apprised the jurors of the proofs the Commonwealth was required

to establish beyond a reasonable doubt, we reiterate that conspiracy to

commit third-degree murder is a cognizable crime, and we conclude that

Appellant’s argument is meritless.     Because counsel cannot be deemed


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ineffective for failing to raise a meritless claim, Appellant’s second issue fails.

See Commonwealth v. Smith, 167 A.3d 782, 788 (Pa. Super. 2017)

(stating that counsel cannot be found ineffective for failing to pursue a

meritless claim).

      For the reasons set forth above, Appellant is entitled to no relief.

Accordingly, we affirm the order denying Appellant’s PCRA petition.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/28/2017




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