J-S31033-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA           :   IN THE SUPERIOR COURT OF
                                        :        PENNSYLVANIA
                                        :
                v.                      :
                                        :
                                        :
 JAMIE PAUL MCVICKER                    :
                                        :
                                        :   No. 1623 WDA 2018

        Appeal from the Judgment of Sentence Entered July 12, 2018
   In the Court of Common Pleas of Somerset County Criminal Division at
                      No(s): CP-56-CR-0000229-2017


BEFORE: OLSON, J., STABILE, J., and McLAUGHLIN, J.

MEMORANDUM BY McLAUGHLIN, J.:                FILED SEPTEMBER 13, 2019

     Jamie Paul McVicker appeals the judgment of sentence entered in the

Court of Common Pleas of Somerset County. McVicker argues the trial court

abused its discretion in admitting hearsay statements under the excited

utterance exception and challenges his conviction and sentence for attempted

third-degree murder. We conclude that, even if the trial court abused its

discretion in admitting the hearsay statements under the excited utterance

exception, any error was harmless. We agree with the parties and the trial

court that attempted third-degree murder is not a cognizable offense in

Pennsylvania and we therefore reverse the conviction for attempted third-

degree murder, vacate the accompanying sentence, and remand for

resentencing.

     In February 2017, McVicker was charged with criminal homicide,

attempt to commit criminal homicide, possession of instruments of crime, and
J-S31033-19



two counts each of aggravated assault, simple assault, and recklessly

endangering another person.1 The charges resulted from the shooting of

Britteny Kyle and Tyrell Ferguson. Kyle died as a result of the shooting and

Ferguson was wounded.

       The trial court set forth the facts, including:

          At approximately 11:11 p.m. on February 26, 2017, the
          Somerset County 911 Communications Center (hereinafter,
          “Somerset County 911”) received a call from Tyrell Ferguson
          regarding a domestic disturbance in progress at . . .
          [McVicker’s] residence at the time. As the audio from the
          911 call reveals, the initial moments of the call are chaotic
          and the voice of the victim, Britteny Kyle, can be heard in
          the background yelling for help. Given the nature of the call
          and location of the caller, the 911 operator, Craig Nicholson,
          began transferring the call to Pennsylvania State Police
          (hereinafter, PSP) for further assistance from law
          enforcement. Shortly after the PSP Police Communications
          Operator Neil Clay received the call at 11:12 p.m., and with
          both operators still on the line, multiple gunshots are heard
          over the phone along with the cries of both victims.

          [An excerpt from the call was played for the jury.]

          While there is a discrepancy between the testimony of the
          two operators regarding the number of gunshots heard on
          the 911 call,1 nevertheless, and as the transcript from the
          call indicates, Ferguson relayed to dispatchers that Kyle had
          been shot in the throat by her ex-boyfriend, [McVicker], and
          was dead. Ferguson, grazed from a bullet and bleeding, fled
          into a field and the woods surrounding the residence . . .
          fearing that [McVicker] was chasing him. When asked by
          Clay whether he had any weapons, Ferguson responded,
          “No, I just - we just got off work.” Clay inquired further as
          to the type of firearm used by [McVicker] in the assault, and


____________________________________________


1 18 Pa.C.S.A. §§ 2501, 901, 907(a), 2702(a)(4), 2701(a)(1), and 2705,
respectively.

                                           -2-
J-S31033-19


       while Ferguson was unable to provide an answer, he stated
       simply, “[h]e does have weapons.”
          1 Nicholson testified that three gunshots were fired
          during the call with Ferguson. Clay stated, in contrast,
          that he heard two.

       At trial, Ferguson testified that around 10:30 p.m. on the
       evening of February 26, 2017, he and Kyle, who were co-
       workers at SCI-Laurel Highlands in Somerset, PA, travelled
       to [McVicker’s] residence to collect her cats following the
       conclusion of their work shifts. According to Ferguson, he
       and Kyle had begun dating in January of 2017, around the
       time that Kyle’s relationship with [McVicker] was ending and
       she was in the process of moving her belongings out of
       [McVicker’s] residence. As Ferguson indicated, Kyle and
       [McVicker] “didn’t have a good relationship at all.” On that
       particular evening, Kyle received a text message from
       [McVicker] stating that “she needed to get her cats out of
       the house.” Ferguson testified that while Kyle was reluctant
       to pick up her cats when [McVicker] was at his residence,
       the text message she received from [McVicker] suggested
       that he would not be home that evening. Testimony at trial
       demonstrated that Kyle’s reluctance in this regard was well-
       founded. Over the objection of [McVicker], the
       Commonwealth presented testimony regarding a prior
       domestic disturbance between Kyle and [McVicker] in the
       early morning hours of December 1, 2016. On that morning,
       according to the testimony Kyle’s mother, Rhonda Bittner,
       Kyle fled [McVicker’s] residence to a nearby bar after a
       confrontation with [McVicker], telling her mother that
       [McVicker] had fired a shot at her. Kyle called her parents
       from inside the bar seeking help, and when they arrived to
       pick her up, she was “hysterical . . . crying, shaking.”

       As Kyle and Ferguson approached Boswell that evening,
       they decided to stop for a drink at Merchant’s Bar near
       [McVicker’s] residence, but quickly left after the bar owner,
       Matthew Reinbold, indicated that [McVicker] was there. The
       couple decided to quickly drive to [McVicker’s] residence to
       retrieve Kyle’s cats while [McVicker] remained at the bar.
       According to Ferguson, [McVicker’s] residence was a
       roughly ten-minute drive from Merchant’s Bar. Upon
       arriving at the residence, Kyle parked near the rear entrance
       of the house, turned off the vehicle, and went inside

                                   -3-
J-S31033-19


       [McVicker’s] home to retrieve her cats. As Ferguson
       recalled, he remained in the car, playing games on his cell
       phone. Kyle emerged moments later with one of her cats,
       and mentioned to Ferguson that the other had run off and
       hid in the house, prompting her to return inside. Moments
       later, according to Ferguson, Kyle started “screaming at the
       top of her lungs like help me, help.” As a result, Ferguson
       called 911 and waited for Kyle to come out of the house.
       Kyle emerged from the house in a panic and got back into
       the vehicle with Ferguson. As they struggled to get the keys
       into the ignition, [McVicker] fired a shot at the vehicle,
       shattering one of its windows. Ferguson, seated in the
       passenger’s seat, looked out of the driver’s side window and
       saw [McVicker] standing on the porch, with a gun “at [the]
       center mass of his body.” After another shot from
       [McVicker’s] weapon, Kyle went silent, and the car drifted
       into a line of trees and brush near [McVicker’s] residence.
       Ferguson, having determined that Kyle was dead, exited the
       vehicle and fled into the woods.

       [When the officers arrived on the scene, they] located the
       victim’s vehicle resting in a field southwest of [McVicker’s]
       residence with its taillights on and proceeded towards its
       location. As they approached, the officers could see that the
       glass in the driver’s side window was shattered and that
       Britteny Kyle was slumped-over in the driver’s seat.
       According to [PSP Trooper Jeffrey Flowers], the victim was
       motionless and appeared to be deceased, with noticeable
       blood around her neck area. Shortly thereafter, troopers
       discovered Tyrell Ferguson in a dense, swampy field near
       the scene and immediately escorted him to an awaiting
       ambulance. According to Flowers, Ferguson was “very
       disheveled, he had no shoes on, his pant legs [were] muddy,
       and there [was] a large red stain square in the middle of his
       chest.” A medical exam performed on Ferguson would later
       confirm that he suffered a gunshot wound from apparent
       bullet fragments which grazed his chest, abdomen and right
       leg.

       As Trooper Flowers relayed information regarding the crime
       scene back to the PSP barracks, a second vehicle arrived on
       the scene carrying David McVicker, [McVicker’s] father.
       According to [David], [McVicker] had been with his cousin
       Brian McVicker earlier in the evening and had called his
       father to tell him that he was in some trouble and “was going

                                   -4-
J-S31033-19


       off to kill himself.” Testimony from Brian McVicker confirmed
       that on the evening of February 26, 2017, prior to the
       shooting, he and his cousin, Michael McVicker, had been
       drinking with [McVicker] at various local bars. After having
       a few drinks at Merchant’s Bar, Brian and Michael dropped
       [McVicker] off at his residence because [McVicker] had
       stated that Kyle was coming to pick up her cats. When
       Michael and Brian returned to Merchant’s Bar, Brian
       received a call from [McVicker] in which [McVicker] stated
       he had “shot [Kyle’s] car up” and that “he thought he might
       have hit someone because the car drifted down into the
       bottom.”

       PSP troopers at the scene soon received notification that
       [McVicker] had been located in Conemaugh Township and
       was in the custody of Officer Russell Miller, a patrolman with
       the Conemaugh Township Police Department. Officer Miller
       had been on patrol when he received word around 11:15
       p.m. that an assault had occurred earlier . . . in Jenner
       Township, and that the State Police were looking for
       [McVicker]. At 12:15 a.m., he observed [McVicker] turning
       onto Pine Street in Davidsville, PA, and after following the
       car briefly, he stopped the vehicle and placed [McVicker]
       into his custody. When asked by Miller if he had any
       weapons, [McVicker] replied “[n]o, it’s at the house.”

       Trooper Flowers, along with Sergeant Steven Adamczyk of
       the PSP, travelled to Conemaugh Township and arrived to
       find [McVicker] in handcuffs in the back of Officer Miller’s
       police unit. When asked by Trooper Flowers if he was all
       right, [McVicker] indicated that he was. According to
       Flowers, [McVicker] did not appear rattled or disheveled, but
       did have a small spot of blood on his pants. Trooper Flowers
       further inquired as to the whereabouts of [McVicker’s]
       cousin Brian McVicker, and [McVicker] stated that he had
       been with his cousin earlier in the evening but that “he was
       by himself when it had happened.” . . . .

       A forensic investigation was conducted by the PSP Criminal
       Investigation    Unit   at  [McVicker’s]   residence   and
       surrounding property during the early morning hours of
       February 27, 2018 [sic]. Evidence recovered at the scene
       suggested the shooting had occurred at the rear entrance of
       the residence near a small set of wooden stairs leading up
       to the first floor of the home. A set of dark tire tracks

                                   -5-
J-S31033-19


       identified near the steps indicated that the victim’s vehicle
       made a quick acceleration before drifting roughly 179 feet
       to its final resting place in a swampy field southwest of the
       residence. A pile of tempered glass was found approximately
       three feet from the bottom of the steps. Further
       investigation of [Kyle’s] vehicle revealed that the front
       driver’s side window was shattered and investigators
       recovered bullet fragments from the front passenger door
       interior panel. Closer examination of the path travelled by
       the bullet recovered from the passenger door demonstrated
       that the shot fired into the vehicle originated “from an
       elevated position where it would have gone through the
       glass at a downward angle from - again, not 90 degrees to
       the window, but slightly back and outward.” The significant
       amount of tempered glass recovered from inside the
       vehicle, as well as other biological materials, confirmed that
       the bullets were fired from outside of the vehicle on the
       driver’s side.

       The deceased body of the victim, Britteny Kyle, was found
       in the driver’s seat of the vehicle with a large wound to her
       upper chest area, as well as what appeared to be a wound
       from a bullet embedded in the right sleeve of her clothing.
       According to expert testimony from Kevin D. Whaley, M.D.,
       Kyle suffered a fatal gunshot wound from a high-velocity
       rifle round extending from the front part of her left shoulder
       down to the upper part of her chest. As Whaley pointed out,
       the bullet that struck Kyle’s body severed a large artery and
       large vein, as well as her spinal cord, resulting in the victim’s
       instant death.

       Consistent with Whaley’s findings, a search of [McVicker’s]
       residence recovered spent rifle cartridge casings in different
       locations of the home - on a step at the rear entrance of the
       residence, and on a countertop in the kitchen adjacent to
       the rear entrance. Proceeding further into an unfurnished
       bedroom, investigators found a wood stock bolt-action rifle
       (a FFV Sweden .30-06), and upon opening the bolt,
       recovered another spent cartridge casing. . . .

       At trial, [McVicker] admitted to shooting Kyle and Ferguson
       with a high-powered rifle, but pursued a theory of self-
       defense. He testified that on the evening of February 26,
       2017, he fired three shots from the rear entrance of his
       residence at the car containing Kyle and Ferguson with a

                                     -6-
J-S31033-19


          .30-06 bolt-action rifle loaded with three .270 Winchester
          shells from roughly 10 feet away.

          According to [McVicker], he fired the shots in self-defense
          because he believed that Ferguson possessed a gun.
          Following the shooting, [McVicker] left the scene and placed
          calls to his father, his cousin Brian, and a friend, Daniel
          Rhoads. As Rhoads recalled, [McVicker] told him that he
          “might have shot somebody,” and was “going to go kill
          himself.” [McVicker] stated that after stopping briefly to
          discuss the situation with his cousins Brian and Michael, he
          decided to turn himself in. Moments later, he was pulled-
          over by Officer Miller of the Conemaugh Township Police and
          taken into custody.

Trial Court Opinion, filed Feb. 22, 2019, at 4-15.

       The jury found McVicker guilty of third-degree murder, attempted third-

degree murder, and two counts each of aggravated assault, simple assault,

and REAP.2 In July 2018, the trial court sentenced him to 20 to 40 years’

incarceration for the third-degree murder conviction and eight to 16 years’

incarceration for the attempted third-degree murder conviction, to be served

consecutively. The remaining convictions merged for sentencing purposes.

       McVicker filed a post-sentence motion, which the trial court denied.

McVicker filed a timely Notice of Appeal.

       McVicker raises the following issues:

          1. Mr. McVicker’s attempted third-degree murder conviction
          and his 8- to 16-year prison sentence in connection with
          Tyrell Ferguson’s wounds are invalid and unconstitutional
          under state and federal statutory and decisional law because
          there is no such criminal offense as attempted third-degree

____________________________________________


2 The jury found McVicker not guilty of first-degree murder, voluntary
manslaughter, involuntary manslaughter, attempted first-degree murder, and
possession of instrument of crime.

                                           -7-
J-S31033-19


         murder under Pennsylvania state law. U.S. Const. admts. 6,
         8, 14; Pa. Const. art. I, § 8, 9.

         2. The trial court erred by permitting Rhonda Bittner and
         Matt Reinbold to testify to out-of-court statements Brittney
         Kyle made to them on or about December 1, 2016 where
         she accused Mr. McVicker of firing a gun at her during an
         argument they had on or about December 1, 2016. Brittney
         Kyle’s out-of-court statements didn’t trigger the excited
         utterance hearsay exception. The trial court’s error wasn’t
         harmless because it’s reasonably likely the hearsay
         testimony may have affected the jury's verdicts. U.S. Const.
         admts. 6, 8, 14; Pa. Const. art. I, § 8, 9.

McVicker’s Br. at 3. We will address McVicker’s second claim first.

      McVicker claims the trial court abused its discretion when it permitted

Rhonda Bittner and Matt Reinhold to testify to Kyle’s December 2016 hearsay

statements that McVicker fired a gun at her. He argues that the statements

were inadmissible because the Commonwealth did not present “independent

evidence establishing the ‘startling event’”—the firing of the gun at Kyle—had

occurred. McVicker’s Br. at 24. He relies on cases in which the statements

were deemed inadmissible because “the excited utterance itself [was] being

used to prove that an exciting event did, in fact, occur.” Id. at 26 (quoting

Commonwealth v. Barnes, 456 A.2d 1037, 1040 (Pa.Super. 1983) and

Commonwealth v. Keys, 814 A.2d 1256, 1259 (Pa.Super. 2003)).

      During trial Kyle’s mother, Bittner, testified that in December 2016, Kyle

told her, “He shot through the wall at her.” N.T., 5/18/18, at 3.496. When she

made the statement Kyle was “[u]pset, very worked up, upset. She was

hysterical. She was crying, shaking.” Id. at 3.495. The owner of Merchants

Bar, Matthew Reinhold, similarly testified that on that same December night


                                     -8-
J-S31033-19



Kyle told him that, “Jamie pointed a gun at her and fired a round by her head.”

Id. at 3.526. Both witnesses also testified that the relationship between

McVicker and Kyle was ending. Id. at 3.497, 3.501, 3.538. Further, Bittner

testified that when they arrived at McVicker’s residence that evening, Kyle’s

belongings were strewn across the lawn and that Kyle had been slowly moving

things from McVicker’s residence. Id. at 3.497, 3.501.

      McVicker objected to the admission of the statements regarding the gun

shot as inadmissible hearsay. The court admitted the statements, finding they

qualified for the excited utterance exception to the rule precluding the

admission of hearsay statements. The trial court instructed the jury that the

jury could not use the testimony of Bittner or Reinhold as bad character

evidence, but could use it as proof of the history of the case:

         [T]o say to yourself: Jamie McVicker is a bad guy, and so he
         must have committed the crimes that he’s charged with in
         this case. You can’t conclude from that testimony – you can’t
         use it to conclude that he has a bad character; and,
         therefore, he must have committed the crimes here. You are
         absolutely prohibited from using it for that purpose.

         You may use it, if you wish, but you don’t have to, if you
         wish, as proof of the history of the case; what the
         relationship was in the months immediately preceding this
         incident between Jamie McVicker and Britteny Kyle; and you
         may also use it, if you wish, as proof of Jamie McVicker’s
         state of mind towards Britteny Kyle on the night of the
         incident that gave rise to the charges. You may use it for
         those purposes. You cannot use it for the other one.

Id. at 3.520-3.521, 3.539.

      “Hearsay is defined as ‘a statement, other than one made by the

declarant while testifying at trial or hearing, offered in evidence to prove the

                                     -9-
J-S31033-19



truth of the matter asserted.’” Commonwealth v. Cunningham, 805 A.2d

566,   572   (Pa.Super.   2002)   (quoting    Pa.R.Evid.   801(c)).   Hearsay   is

inadmissible “except as provided by [the Rules of Evidence], by other rules

prescribed by the Pennsylvania Supreme Court, or by statute.” Pa.R.Evid. 802.

One exception to the hearsay rule is the excited utterance exception which

provides:

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

Pa.R.Evid. 803(2). To qualify for this exception, the party seeking the

statement’s admission must establish “that [the declarant] had witnessed an

event sufficiently startling and so close in point of time as to render her

reflective thought processes inoperable and . . . that her declarations were a

spontaneous reaction to that startling event.” Commonwealth v. Murray,

83 A.3d 137, 157-58 (Pa. 2009) (quoting Commonwealth v. Sherwood,

982 A.2d 483, 496 (Pa. 2009)) (alteration in original).

       Here, we decline to reach whether admission of the statements was an

abuse of discretion, because we find that, even if the statements were

inadmissible, any error was harmless.

       An error is harmless if

          (1) the error did not prejudice the defendant or the
          prejudice was de minimis; (2) the erroneously admitted
          evidence was merely cumulative of other untainted evidence


                                     - 10 -
J-S31033-19


          which was substantially similar to the erroneously admitted
          evidence; or (3) the properly admitted and uncontradicted
          evidence of guilt was so overwhelming and the prejudicial
          effect of the error was so insignificant by comparison that
          the error could not have contributed to the verdict.

Commonwealth v. Stallworth, 781 A.2d 110, 120 (Pa. 2001) (quoting

Commonwealth v. Robinson, 721 A.2d 344, 350 (Pa. 1999)) (italics

added).   “The   Commonwealth     bears      the   burden   of   establishing   the

harmlessness of the error.” Commonwealth v Laich, 777 A.2d 1057, 1062

(Pa. 2001).

     Third-degree murder is defined as “‘all other kinds of murder,’ i.e., those

committed with malice that are not intentional (first-degree) or committed

during the perpetration of a felony (second-degree).” Commonwealth v.

Packer, 168 A.3d 161, 168 (Pa. 2017). “The elements of third-degree

murder, as developed by case law, are a killing done with legal malice.”

Commonwealth v. Marquez, 980 A.2d 145, 148 (Pa.Super. 2009) (en banc)

(quoting Commonwealth v. MacArthur, 629 A.2d 166, 167–68 (Pa.Super.

1993)). Malice “comprehends not only a particular ill-will, but every case

where there is wickedness of disposition, hardness of heart, cruelty,

recklessness of consequences, and a mind regardless of social duty, although

a particular person may not be intended to be injured.” Packer, 168 A.3d at

168 (quoting Commonwealth v. Drum, 58 Pa. 9, 15 (1868)). “[M]alice may

be inferred from the use of a deadly weapon on a vital part of the victim’s

body.” Commonwealth v. Gooding, 818 A.2d 546, 550 (Pa.Super. 2003)




                                    - 11 -
J-S31033-19



(quoting Commonwealth v. Gonzales, 609 A.2d 1368, 1369 (Pa.Super.

1992)).

      To establish aggravated assault under the applicable subsection the

Commonwealth had to         establish McVicker    “attempt[ed] to    cause   or

intentionally or knowingly cause[d] bodily injury to another with a deadly

weapon.” 18 Pa.C.S.A. § 2702(a)(4).

      McVicker claimed he acted in self-defense. The elements of self-defense

are: “(a) [that the defendant] reasonably believed that he was in imminent

danger of death or serious bodily injury and that it was necessary to use

deadly force against the victim to prevent such harm; (b) that the defendant

was free from fault in provoking the difficulty which culminated in the slaying;

and (c) that the [defendant] did not violate any duty to retreat.”

Commonwealth v. Mouzon, 53 A.3d 738, 740 (Pa. 2012) (quoting

Commonwealth v. Samuel, 590 A.2d 1245, 1247–48 (Pa. 1991))

(alterations in original); 18 Pa.C.S.A. § 505.

      “When a defendant raises the issue of self-defense, the Commonwealth

bears the burden to disprove such a defense beyond a reasonable doubt.”

Commonwealth v. Bullock, 948 A.2d 818, 824 (Pa.Super. 2008) (quoting

Commonwealth v. Emler, 903 A.2d 1273, 1279 (Pa.Super. 2006)). “The

Commonwealth sustains this burden if it establishes at least one of the

following: (1) the accused did not reasonably believe that he was in danger of

death or serious bodily injury; (2) the accused provoked or continued the use

of force; or (3) the accused had a duty to retreat and the retreat was possible

                                     - 12 -
J-S31033-19



with complete safety.” Commonwealth v. Ventura, 975 A.2d 1128, 1143

(Pa.Super. 2009) (citing Commonwealth v. McClendon, 874 A.2d 1223,

1230 (Pa.Super. 2005)). “The Commonwealth need only prove one of these

elements beyond a reasonable doubt to sufficiently disprove a self-defense

claim.” Id. (citing Commonwealth v. Burns, 765 A.2d 1144, 1149

(Pa.Super. 2000)).

      Here, the Commonwealth presented overwhelming evidence that on the

night of the shooting McVicker shot Kyle and Ferguson from his porch while

they were in their car trying to leave the premises. McVicker used a deadly

weapon on a vital part of both Kyle’s and Ferguson’s bodies. There was no

evidence Kyle and Ferguson had any weapon, except McVicker’s claim that he

saw Ferguson with a gun. Further, although McVicker made many calls after

the shooting, he did not tell anyone that he had acted in self-defense or that

he was attacked. Rather, he shot a gun into a car that was attempting to leave

his property. The evidence presented was sufficient to establish third-degree

murder and sufficient to disprove McVicker’s claim of self-defense, as it

disproved that McVicker reasonably believed he was in imminent danger of

death or serious bodily injury and it disproved that he did not have an ability

to retreat, as he could have retreated into his home. Therefore, if the court

erred in admitting statements that McVicker shot a gun at Kyle in December,

any error would be harmless. See Commonwealth v. Green, 76 A.3d 575,

582-83 (Pa.Super. 2013) (concluding harmless error in admission of victim’s

hearsay statement where there was sufficient and compelling evidence of

                                    - 13 -
J-S31033-19



defendant’s guilt besides the hearsay evidence); see also Commonwealth

v. Levanduski, 907 A.2d 3, 22 (Pa.Super. 2006) (en banc) (concluding

admission of victim’s statement was harmless error where there was other

overwhelming evidence of defendant’s guilt).

      McVicker also claims there is no criminal offense in Pennsylvania for

attempted third-degree murder. He argues that the conviction and sentence

for attempted third-degree murder must be vacated, and that we should

remand to the trial court for re-sentencing. The trial court and the

Commonwealth concede that McVicker is entitled to relief on this claim. We

agree.

      McVicker did not object to the jury instruction on attempted murder,

which included an instruction that the jury could find McVicker guilty of

attempt to commit third-degree murder. N.T., 5/23/18, at 6.837, 6.839.

However, he claims that his sentence is illegal because it is for a conviction

for a crime that does not exist. Such a claim cannot be waived. See

Commonwealth v. Batts, 163 A.3d 410, 434 (Pa. 2017) (citation omitted)

(“A challenge to the legality of a particular sentence may be reviewed by any

court on direct appeal; it need not be preserved in the lower courts to be

reviewable and may even be raised by an appellate court sua sponte.”).

      In Pennsylvania, “there simply is no such crime as attempted second or

third degree murder.” Commonwealth v. Geathers, 847 A.2d 730, 734

(Pa.Super. 2004) (quoting Commonwealth v. Williams, 730 A.2d 507, 511

(Pa.Super. 1999)). Courts have reasoned:

                                    - 14 -
J-S31033-19


          A person commits an attempt when, with intent to commit
          a specific crime, he does any act which constitutes a
          substantial step toward the commission of that crime. 18
          Pa.C.S.A. § 901. Murder of the second or third degree occurs
          where the killing of the victim is the unintentional result of
          a criminal act. Thus, an attempt to commit second or third
          degree murder would seem to require proof that a
          defendant intended to perpetrate an unintentional killing—
          which is logically impossible. While a person who only
          intends to commit a felony may be guilty of second degree
          murder if a killing results, and a person who only intends to
          inflict bodily harm may be guilty of third degree murder if a
          killing results; it does not follow that those persons would
          be guilty of attempted murder if a killing did not occur. They
          would not be guilty of attempted murder because they did
          not intend to commit murder—they only intended to commit
          a felony or to commit bodily harm.

Id. (quoting Commonwealth v. Griffin, 456 A.2d 171, 177–178 (Pa.Super.

1983)).

      Here, McVicker was convicted and sentenced for a crime that does not

exist—attempted third-degree murder. We will therefore reverse the

conviction for attempted third-degree murder of Ferguson, vacate the

sentence imposed for it, and remand for re-sentencing.

      Conviction for attempted third-degree murder reversed. Judgment of

sentenced affirmed in part and vacated in part. Case remanded for

resentencing. Jurisdiction relinquished.

Judge Stabile joins the memorandum.

Judge Olson concurs in the result.




                                      - 15 -
J-S31033-19


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/13/19




                          - 16 -
