J-S78018-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                        IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                             Appellee

                       v.

JOSEPH MICHAEL ARLOTT

                             Appellant                   No. 1999 WDA 2015


            Appeal from the Judgment of Sentence October 19, 2015
                In the Court of Common Pleas of Beaver County
              Criminal Division at No(s): CP-04-CR-0001126-2012
                            CP-04-CR-0001127-2012


BEFORE: BENDER, P.J.E., OTT, J., and FITZGERALD, J.*

MEMORANDUM BY OTT, J.:                                   FILED MARCH 14, 2017

        Joseph Michael Arlott appeals from the judgment of sentence imposed

on October 19, 2015, in the Court of Common Pleas of Beaver County. At

Docket No. 1126-2012, the jury found Arlott guilty of murder of the second

degree.1 At Docket No. 1127-2012, the jury convicted Arlott of aggravated

assault, burglary, robbery, criminal conspiracy, and related offenses.2 Arlott

was sentenced to life in prison without the possibility of parole and a

consecutive aggregate term 19 to 50 years’ imprisonment on three

____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
    18 Pa.C.S. § 2502(b).
2
   18 Pa.C.S.        §§     2701(a)(1),    3502(a)(1),   3701(a)(1)(i)   and   903,
respectively.
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conspiracy convictions, namely, conspiracy to commit robbery, conspiracy to

commit aggravated assault, and conspiracy to commit burglary. With regard

to his conviction for second-degree murder, Arlott challenges the sufficiency

and weight of the evidence.      Arlott also claims two of the conspiracy

sentences should be vacated as each conspiracy count represented only one

object and agreement. Based upon the following, we affirm the judgment of

sentence at Docket No. 1126-2012, and vacate the judgment of sentence at

Docket No. 1127-2012 and remand for resentencing.

      The trial court has summarized the facts and procedural history of this

case, as follows:

      On August 26, 2015, the impaneled jury returned a unanimous
      verdict finding [Arlott] guilty of seventeen (17) counts on two
      different cases. At Case No. 1126 of 2012, the jury found
      [Arlott] guilty of Murder of the Second Degree (Felony Murder).
      At Case No. 1127 of 2012, the jury found [Arlott] guilty of (1)
      Aggravated Assault, (2) Burglary, (3) Robbery, (4) Criminal
      Conspiracy to Commit Aggravated Assault, (5) Criminal
      Conspiracy to Commit Burglary, (6) Criminal Conspiracy to
      Commit Robbery, (7) Aggravated Assault with a Deadly Weapon,
      (8) Criminal Conspiracy to Commit Aggravated Assault with a
      Deadly Weapon, (9) Theft by Unlawful Taking, (10) Criminal
      Conspiracy to Commit Theft by Unlawful Taking, (11) Unlawful
      Restraint, (12) Criminal Conspiracy to Commit Unlawful
      Restraint, (13) Simple Assault, (14) False Imprisonment, (15)
      Criminal Conspiracy to Commit Simple Assault, and (16) Criminal
      Conspiracy to Commit False Imprisonment. On the first case,
      [Arlott] was sentenced on October 19, 2015 to life in prison
      without the possibility of parole. On the second case, [Arlott]
      received three (3) separate sentences for Criminal Conspiracy to
      Commit Robbery, Criminal Conspiracy to Commit Aggravated
      Assault and Criminal Conspiracy to Commit Burglary, each to be
      served consecutively. The aggregate sentence for the three (3)
      convictions required [Arlott] to undergo imprisonment for not
      less than nineteen (19) years, nor more than fifty (50) years,

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     each to be served consecutively to the life imprisonment
     sentence at Case No. 1126 of 2012.1

        _____________________________________
        1
         Specifically, for the conviction of Criminal Conspiracy to
        Commit Robbery, [Arlott] was sentenced to undergo
        imprisonment in a State Penal or Correctional Institution
        or Facility for not less than 102 months nor more than
        240 months, for the conviction of Criminal Conspiracy to
        Commit Aggravated assault, [Arlott] was sentenced to
        undergo imprisonment for not less than 84 months nor
        more than 240 months; and for the conviction of Criminal
        Conspiracy to Commit Burglary, [Arlott] was sentenced to
        undergo imprisonment for not less than 42 months nor
        more than 120 months; each sentence was required to be
        served consecutively to each other.
        _______________________________________

     Following the sentencing, [Arlott] filed a Post-Sentence Motion
     on October 26, 2015, requesting Judgment of Acquittal to be
     entered on the Second Degree Murder charge and requesting the
     sentences for the Conspiracy charges to be vacated. This Court
     denied that Motion on October 27, 2015. [Arlott] then filed a
     Motion to Allow Filing of Notice of Appeal Nunc Pro Tunc, which
     was granted on December 14, 2015. [Arlott] then filed this direct
     appeal to the Superior Court of Pennsylvania.

                                   ****

     At trial, the jury heard testimony from multiple medical
     professionals regarding the cause of the victim’s (Daniel J.
     Santia) death. After being tortured and beaten by [Arlott] and
     Co-Defendant [Beau W. Chermer] during a home invasion, the
     eighty-one (81) year old victim suffered a traumatic brain injury.
     The victim was found the day after the attack and was rushed to
     the hospital. Testimony provided that the victim suffered from a
     pre-existing heart condition, requiring him to take Coumadin to
     prevent heart attacks and blood clots. Due to the severe brain
     injury, the treating physicians suspended the victim’s normal
     medication and briefly took him off of the Coumadin to help treat
     the brain trauma. Testimony provided by Doctor Christina Toevs,
     the Medical Director of the Trauma Intensive Care Unit of
     Allegheny General Hospital, explained that it was customary to

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      stop prescribing Coumadin for thirty (30) days following severe
      brain injuries in patients. The victim ultimately died twenty-one
      (21) days after the brutal attack.

      The Forensic Pathologist on the case, Doctor James Smith,
      determined the cause of death to be from acute myocardial
      infarction, as a direct result of the trauma that had occurred to
      the victim’s brain twenty-one (21) days previously. While all
      parties agreed that the victim’s pre-existing condition played a
      role in his death, experts disagreed that the brain trauma was
      the underlying cause of the victim’s death. Commonwealth
      witnesses and experts all provided that the brain injury is what
      placed the victim in the hospital and what eventually caused his
      death. Doctor Smith explicitly stated that the brain trauma was
      the direct cause of the victim’s death. Defense Expert, Doctor
      Cyril Wecht, on the other hand, testified that it was his opinion
      that the victim’s death was not the result of the brain trauma,
      and that he believed the evidence showed that the brain injury
      had mostly healed and played no role in the victim's death.

      The jury in this case, acting as the fact-finder, deliberated for
      several hours before coming to a unanimous verdict.

Trial Court Opinion, 1/28/2016, at 1-2, 3-5.

      Arlott challenges the sufficiency and weight of the evidence to sustain

his   conviction   for   second   degree     murder,     contending   that   the

Commonwealth failed to present sufficient evidence as to causation of death.

Specifically, he argues the victim had survived the injuries sustained in the

home invasion attack and “had been stabilized and released from trauma

treatment at the time of his death.        [The victim] had a long history of

coronary disease and died of a heart attack. The Commonwealth’s evidence

fails to establish the causal connection required to sustain the conviction of

murder.” Arlott’s Brief at 12.

      We first address Arlott’s sufficiency challenge.

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     The standard of review for claims of insufficient evidence is well-
     settled. With respect to such claims, we consider the evidence in
     the light most favorable to the Commonwealth as verdict winner.
     In that light, we decide if the evidence and all reasonable
     inferences from that evidence are sufficient to establish the
     elements of the offense beyond a reasonable doubt.

Commonwealth v. Thur, 906 A.2d 555, 568-69 (Pa. Super. 2006) (citation

omitted).

     The Crimes Code defines murder of the second degree as follows:

     (b) Murder of the second degree.--A criminal homicide
     constitutes murder of the second degree when it is committed
     while defendant was engaged as a principal or an accomplice in
     the perpetration of a felony.

18 Pa.C.S. § 2502(b).

     Arlott’s claim of insufficiency is a challenge to causation.

     To establish criminal causation, the Commonwealth must prove
     that the defendant's conduct was so directly and substantially
     linked to the actual result as to give rise to the imposition of
     criminal liability. Commonwealth v. Long, 425 Pa. Super. 170,
     624 A.2d 200, 203-204 (1993), appeal denied, 535 Pa. 170, 633
     A.2d 150 (1993) (citing Commonwealth v. Rementer, 410 Pa.
     Super. 9, 598 A.2d 1300, 1304 (1991), appeal denied, 533 Pa.
     599, 617 A.2d 1273 (1992)).

     In Rementer, we set forth a two-part test for determining
     criminal causation. First, the defendant's conduct must be an
     antecedent, but for which the result in question would not have
     occurred. Rementer, 598 A.2d 1305; 18 Pa.C.S.A. § 303(a)(1).
     A victim's death cannot be entirely attributable to other factors;
     rather, there must exist a “causal connection between the
     conduct and the result of conduct; and causal connection
     requires something more than mere coincidence as to time and
     place.” Rementer, 598 A.2d at 1305, n. 3 (quoting LaFave and
     Scott, Substantive Criminal Law, Vol. 1, Ch. 3., at 391–392
     (1986)). Second, the results of the defendant's actions cannot
     be so extraordinarily remote or attenuated that it would be


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       unfair to hold the defendant criminally responsible. Rementer,
       598 A.2d at 1305.


       As to the first part of the test, the defendant's conduct need not
       be the only cause of the victim's death in order to establish a
       causal connection. Rementer, 598 A.2d at 1305. “Criminal
       responsibility may be properly assessed against an individual
       whose conduct was a direct and substantial factor in producing
       the death even though other factors combined with that conduct
       to achieve the result.” Long, 624 A.2d at 203 (citing
       Commonwealth v. Skufca, 457 Pa. 124, 321 A.2d 889 (1974),
       appeal dismissed, 419 U.S. 1028, 95 S.Ct. 510, 42 L.Ed.2d 304
       (1974)). The second part of the test is satisfied when the
       victim's death is the natural or foreseeable consequence of the
       defendant's actions. Id. (citing Rementer and Commonwealth
       v. Pacquette, 451 Pa. 250, 301 A.2d 837 (1973)). “Where the
       fatal result was an unnatural or obscure consequence of the
       defendant's actions, justice would prevent us from allowing the
       result to have an impact upon a finding of the defendant's guilt.”
       Id. at 204, 624 A.2d 200 (citing Rementer, 598 A.2d at 1306-
       1307).

Commonwealth v. Nunn, 947 A.2d 756, 760 (Pa. Super. 2008).

       There is no dispute the victim suffered from medical problems prior to

the assault, including arthrosclerosis, here, the near total occlusion of three

coronary arteries. While the victim’s medical problems were predominantly

chronic, the autopsy discovered a fresh blood clot that had completely

occluded one of the arteries, causing a myocardial infarction,3 which proved

to be the mechanism of death.

____________________________________________


3
   Myocardial infarction is the technical name for a heart attack. The
Cleveland Clinic, Center for Continuing Education, states: “Myocardial
infarction occurs when myocardial ischemia, a diminished blood supply to
the heart, exceeds a critical threshold and overwhelms myocardial cellular
(Footnote Continued Next Page)


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      It is also beyond dispute that the victim suffered a severe beating in

the course of the home invasion by Arlott and co-defendant Chermer.                 Of

primary    import      to   this   appeal,   the   victim   suffered   a   subarachnoid

hemorrhage – bleeding on the brain. In order to treat this potentially fatal

injury, the doctors had to stop the Coumadin regimen the victim had been

on to treat his severe heart condition.            Coumadin is a blood thinner that

helps prevent the formation of blood clots. Essentially, the doctors had to

stop the bleeding on the brain and could only do so by allowing the blood to

clot naturally at the site of the brain injury. However, this course of action

increased the risk of the formation of other blood clots.              As noted above,

another blood clot did form, occluded an artery, and killed the victim. The

central question of the trial was whether the formation of the fatal blood clot

was linked to the beating or was the formation of the blood clot 21 days

between the assault and the victim’s demise too attenuated. The resolution

of this question rested upon the testimonial evidence of Dr. James Smith,

the forensic pathologist who conducted the victim’s autopsy, and Dr. Cyril

Wecht, the forensic pathologist who reviewed the matter on behalf of the

defendants. Dr. Smith testified the assault and death were linked, while Dr.

Wecht opined the victim had essentially recovered from the beating,

rendering the assault and myocardial infarction unrelated.
                       _______________________
(Footnote Continued)

repair mechanisms designed to maintain normal operating function and
homeostasis.” See www.clevelandclinicmeded.com



                                             -7-
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     Our review of the certified record leads to the conclusion that Dr.

Smith’s testimony provided ample basis to support Arlott’s second-degree

murder conviction. Dr. Smith’s direct testimony spans 53 pages of the notes

of testimony. See N.T. Trial, 8/21/2015, at 127-180. Dr. Smith summed

up his opinion in the following manner:

     A: Okay. That [the victim] “died as the result of an acute
     myocardial infarct, secondary to a recent thrombosis of the
     coronary artery vein graft. The infarct was imposed in a heart
     already severely damaged from coronary artery disease and in a
     state of chronic congestive failure. The circumstances relating to
     his death were directly related to a severe beating he received
     some 20 days prior to his death.”

     The manner of death is homicide.

     Q: Now you’ve talked about both of those things that we’ve been
     talking about throughout your testimony –

     A: Um-hum.

     Q: - the heart condition and the severe beating that he took.
     You said they are directly connected. Why do you say there in
     your opinion that they are directly connected?

     A: The, well, they’re, a lot of the features we’ve already, we
     have already talked about and discussed there are the business,
     most obvious being the business about the coagulation and the
     use of the anticoagulant there.     The anticoagulant therapy
     having to be discontinued and this leading to the thrombosis in
     the vein graft followed by an acute myocardial infarct and his
     death, okay.

     There, of course, as we’ve mentioned or as we’ve touched upon
     in the other testimony there’s the fact that his stasis, I mean his
     being unable to move about and so forth also contributed to this.

     His congestive heart failure also contributed to this.




                                    -8-
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     Again I don’t like to prolong it, but there was, the incident where
     he had to be intubated was at least in part related to a condition
     from his being placed in a, the position that he was for over 12
     hours where he was bound with his hands tied behind his back.
     His legs were bound. He was, he was in one position and
     couldn’t get out of it for many, many hours.

     This leads to, especially with heart failure, leads to stasis, that
     means fluids going to the lower part of the body. It causes, and
     this is a direct cause of, a direct result of this is muscle necrosis,
     and one of the, one of, the primary protein in muscles, protein
     called myoglobulin, it’s very damaging to the kidneys. That was
     secreted. His kidneys were damaged.

     The kidney, because the kidneys were damaged, why he retains
     fluid, and because he retains fluid, why he goes into severe
     congestive heart failure and has to be intubated.

     Probably that episode also helped to get, give him the
     pneumonia that he got on May 7th and all of those things sort of
     tie together.

     He was a man who had been living with this, these coronary
     artery bypasses for 34 years. He had been doing well, and now
     with the intervention of the trauma that he suffered why this is,
     this has, I feel, is part of, all a part and parcel of a cause, a
     cause of his death.

     Q: And do you see any break in that chain from the time that he
     had the, was the victim of the assault up until the time of his
     death?

     A: No, I don’t.

     Q: And also from the time that you review those reports on April
     30th until the time of his death do you see any indication in those
     records or in your exams that he ever totally recovered or fully
     recovered –

     A: Fully recovered?

     Q: - from those injuries?




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      A: No, definitely not. I don’t feel he had ever fully recovered,
      no.

N.T. Trial, 8/21/2015, at 176-180.

      In summary, the testimony of Dr. Smith drew an unbroken chain of

events from the beating to death, and the jury was free to believe his

testimony   as   to   causation.     As   such,   Arlott’s   argument   regarding

insufficiency of the evidence fails and he is not entitled to relief on this issue.

      Nor do we find merit in the argument of Arlott that the second-degree

murder conviction was against the weight of the evidence.

      The law pertaining to weight of the evidence claims is well-settled.

      A motion for a new trial based on a claim that the verdict is
      against the weight of the evidence is addressed to the discretion
      of the trial court. Commonwealth v. Widmer, 560 Pa. 308,
      319, 744 A.2d 745, 751-52 (2000); Commonwealth v. Brown,
      538 Pa. 410, 435, 648 A.2d 1177, 1189 (1994). A new trial
      should not be granted because of a mere conflict in the
      testimony or because the judge on the same facts would have
      arrived at a different conclusion. Widmer, 560 A.2d at 319-20,
      744 A.2d at 752. Rather, “the role of the trial judge is to
      determine that ‘notwithstanding all the facts, certain facts are so
      clearly of greater weight that to ignore them or to give them
      equal weight with all the facts is to deny justice.’” Id. at 320,
      744 A.2d at 752 (citation omitted). It has often been stated that
      “a new trial should be awarded when the jury’s verdict is so
      contrary to the evidence as to shock one’s sense of justice and
      the award of a new trial is imperative so that right may be given
      another opportunity to prevail.” Brown, 538 Pa. at 435, 648
      A.2d at 1189.

      An appellate court’s standard of review when presented with a
      weight of the evidence claim is distinct from the standard of
      review applied by the trial court:

          Appellate review of a weight claim is a review of the
          exercise of discretion, not of the underlying question of

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J-S78018-16


            whether the verdict is against the weight of the evidence.
            Brown, 648 A.2d at 1189. Because the trial judge has
            had the opportunity to hear and see the evidence
            presented, an appellate court will give the gravest
            consideration to the findings and reasons advanced by
            the trial judge when reviewing a trial court’s
            determination that the verdict is against the weight of the
            evidence. Commonwealth v. Farquharson, 467 Pa. 50,
            354 A.2d 545 (Pa. 1976). One of the least assailable
            reasons for granting or denying a new trial is the lower
            court's conviction that the verdict was or was not against
            the weight of the evidence and that a new trial should be
            granted in the interest of justice.

         Widmer, 560 Pa. at 321-22, 744 A.2d at 753 (emphasis added).

Commonwealth v. Clay, 64 A.3d 1049, 1054-55 (Pa. 2013).

         Here, the trial court opined:   “The jury had the opportunity during

deliberations to weigh the credibility of all the witnesses and evidence

presented at trial and determined which evidence it found most compelling.”

Trial Court Opinion, 1/28/2016, at 5. The jury listened to the experts for

both the Commonwealth and defense and chose to believe Dr. Smith. The

jury, as factfinder, was entitled to believe all, some of none of Dr. Smith’s

testimony. See Commonwealth v. Sloan, 67 A.3d 808, 814 (Pa. Super.

2013). The trial court concluded that “[t]he verdict here definitely does not

shock one’s sense of justice.” Id. Moreover, Arlott presents no argument to

demonstrate that the trial court abused its discretion in rejecting his weight

claim, and we discern none on this record. Therefore, Arlott’s weight claim

fails.




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     Lastly, Arlott contends the consecutive sentences for conspiracy to

commit aggravated assault and conspiracy to commit burglary should be

vacated as each conspiracy count represented only one object and

agreement.     The trial court agreed with Arlott’s position, and the

Commonwealth is in agreement with the trial court.

     Specifically, Arlott received an aggregate sentence of 19 – 50 years’

incarceration for conspiracy to commit robbery (8½ to 20 years), conspiracy

to commit aggravated assault (7 to 20 years) and conspiracy to commit

burglary (3½ to 10 years). However, 18 Pa.C.S.§ 903(c) states:

     If a person conspired to commit a number of crimes, he is guilty
     of one conspiracy so long as such multiple crimes are the object
     of the same agreement or continuous conspiratorial relationship.

18 Pa.C.S. § 903(c).

     The trial court reasoned as follows:

     To determine if one or multiple conspiracies have been
     established, the Court should apply a totality of the
     circumstances test and consider the following factors:

         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.

     Com[monwealth]. v. Davis, 704 A.2d 650, 654 (Pa. Super.
     1997). This test has been consistently followed by the Superior
     Court and adopted as the proper test by the Supreme Court of
     Pennsylvania. See e.g. Com[monwealth] v. Andrews, 768
     A.2d 309, 334 (Pa. 2001); see also Com[monwealth] v.
     Barnes, 871 A.2d 812, 820 (Pa. Super. 2005).

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      Noting the applicable test to apply, this Court finds it would be
      proper to resentence [Arlott] at Case No. 1127 of 2012, and
      sentence [Arlott] according to one (1) conspiracy count.
      Applying the test to the facts at hand, this Court holds the
      evidence established one conspiracy as the crimes committed
      were all the object of a single “continuous conspiratorial
      relationship.” [Arlott’s] sentence should reflect as much.

Trial Court Opinion, 1/28/2016, at 6.

      Our review of the certified record confirms the trial court’s analysis.

Accordingly, Arlott is properly subject to a single sentence for these

conspiracy charges. Therefore, we vacate the sentence at Docket No, 1127-

2012 and we remand for resentencing.

      Judgment of sentence at Docket No. 1126-2012, regarding murder in

the second degree is affirmed. Judgment of sentence at Docket No. 1127-

2012 is vacated as to Arlott’s aggregate sentence on the charges of

conspiracy to commit robbery, conspiracy to commit aggravated assault, and

conspiracy to commit burglary, and remanded for resentencing. Jurisdiction

relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/14/2017




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