J-A06001-18


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT
                                                             OF
                                                        PENNSYLVANIA
                             Appellee

                        v.

    PAUL JAWON KENDRICK,

                             Appellant                 No. 86 WDA 2016


        Appeal from the Judgment of Sentence Entered August 24, 2015
              In the Court of Common Pleas of Allegheny County
             Criminal Division at No(s): CP-02-CR-0013583-2014


BEFORE: BENDER, P.J.E., SHOGAN, J., and STRASSBURGER, J.*

MEMORANDUM BY BENDER, P.J.E.:                              FILED MAY 18, 2018

        Appellant, Paul Jawon Kendrick, appeals from the judgment of sentence

of life-without-parole (LWOP) for first-degree murder, and a consecutive

sentence of LWOP for conspiracy to commit first-degree murder. He claims

that the verdict is against the weight of the evidence, and that his sentence

for conspiracy is illegal. After careful review, we vacate Appellant’s sentence

for conspiracy and remand for resentencing, but affirm Appellant’s sentence

for first-degree murder.

        The trial court summarized the facts adduced at trial as follows:

              On July 31, 2014, at approximately 11:45 pm, Antone
        Marshall was playing basketball on the basketball court located in
        North View Heights Housing Project with Maurice Freeman, Tyrea
        Harper, CJ Pac and an individual who [was] only kn[o]w[n] by the
____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
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     name of Manny. At approximately 12:30 am on August 1, 2014,
     Marshall took a break from playing basketball to have a cigarette
     when two light-skinned African American[] males appeared, both
     of whom appeared to be wearing white t-shirts and one of whom
     was wearing shorts and the other sweatpants. Marshall noticed
     that both of these individuals possessed a handgun. These
     individuals asked to play basketball. The individual who played
     basketball against Manny had a fisherman’s hat on and during the
     course of the basketball game, dropped his gun on the basketball
     court. Marshall described this individual as being anywhere from
     five foot nine to approximately six feet tall, saying that everybody
     appeared short to him because he is six foot three and one-half.
     He identified the other individual without the hat as being
     approximately five foot seven. When this basketball game was
     over, Marshall, Tyrea Harper and CJ Pac went on their way down
     to Penfort Street while Maurice Freeman and Manny Harrison went
     to a building on Hazlett Street where Freeman was apparently
     staying. As Marshall approached his residence, he heard a
     number of gunshots[,] but he did not know who had been hit[,]
     or where they had been hit.

           Marshall was interviewed by the police in the early morning
     hours of August 1, 2014, and based upon the information that the
     police had obtained during the course of their investigation, they
     put together a photo array and Marshall identified [Appellant] as
     one of the two individuals who approached them at the basketball
     court and who had weapons on them. Tyrea Harper was playing
     basketball with Marshall and the others when he saw the two light-
     skinned African American males approach, both of whom were
     wearing white tee-shirts. He also saw a gun that was being passed
     between the two of them. They asked to play basketball and they
     played one game against Manny and Manny won.               At the
     conclusion of that game, one of these two individuals said that if
     you were not from Northview then you are going to get hit. He
     then asked [where] Freeman was from and Freeman said he was
     from Arlington. After this discussion everyone left the basketball
     court but left in separate directions since Harper and Marshall
     headed toward Harper’s sister’s house which was on Penfort, while
     Manny and Maurice headed toward Hazlet Street. They then heard
     [a] gunshot and then turned around to see the two light-skinned
     African Americans running away. Marshall was interviewed by the
     police … approximately five days later and was presented with a
     photo array and he identified the shooter as being [Appellant].



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              Roxanne Steiner was living with her sister on Hazlet Street
        in the Northview Heights housing project and although she had
        never personally met [Appellant], she had seen him at least thirty
        times in that housing project. In the late hours of July 31, 2014,
        she went to the 7-11 Store in Downtown Pittsburgh to get some
        food items. When she got back to Northview Heights she heard
        that Freeman had been shot and she went to Allegheny General
        Hospital to see what his condition was. She eventually returned
        at approximately 6:00 am on August 1, 2014. During the course
        of the police investigation, they went to the security office and
        viewed a number of videotapes taken from the surveillance
        cameras[,] which were placed throughout the Northview Heights
        project. The police made copies of these tapes and on August 16,
        2014, showed Steiner the tapes which showed two individuals in
        white t-shirts and she was able to identify one of those individuals
        as [Appellant].

Trial Court Opinion (TCO), 3/8/17, at 3-5.

        The Commonwealth charged Appellant with criminal homicide, 18

Pa.C.S. § 2501(a); conspiracy to commit homicide, 18 Pa.C.S. § 903(a)(1);

and person not to possess a firearm, 18 Pa.C.S. § 6105.           The trial court

granted Appellant’s pre-trial motion to sever the firearm offense, which is not

a subject of the instant appeal.1 Appellant was subsequently tried by a jury,

which returned a verdict of guilty on both counts on May 25, 2015.

Specifically, the jury found Appellant guilty of first-degree murder, 18 Pa.C.S.

§ 2502(a), and conspiracy to commit first-degree murder. On August 4, 2015,

the trial court sentenced Appellant to a mandatory LWOP sentence for first-

degree murder, and a consecutive sentence of LWOP for conspiracy.

        Appellant filed a timely post-sentence motion, in which he challenged

the weight of the evidence, which the trial court considered at a post-sentence

____________________________________________


1   The firearm offense was transferred to CP-02-CR-0006355-2015.

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hearing held on November 18, 2015. Ultimately, however, the court denied

Appellant’s post-sentence motion on December 10, 2015.

      Appellant filed a timely notice of appeal on January 8, 2016, and a

timely, court-ordered Pa.R.A.P. 1925(b) statement on February 12, 2016. The

trial court did not issue its Rule 1925(a) opinion until March 8, 2017.

Appellant now presents the following questions for our review:

         1. Whether the trial court abused its discretion in denying the
            motion for a grant of a new trial when the verdict was
            contrary to the weight of the evidence?

         2. Whether the [LWOP] sentence for criminal conspiracy was
            illegal because it exceeded the statutory limitations?

         3. Whether the sentence for criminal conspiracy was illegal
            based upon double jeopardy concerns when the sentence of
            criminal conspiracy should have merged into the sentence
            of first[-]degree murder, which was based upon a criminal
            conspiracy theory?

Appellant’s Brief at 5.

      Appellant first argues that the trial court abused its discretion in denying

his post-sentence motion for a new trial based on the weight of the evidence.

            The weight of the evidence is exclusively for the finder of
      fact who is free to believe all, part, or none of the evidence and to
      determine the credibility of the witnesses. Commonwealth v.
      Jackson, 506 Pa. 469, 475, 485 A.2d 1102, 1104 (1984). An
      appellate court cannot substitute its judgment for that of the
      finder of fact. Commonwealth v. Pronkoskie, 498 Pa. 245,
      251, 445 A.2d 1203, 1206 (1982). Thus, we can only reverse the
      lower court’s verdict if it is so contrary to the evidence as to shock
      one’s sense of justice. Commonwealth v. Whitney, 511 Pa.
      232, 239, 512 A.2d 1152, 1155 (1986).

Commonwealth v. Hawkins, 701 A.2d 492, 501 (Pa. 1997).

      Furthermore:

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        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 whether the
         verdict is against the weight of the evidence. 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. 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.

         This does not mean that the exercise of discretion by the trial
      court in granting or denying a motion for a new trial based on a
      challenge to the weight of the evidence is unfettered.         In
      describing the limits of a trial court’s discretion, we have
      explained:

         The term “discretion” imports the exercise of judgment,
         wisdom and skill so as to reach a dispassionate conclusion
         within the framework of the law, and is not exercised for the
         purpose of giving effect to the will of the judge. Discretion
         must be exercised on the foundation of reason, as opposed
         to prejudice, personal motivations, caprice or arbitrary
         actions. Discretion is abused where the course pursued
         represents not merely an error of judgment, but where the
         judgment is manifestly unreasonable or where the law is not
         applied or where the record shows that the action is a result
         of partiality, prejudice, bias or ill-will.

Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013) (internal citations

omitted).

      Appellant alleges that inconsistencies in the testimony of Marshall,

Harper, and Steiner, both internally and in relation to each other, demonstrate

that the verdict was “so contrary to the evidence as to shock one’s sense of



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justice.” Hawkins, 701 A.2d at 501. Appellant does not claim that the trial

court acted as “a result of partiality, prejudice, bias or ill-will.” Clay, 64 A.3d

at 1055. Rather, he asserts that the “verdict in this case would have shocked

the conscience of any normal judge who heard the testimony because the

evidence [of Appellant’s guilt] was so tenuous, vague, and uncertain.”

Appellant’s Brief at 23-24. Thus, Appellant essentially argues that the trial

court’s decision to deny his weight-of-the-evidence claim was “manifestly

unreasonable.” Clay, 64 A.3d at 1055. More specifically, Appellant challenges

whether the evidence was fundamentally inconsistent as to his identity as a

participant in the murder of Freeman.

      The Commonwealth acknowledges the inconsistencies highlighted in

Appellant’s brief, but contends that those inconsistencies are not so dramatic

as to “shock one’s sense of justice.” Hawkins, 701 A.2d at 501. Rather, the

Commonwealth argues that the inconsistencies were resolvable by the jury,

and that the jury’s verdict was not shocking since Marshall, Harper, and

Steiner corroborated each other’s identifications of Appellant.

      After reviewing the surveillance video, the testimony of Marshall,

Harper, and Steiner, the trial court’s opinion, and the parties’ briefs, we are

unconvinced by Appellant’s argument that the trial court abused its discretion

by denying his post-sentence, weight-of-the-evidence motion for a new trial.

The jury was free to disregard the observed discrepancies, and accept

testimony that directly demonstrated Appellant’s participation in the murder

of Freeman.      Most importantly, the jury was free to credit Steiner’s

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identification of Appellant as the person seen in the surveillance videos firing

his gun at Freeman. Inconsistencies in the evidence concerning her location

at the time of the shooting, as noted by Appellant, were not substantial issues

in this case, especially since Steiner’s identification of Appellant did not result

from direct observation at the time of the shooting, but from her viewing of

the surveillance video during the course of the subsequent investigation.

Likewise, discrepancies between Harper’s and Marshall’s descriptions of

Appellant’s clothing, and their recollections of whether Appellant or his

companion played the one-on-one basketball game, were tangential matters

largely unrelated to the critical import of their testimony as a whole. Both

men positively identified Appellant as being present and armed at the

basketball court immediately prior to the shooting of Freeman.            Marshall

testified that Appellant or his companion threatened Freeman for being on

their ‘turf.’ Soon thereafter, surveillance video shows Freeman’s murder, from

which Steiner positively identified Appellant as one of the shooters. In these

circumstances, we find no abuse of discretion in the trial court’s determination

that the verdict did not “shock one’s sense of justice.” Hawkins, 701 A.2d at

501. Accordingly, Appellant’s weight-of-the-evidence claim is meritless.

      Next, Appellant contends that his sentence for conspiracy is illegal.

First, he argues that his consecutive LWOP sentence for conspiracy exceeds

the statutory maximum for that offense.         Second, he maintains that his

consecutive LWOP sentence for conspiracy violates double jeopardy principles




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J-A06001-18



and, therefore, it should merge with his LWOP sentence for first-degree

murder.

       “A challenge to the legality of [a] sentence may be raised as a matter

of right, is non-waivable, and may be entertained so long as the reviewing

court has jurisdiction.” Commonwealth v. Robinson, 931 A.2d 15, 19–20

(Pa. Super. 2007). “Issues relating to the legality of a sentence are questions

of law[.] ... Our standard of review over such questions is de novo and our

scope of review is plenary.” Commonwealth v. Wolfe, 106 A.3d 800, 802

(Pa. Super. 2014) (quoting Commonwealth v. Akbar, 91 A.3d 227, 238 (Pa.

Super. 2014)), aff'd, 140 A.3d 651 (Pa. 2016).

      The phrase ‘illegal sentence’ is a term of art in Pennsylvania Courts
      that is applied to three narrow categories of cases. Those
      categories are: “(1) claims that the sentence fell ‘outside of the
      legal parameters prescribed by the applicable statute’; (2) claims
      involving merger/double jeopardy; and (3) claims implicating the
      rule in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348,
      147 L.Ed.2d 435 (2000).”

Commonwealth v. Munday, 78 A.3d 661, 664 (Pa. Super. 2013) (some

internal citation omitted). On their face, Appellant’s illegal-sentencing claims

fall into the first and second categories, respectively.

      As to Appellant’s first illegal-sentencing claim, the Commonwealth

concedes that “the [LWOP] sentence imposed [for Appellant’s] conspiracy

conviction was illegal in that it exceeded the maximum sentence allowable by

law.” Commonwealth’s Brief at 21. We agree.

      [A] person who has been convicted of attempt, solicitation or
      conspiracy to commit murder, … where serious bodily injury
      results[,] may be sentenced to a term of imprisonment which

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       shall be fixed by the court at not more than 40 years. Where
       serious bodily injury does not result, the person may be sentenced
       to a term of imprisonment[,] which shall be fixed by the court at
       not more than 20 years.

18 Pa.C.S. § 1102(c) (emphasis added). An LWOP sentence clearly exceeds

the 40-year maximum sentence prescribed by Section 1102(c). Thus, we are

compelled to vacate Appellant’s LWOP sentence for conspiracy, as it is patently

illegal.

       Nevertheless, we must still address Appellant’s final issue because, if

meritorious, the merger doctrine would effectively prohibit the trial court from

imposing a new sentence on Appellant for his conspiracy conviction.         See

Commonwealth v. Kozrad, 499 A.2d 1096, 1099 (Pa. Super. 1985)

(recognizing that “[w]hen crimes merge for sentencing purposes, the [only]

one for which a defendant may be sentenced is the most serious, i.e., the

crime which carries the greatest maximum penalty”); see also 42 Pa.C.S. §

9765 (“Where crimes merge for sentencing purposes, the court may sentence

the defendant only on the higher graded offense.”). For the following reasons,

we conclude that remand for resentencing is appropriate, because it is clear

that first-degree murder and conspiracy to commit first-degree murder are

not crimes that merge for sentencing purposes.

       Section 9765 [of Title 42] provides:

           § 9765. Merger of sentences

           No crimes shall merge for sentencing purposes unless the
           crimes arise from a single criminal act and all of the
           statutory elements of one offense are included in the
           statutory elements of the other offense. Where crimes



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         merge for sentencing purposes, the court may sentence the
         defendant only on the higher graded offense.

      42 Pa.C.S. § 9765.

      The statute's mandate is clear. It prohibits merger unless two
      distinct facts are present: 1) the crimes arise from a single
      criminal act; and 2) all of the statutory elements of one of the
      offenses are included in the statutory elements of the other.

Commonwealth v. Baldwin, 985 A.2d 830, 833 (Pa. 2009).

      An analysis of the statutory elements of first-degree murder and the

crime of conspiracy demonstrate that it is not the case that “all of the statutory

elements of one of the offenses are included in the statutory elements of the

other.” Id. The statutory elements of first-degree murder are: “(1) a human

being was unlawfully killed; (2) the defendant was responsible for the killing;

and (3) the defendant acted with malice and a specific intent to kill.”

Commonwealth v. Martin, 101 A.3d 706, 718 (Pa. 2014); see also 18

Pa.C.S. §§ 2501(a)-(b), 2502(a). The elements of conspiracy are defined by

Section 903(a):

      (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).




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      As these definitions plainly demonstrate, the crime of first-degree

murder does not require proof of an agreement with another person to commit

first-degree murder, and the crime of conspiracy to commit first-degree

murder does not require proof that a human being was unlawfully killed.

Therefore, each crime requires proof of an element that the other does not;

as such, neither the elements of first-degree murder nor conspiracy to commit

first-degree murder is fully subsumed in the other. See Commonwealth v.

Miller, 364 A.2d 886, 886 (Pa. 1976) (“It has long been the law of this

Commonwealth that the crime of criminal conspiracy does not merge with the

completed offense which was the object of the conspiracy.”). Consequently,

the crimes of first-degree murder and conspiracy to commit first-degree

murder do not merge for sentencing purposes. As such, Appellant’s final claim

lacks merit. Accordingly, we are compelled to remand for resentencing on

Appellant’s   conviction   for   conspiracy    to   commit   first-degree   murder.

However, we otherwise affirm Appellant’s sentence for first-degree murder.

      Judgment of sentence affirmed in part, vacated in part.                 Case

remanded for resentencing. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/18/2018

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