J-S07007-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    SHAWN A. STEWART                           :
                                               :
                       Appellant               :   No. 1376 MDA 2018

               Appeal from the PCRA Order Entered July 27, 2018
      In the Court of Common Pleas of Dauphin County Criminal Division at
                        No(s): CP-22-CR-0005521-2014


BEFORE:       OLSON, J., McLAUGHLIN, J., and PELLEGRINI*, J.

MEMORANDUM BY OLSON, J.:                                    FILED JUNE 11, 2019

        Appellant, Shawn A. Stewart, appeals from the order entered on July

27, 2018, dismissing his first petition filed pursuant to the Post Conviction

Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. Although we leave Appellant’s

convictions undisturbed, we vacate the punishments imposed as part of

Appellant’s judgment of sentence and remand for resentencing consistent with

this memorandum.

        On direct appeal, we briefly summarized the facts of this case as follows:

        [I]n the two years leading up to early January 2014, Appellant and
        [S.M.1] were engaged in a “friends with benefits” relationship. As
        of January 2014, [S.M] lived in a Middletown, Pennsylvania
        townhome with her 13-year old twin sons. In the two months
        leading up to January 6, 2014, [S.M.’s] father [(“Father”)] lived
        with [S.M.] and her sons after moving to Middletown from Puerto
        Rico.

____________________________________________


1   We use the victim’s initials to protect her identity.
____________________________________
* Retired Senior Judge assigned to the Superior Court.
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       On the morning of Monday, January 6, 2014, [S.M.] was at work
       and her sons were at school when [Father] heard a knock on the
       front door of the townhome. He opened the door to find two males
       and one female who asked for [S.M.]. When [Father] explained
       she was not there, the three entered the home uninvited. One
       intruder put a gun to [Father’s] chest, ordered him to the floor,
       zip-tied his wrists behind him, and placed an item over his head.
       The other two intruders went upstairs and ransacked [S.M.’s]
       bedroom and [Father’s] bedroom before leaving the home with a
       small blue suitcase belonging to [Father].

       [Father] was able to leave the home and summon assistance from
       a neighbor who called the police. The police, in turn, called [S.M.]
       who returned to the home. In the course of discussions with the
       police, [S.M.] explained that she had fabricated a story—playing
       to Appellant's perpetual interest in money—telling Appellant she
       was traveling to Puerto Rico over the January 3-5 weekend to
       conduct business for her father and she was returning to
       Middletown with $87,000 in a locked bag.

       Following a police investigation, Appellant was arrested and
       charged with burglary, robbery, conspiracy and other crimes.
       Following trial, a jury found Appellant guilty of all ten counts
       against him.[2] On August 3, 2015, the trial court sentenced
       Appellant to consecutive terms of imprisonment totaling not less
       than 28 years nor more than 56 years in a state correctional
       institution, plus fines totaling $4,000.[00.] Each of the sentences
       fell within the standard range for the crime committed.

Commonwealth v. Stewart, 2016 WL 5266553, at *1 (Pa. Super. 2016)

(unpublished memorandum).            This Court affirmed Appellant’s judgment of

sentence in an unpublished memorandum on July 25, 2016. Appellant did not

file a petition for allowance of appeal with our Supreme Court.


____________________________________________


2Appellant was convicted of robbery, conspiracy to commit robbery, burglary,
conspiracy to commit burglary, conspiracy to commit unlawful restraint,
conspiracy to commit false imprisonment, recklessly endangering another
person, simple assault, theft by unlawful taking, and criminal use of
communication facility.

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       On August 22, 2017, Appellant filed a timely, counseled PCRA petition.

On September 5, 2017, at the PCRA court’s direction, counsel for Appellant

filed an amended PCRA petition. On June 29, 2018, the PCRA court issued

notice pursuant to Pa.R.Crim.P. 907 of its intent to dismiss the PCRA petition,

along with a memorandum opinion setting forth its reasons for denying

Appellant relief. On July 27, 2018, the PCRA court filed an order dismissing

Appellant’s PCRA petition. This appeal resulted.3

       On appeal, Appellant presents the following issues for our review:

       I.     Whether the PCRA court committed reversible error by
              dismissing [Appellant’s] PCRA claim that trial counsel was
              ineffective for failing to object to and/or request any
              remedial measures following the prejudicial closing
              argument by the Commonwealth, which included
              misrepresentation of testimony, misleading inferences[,]
              and arguing facts not in evidence?

       II.    Whether the PCRA court committed reversible error by
              dismissing [Appellant’s] PCRA claim that trial counsel was
              ineffective for failing to object to and/or request an
              appropriate cautionary instruction when Detective [Robert]
              Appleby improperly offered his personal opinion as to the
              guilt of [Appellant] and that he was observed in one of the
              vehicles?

       III.   Whether the PCRA court committed reversible error by
              dismissing [Appellant’s] PCRA claim that trial counsel was
              ineffective for failing to investigate and call defense
              witnesses Maritza Melendez and Rickie Hairston at trial?
____________________________________________


3  Appellant filed a notice of appeal on August 16, 2018. The PCRA court
directed Appellant to file a concise statement of errors complained of on appeal
pursuant to Pa.R.A.P. 1925(b). Appellant complied timely. On September 14,
2018, the PCRA court filed an opinion pursuant to Pa.R.A.P. 1925(a) relying
upon its earlier June 29, 2018 decision for its rationale in denying Appellant
relief.

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     IV.    Whether the PCRA court committed reversible error by
            dismissing [Appellant’s] PCRA claim that trial counsel was
            ineffective for failing to request a [jury] instruction that the
            identification testimony of the complainant must be received
            with caution where he was unable to identify and/or observe
            his assailant[?]

     V.     Whether the PCRA court committed reversible error by
            dismissing [Appellant’s] PCRA claim that trial counsel was
            ineffective for failing to use available impeachment evidence
            derived from the police interrogation of [S.M.]?

     VI.    Whether the PCRA court committed reversible error by
            dismissing [Appellant’s] PCRA claim that trial counsel and/or
            post-sentence counsel were ineffective for failing to object
            to the [trial] court’s application of erroneous sentencing
            guidelines?

     VII.   Whether the PCRA court committed reversible error by
            dismissing [Appellant’s] PCRA claim that trial counsel and/or
            post-sentence motion counsel were ineffective for failing to
            object to the [trial] court’s sentencing of multiple inchoate
            crimes of conspiracy, where the evidence revealed that
            those conspiracies were part of the same agreement or
            continuous conspiratorial relationship?

     VIII. Whether the PCRA court committed reversible error by
           dismissing [Appellant’s] PCRA claim that trial counsel and/or
           post-sentence motion counsel were ineffective for failing to
           object to improper sentencing factors, namely [Appellant]
           maintaining his innocence as a lack of acceptance of
           responsibility and lack of remorse?

     IX.    Whether the PCRA court committed reversible error by
            dismissing [Appellant’s] PCRA claim that trial counsel was
            ineffective for standing silent and failing to advocate
            whatsoever on behalf of [Appellant] at sentencing,
            amounting to a complete abandonment of counsel?

     X.     Whether the PCRA court abused its discretion by denying an
            evidentiary hearing where [Appellant] raised substantive
            and material issues of fact regarding trial counsel’s


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              ineffectiveness that required the need to determine the
              basis for trial counsel’s actions?4

Appellant’s Brief at 4-6 (complete capitalization omitted).

       Appellant’s first nine issues challenge trial counsel’s effectiveness. Our

standard of review is as follows:

       We must determine whether the PCRA court's ruling is supported
       by the record and free of legal error. In examining [] claim[s] of
       counsel ineffectiveness, we apply the following principles:

              It is well-established that counsel is presumed
              effective, and to rebut that presumption, the PCRA
              petitioner     must    demonstrate      that    counsel's
              performance was deficient and that such deficiency
              prejudiced him. To prevail on an ineffectiveness claim,
              the petitioner has the burden to prove that (1) the
              underlying substantive claim has arguable merit; (2)
              counsel whose effectiveness is being challenged did
              not have a reasonable basis for his or her actions or
              failure to act; and (3) the petitioner suffered prejudice
              as a result of counsel's deficient performance. The
              failure to satisfy any one of the prongs will cause the
              entire claim to fail.

Commonwealth v. Pou, 201 A.3d 735, 738–739 (Pa. Super. 2018) (citation

omitted).

       On the first issue we examine, Appellant claims that trial counsel was

ineffective for failing to object to the Commonwealth’s closing argument or to

request appropriate curative jury instructions.       Appellant’s Brief at 17-22.

Appellant complains that the Commonwealth’s “closing argument was riddled

with falsities.”   Id. at 20.     Appellant contends that the Commonwealth, in


____________________________________________


4For ease of discussion and disposition, we have reordered Appellant’s issues
as presented.

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closing, suggested that Appellant was the individual who held Father at

gunpoint, despite the Father’s testimony that he did not see who was holding

the gun. Id. Appellant further maintains that “the prosecutor also argued

facts not in evidence such as that [Appellant] was the ‘ringleader,’ ‘this was

his idea,’ and that historical cell[ular] [tele]phone data placed [Appellant’s]

cell[ular] [tele]phone at the address at the approximate time of the home

invasion.” Id.

      This Court has held:

      It is axiomatic that during closing arguments the prosecution is
      limited to making comments based upon the evidence and fair
      deductions and inferences therefrom. Indeed, given the critical
      role that the Commonwealth plays in the administration of justice,
      a prosecutor has been historically prohibited from expressing a
      personal belief regarding a defendant's guilt or innocence or the
      veracity of the defendant or the credibility of his witnesses.

      However, because trials are necessarily adversarial proceedings,
      prosecutors are entitled to present their arguments with
      reasonable latitude. Moreover, it is well settled that defendants
      are entitled to a fair trial, not a perfect one. Thus, a prosecutor's
      remarks do not constitute reversible error unless their
      unavoidable effect was to prejudice the jury, forming in their
      minds fixed bias and hostility toward the defendant so that they
      could not weigh the evidence objectively and render a true verdict.

Commonwealth v. Ligon, 2019 WL 1109515, at *3 (Pa. Super. 2019)

(internal citations, quotations, and brackets omitted).

      Here, the PCRA court determined that there was no merit to Appellant’s

prosecutorial misconduct claim regarding the Commonwealth’s closing

arguments, opining that “[t]he jury heard ample evidence which supported

the   Commonwealth’s     [closing]   arguments[.]”        PCRA   Court   Opinion,


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6/29/2018, at 8. The PCRA court noted that the jury heard evidence that S.M.

told Appellant about a fictitious money stash held inside the residence at issue.

Id. The Commonwealth presented evidence that Appellant questioned S.M.

about who would be at the house at the time of the crimes and said that he

was “going to get this money.” Id. As such, the trial court determined that

the evidence showed that the home invasion was Appellant’s idea.             Id.

Further, Father testified that one of the men involved held him at gunpoint.

Id.   The Commonwealth also presented Appellant’s cellular telephone data

indicating he was in close proximity to the crimes. Id. Upon our review of

the certified record, we agree with the PCRA court that the Commonwealth’s

closing argument was fairly based upon the evidence presented at trial.

Moreover, the trial court instructed the jury that “[t]he speeches of counsel

are not part of the evidence, and [the jury] should not consider them as such.”

N.T., 6/10/2015, at 192. “It is well settled that the jury is presumed to follow

the trial court's instructions.” Commonwealth v. Vucich, 194 A.3d 1103,

1113 (Pa. Super. 2018) (citation omitted). For all of the foregoing reasons,

the first issue lacks merit.

      Next, Appellant argues that trial counsel was ineffective for failing to

object or request a cautionary jury instruction when Detective Robert Appleby

offered his personal opinion as to Appellant’s guilt. Appellant’s Brief at 22-24.

Appellant points to an exchange at trial wherein Detective Appleby testified

about surveillance video showing three vehicles circling the residence at issue

prior to the crimes.       Detective Appleby testified that he believed that

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Appellant was in one of those vehicles. Id. at 23-24. Appellant argues that

“[t]here was no evidence elicited at trial, from any source that [Appellant] was

one of the individuals in the aforementioned vehicles[”] and that Detective

Appleby’s “opinion was tantamount to a declaration of his professional opinion

that [Appellant] was guilty as charged.” Id. at 24.

      On this claim, the PCRA court opined that this Court “concluded in a

nearly identical claim on direct appeal, Detective Appleby properly testified to

the information gathered during his investigation and presented his conclusion

based upon his experience as a police officer, which testimony the jury was

free to accept or reject.” PCRA Court Opinion, 6/29/2018, at 10. As such,

the PCRA court determined that the issue was previously litigated on direct

appeal and that Appellant was merely re-labeling it and presenting it as a

revised theory of relief in the PCRA setting. Id. at 9.

      As a general rule, in order to be eligible for relief under the PCRA, the

petitioner must plead and prove by a preponderance of the evidence that the

allegation of error has not been previously litigated.           42 Pa.C.S.A.

§ 9543(a)(3). An issue has been previously litigated if “the highest appellate

court in which the petitioner could have had review as a matter of right has

ruled on the merits of the issue[.]” 42 Pa.C.S.A. § 9544(a)(2). However, our

Supreme Court has also determined:

      Collateral claims of trial counsel ineffectiveness deriving from an
      underlying claim of error that was litigated on direct appeal cannot
      automatically be dismissed as “previously litigated.” Rather, Sixth
      Amendment claims challenging counsel's conduct at trial are


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      analytically distinct from the foregone claim of trial court error
      from which they often derive, and must be analyzed as such.

Commonwealth v. Puksar, 951 A.2d 267, 274 (Pa. 2008) (citations

omitted).

      On direct appeal, the trial court determined that the detective’s belief

that Appellant was in one of the three vehicles was a credibility determination

for the jury to decide. We agreed, opining:

      The detective testified to his belief based on his experience. In
      fact, he used the word “believe” three times in the course of the
      exchange. As the trial court determined, the detective's belief that
      Appellant was in one of the three vehicles constituted a credibility
      determination within the province of the jury. The jury was free
      to accept or reject any and all facts and conclusions to which the
      detective testified in deciding whether Appellant occupied one of
      the vehicles in the vicinity at the time surrounding the robbery.

Stewart, 2016 WL 5266553, at *7. Thus, the issue was previously litigated

on direct appeal.

      However, we are mindful that we must analyze Appellant’s claim under

the ineffective assistance of counsel rubric.      We similarly conclude that

Appellant’s current collateral claim lacks merit. Because Detective Appleby

testified regarding his beliefs, the jury was permitted to accept or reject all,

part, or none of his testimony. See Commonwealth v. Diggs, 949 A.2d

873, 879 (Pa. 2008) (“The factfinder is free to believe all, part, or none of the

evidence and to determine the credibility of the witnesses.”). As such, we

conclude that there is no merit to Appellant’s claim that trial counsel was

ineffective for failing to object to Detective Appleby’s testimony.




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      Regarding the third issue we examine, Appellant claims that trial counsel

was ineffective for failing to investigate and call Maritza Melendez and Rickie

Hairston as defense witnesses. Appellant’s Brief at 25-30. Initially, Appellant

posits that the PCRA court erred in denying relief because he “purportedly did

not attach a signed certification from these witnesses” to his PCRA petition.

Id. at 26.   He claims that PCRA counsel satisfied the witness certification

requirement under the PCRA by personally certifying the substance of each

witness’ testimony. Id. at 27.    Appellant next contends that Melendez, his

girlfriend at the time of the crimes, “would have provided an alibi for

[Appellant] and testified that she was working with [Appellant] at another

location at the time of the home invasion” and would have “contradict[ed] the

Commonwealth’s evidence that she drove the same type of vehicle used in

the home invasion.”    Id. at 28. With regard to Rickie Hairston, Appellant

avers:

      []Rickie Hairston, an individual identified as the possible other
      male involved in the robbery, was never called as a witness. The
      Commonwealth’s theory throughout the case was that two males
      and one female were the suspects in this case. Detective Appleby
      testified that [Father] identified Rickie Hairston in a photo lineup
      as the suspect he believed was pointing the gun. He further
      testified that Rickie Hairston was one of the males on video coming
      out of the subject vehicle.

      Mr. Hairston lives in LaFayette, Louisiana and has lived there since
      approximately 2012. If called as a witness at trial, Mr. Hairston
      would have testified that he was in Louisiana at the time of the
      incident on January 6, 2014 and was not in the Harrisburg area.
      This testimony would have cast further doubt on the
      Commonwealth’s entire theory of [Appellant’s] guilt[.]



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Id. at 28-29 (record citations omitted).

      To prove that trial counsel provided ineffective assistance for failing to

call a witness, Appellant must demonstrate:

      (1) the witness existed; (2) the witness was available to testify
      for the defense; (3) counsel knew of, or should have known of,
      the existence of the witness; (4) the witness was willing to testify
      for the defense; and (5) the absence of the testimony of the
      witness was so prejudicial as to have denied the defendant a fair
      trial.

Commonwealth v. Brown, 196 A.3d 130, 167 (Pa. 2018) (citation omitted).

      Moreover, we have previously determined that a PCRA petitioner who

seeks an evidentiary hearing on a claim that counsel was ineffective for failing

to call alleged alibi witnesses is not required to attach sworn affidavits of

proposed witnesses to his PCRA petition. See Commonwealth v. Pander,

100 A.3d 626, 641 (Pa. Super. 2014), appeal denied, 109 A.3d 679 (Pa.

2015). However, the PCRA petition must include “a signed certification as to

each intended witness,” setting forth the “witness's name, address, date of

birth and the substance of the proposed testimony.” Commonwealth v.

Brown, 767 A.2d 576, 582 (Pa. Super. 2001); see also 42 Pa.C.S.A.

9545(d)(1)(ii) (“If a petitioner is unable to obtain the signature of a witness

[], the petitioner shall include a certification, signed by the petitioner or

counsel, stating the witness's name, address, date of birth and substance of

testimony.”) (emphasis added).         Here, Appellant’s counsel attached a

certification, which he signed, to the PCRA petition setting forth the personal



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information of Maritza Melendez and Rickie Hairston, as required above, as

well as the substance of their testimony. As such, we agree with Appellant

that the PCRA court erred by determining that the signed certification as

presented was deficient.

      However, the PCRA court alternatively examined the merits of

Appellant’s witness claim and determined that Appellant could not prove he

was prejudiced by failing to call Melendez or Hairston.       With regard to

Melendez, the PCRA court determined that trial counsel’s decision not to call

Melendez was “a reasonable strategic decision” because her testimony “would

have solidified identification of [Appellant] as the perpetrator.” PCRA Court

Opinion, 6/29/2018, at 11. Upon review of the certified record, we agree. At

trial, counsel argued there was no physical evidence linking Appellant to the

crimes and that the sole eyewitness, Father, did not identify Appellant as a

perpetrator. The Commonwealth argued that Melendez and Appellant worked

together to complete the crimes.    As the trial court astutely noted, calling

Melendez as an alibi witness would have only highlighted the fact that the two

were together at the time of the crime, undermining counsel’s strategy to

distance Appellant from Melendez.            Aside from Melendez’s proffered

testimony, Appellant does not identify additional evidence to support the bald

assertion that he and Melendez were in another location at the time of the

crimes.   For all of the foregoing reasons, we agree with the PCRA court’s




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assessment that trial counsel had a reasonable strategy in not calling

Melendez at trial.

      With regard to Hairston, the PCRA court also concluded that counsel had

a reasonable strategy in not calling Hairston as a witness at trial.   PCRA Court

Opinion, 6/29/2018, at 12. As the PCRA court notes, calling Hairston would

have “hampered the entire defense theory” that Father identified Hairston as

a perpetrator and “vehemently” denied that Appellant was responsible. Id.

at 13. We agree.      Father identified Hairston “as the man he believed may

have been holding the gun.”       N.T., 6/9/2015, at 150.     Detective Appleby

testified that while watching surveillance videos of the three cars circling the

subject residence, he “saw a male he believed to be Rick Hairston get out of

one of those vehicles” at a nearby McDonald’s. Id. at 151. Detective Appleby

also testified that Hairston “went to Louisiana a few days after the robbery.”

Id. at 153. If Hairston testified that he was in Louisiana at the time of the

crime, it would have cast doubt on Father’s identification of Hairston and

weakened Appellant’s claim that Hairston was the actual perpetrator. As such,

we do not deem trial counsel ineffective for failing to call Melendez and

Hairston as witnesses.

      Next, Appellant maintains that trial counsel was ineffective for failing to

request a jury instruction pursuant to Commonwealth v. Kloiber, 106 A.2d

820 (Pa. 1954), because Father did not have an opportunity to clearly view or

identify the perpetrator. Appellant’s Brief at 30-33.    He contends that “[t]he


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trial court’s final charge regarding witness testimony and credibility was

woefully inadequate for the Kloiber instruction.” Id. at 32.

      Our Supreme Court has determined:

      Our case law makes clear that the need for a Kloiber instruction
      focuses on the ability of a witness to identify the defendant. See
      Commonwealth v. Fisher, 813 A.2d 761, 770–771 (Pa. 2002)
      (opinion announcing the judgment of the court) (providing no
      relief to PCRA petitioner based [on] Kloiber [] where witness, who
      knew defendant prior to shooting, failed to identify defendant at
      pre-trial line-up due to fear that identifying him would endanger
      her and her family); Commonwealth v. Lee, 585 A.2d 1084,
      1087 (Pa. 1991) (finding Kloiber instruction inappropriate where
      fear of identifying defendant cannot be equated to failure to make
      identification); [Commonwealth v.] Ali, 10 A.3d [282,] 304
      [(Pa. 2010)](“Any perceived weaknesses in N.M's testimony
      attributable to her tender years, the circumstances of the horrific
      experience, the subject matter, and her ability to recall details
      were matters of credibility for the jury as factfinder to decide; but
      those issues did not undermine N.M.'s actual physical ability to
      identify appellant at the time and place of the murder, so as to
      trigger the special identification testimony concerns underlying
      the Kloiber line of decisions.”).

Commonwealth v. Reid, 99 A.3d 470, 490–491 (Pa. 2014).                  In such

instances, where a witness’ equivocal identification is based upon fear of

reprisal, our Supreme Court has concluded that a Kloiber instruction is

inappropriate and that a general jury charge on witness credibility is proper.

Id.

      In this case, Detective Appleby testified that Father acted strangely

when asked to identify Appellant from a photo array.         N.T., 6/9/2015, at

127-130. Detective Appleby testified that Father was “scared to death” when

he pointed to a photograph of Appellant and said, “Definitely not him.” Id. at


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128-129. Detective Appleby stated that it was the only time in 17 years of

law enforcement that he had seen such behavior. Id. at 128. In essence,

Detective Appleby’s testimony suggested that Father’s behavior when viewing

the photographic array indicated that he recognized Appellant, but stopped

short of positively identify him due to fear. As our Supreme Court has made

clear, a Kloiber instruction is not warranted where the fear of identifying a

defendant cannot be equated to the failure to make an identification. Here,

there is no dispute that the trial court gave the jury a general charge on

credibility and we presume that the jury followed the trial court’s instructions.

See Vucich. As such, Appellant’s Kloiber challenge fails.

      Appellant also argues that trial counsel was ineffective for failing to use

impeachment evidence derived from the police interrogation of S.M.

Appellant’s Brief at 33. In sum, Appellant posits:

      Here, [S.M.], the daughter of the victim [(Father)], had a prior
      relationship with [Appellant]. She was a key Commonwealth
      witness who provided a purported motive for the offense. She
      provided a recorded interrogation with Detective Appleby. During
      that interrogation, she had an attorney present. During that
      interview, she provided a number of inconsistent statements, as
      well as recanting exculpatory statements she made to police about
      [Appellant’s] alleged involvement in the offense. Nevertheless, at
      no point in time was that recorded interrogation ever played or
      utilized, nor was she impeached with her own prior statements.
      Given the lack of direct evidence in the case, the failure to do so
      constituted ineffective assistance [of counsel].

Id. at 34 (citation omitted).

      The PCRA court determined that “the record reflects that [] trial counsel

properly focused on questioning [] inconsistencies in [S.M.’s] testimony.”


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PCRA Court Opinion, 6/29/2018, at 16. Upon review of the trial transcripts,

we agree.     Here, defense counsel cross-examined S.M. upon perceived

inconsistences between her trial testimony and statements made to police.

S.M. testified that she hesitated in telling the police that Appellant was the

perpetrator because she “was scared for her life.” N.T., 6/9/2015, at 60. S.M.

also stated that she believed certain statements attributed to her were not

accurately reflected in the police report. Id. at 64-65. As such, trial counsel

adequately cross-examined S.M. at trial, in an attempt to impeach her.

Finally, we note that trial counsel also questioned Detective Appleby

extensively about his interactions and interviews with S.M., which showed that

S.M. was reluctant and slow to reveal information to police. Id. at 120-129.

He testified that she was extremely fearful “and it was difficult for her to tell

[police] things about [Appellant.]”    Id. at 129.    Thus, while trial counsel

impeached S.M. with her inconsistent statements, the Commonwealth

provided evidence to explain them. As such, Appellant has failed to show he

was prejudiced. Accordingly, there is no merit to Appellant’s claim that trial

counsel was ineffective for failing to impeach S.M. with her prior recorded

conversation with police.

      We turn now to address three claims that trial counsel was ineffective

for failing to raise issues pertaining to sentencing. First, Appellant contends

that he was improperly sentenced for multiple conspiracies – conspiracy to

commit robbery, conspiracy to commit burglary, and conspiracy to commit


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unlawful restraint.5 Appellant’s Brief at 40-41. Citing 18 Pa.C.S.A. §§ 903

and 906, Appellant argues that all of the crimes arose out of the same

agreement or continuous relationship, namely “to obtain money inside a

residence that was allegedly being held in a suitcase.” Id. at 41. As such,

Appellant argues that he could only be convicted of one inchoate crime for his

conduct.     Id. at 40.     Therefore, Appellant argues that trial counsel was

ineffective for failing to object to sentencing on multiple inchoate counts as

set forth above. Id. at 41.

       This issue implicates the legality of Appellant’s sentence.6 See

Commonwealth v. Jacobs, 39 A.3d 977, 982 (Pa. 2012) (opinion

announcing the judgment of the court) (“[S]eparate sentences […] barred by

Section 906's prohibition of multiple sentences for inchoate crimes […] relates

to the legality of sentence[].”).        An issue relating to legality of sentence

presents a question of law for our review.          Id. (citation omitted). “When

addressing such questions of law, we employ a plenary scope of review, and

our standard of review is de novo.” Id.

       We begin with the definition of conspiracy, which is as follows:


____________________________________________


5 Appellant fails to mention that he was convicted of a fourth inchoate crime,
conspiracy to commit false imprisonment.

6Appellant raised the issue in his PCRA petition and, thus, it is properly before
us. See Commonwealth v. Ousley, 21 A.3d 1238 (Pa. Super. 2011)
(Although legality of sentence is subject to review within the PCRA, the claim
must be raised in a PCRA petition and cannot be raised for the first time on
appeal).

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      (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.A. § 903(a). “If a person conspires to commit a number of crimes,

he is guilty of only one conspiracy so long as such multiple crimes are the

object of the same agreement or continuous conspiratorial relationship.” 18

Pa.C.S.A. § 903(c). “A person may not be convicted of more than one of the

inchoate crimes of criminal attempt, criminal solicitation or criminal conspiracy

for conduct designed to commit or to culminate in the commission of the same

crime.” 18 Pa.C.S.A. § 906.

      In Jacobs, our Supreme Court examined the application of Section 906

in circumstances relevant to those currently before us:

      The full text of Section 906 of the Crimes Code, entitled “Multiple
      convictions of inchoate crimes barred,” provides as follows: “A
      person may not be convicted of more than one of the inchoate
      crimes of criminal attempt, criminal solicitation or criminal
      conspiracy for conduct designed to commit or to culminate in the
      commission of the same crime.” 18 Pa.C.S.A. § 906. […T]he
      Superior Court has interpreted “convicted” in Section 906 to mean
      the entry of a judgment of sentence, rather than a finding of guilt
      by the jury. See Commonwealth v. Grekis, 601 A.2d 1284,
      1295 (Pa. Super. 1992) (“Section 906 is designed to eliminate
      multiple convictions, i.e., judgments of sentence, for conduct
      which constitutes preparation for a single criminal objective.”);
      Commonwealth v. Maguire, 452 A.2d 1047, 1049 (Pa. Super.

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     1982) (rejecting the defendant's argument that “convicted” in
     Section 906 is equivalent to the jury's verdict: “When the law
     speaks of a ‘conviction,’ it means a judgment, and not merely a
     verdict, which in common parlance is called a ‘conviction.’”).
     [Accordingly,] it is not a violation of Section 906 for the jury to
     find a defendant guilty of multiple inchoate crimes designed to
     culminate in the same crime; a problem arises only when the trial
     court imposes multiple sentences for those inchoate crimes that
     are designed to culminate in the same crime.

                         *           *            *

     Applying Section 906, [our Supreme Court has] held that
     “inchoate crimes merge only when directed to the commission of
     the same crime, not merely because they arise out of the same
     incident.” Commonwealth v. Graves, 508 A.2d 1198, 1198 (Pa.
     1986) (per curiam). In determining whether inchoate crimes are
     directed to the commission of the same crime, [our Supreme
     Court has] taken a narrow view of the object crime. In Graves,
     for example, the defendant was convicted and sentenced for
     criminal conspiracy and criminal solicitation for his part in an
     incident in which he conspired with fellow gang members to
     assault three police officers, and individually solicited one gang
     member to murder one police officer. Id. at 1199 (Zappala, J.,
     dissenting). Consecutive sentences were imposed for the
     conspiracy and solicitation. On appeal, [our Supreme] Court
     approved of the two sentences. [Graves] held that [] review of
     the record revealed that even though the two inchoate crimes
     arose out of the “same incident,” they were directed at different
     ends, and therefore did not merge at sentencing: the defendant
     conspired to assault three police officers and discreetly solicited
     the murder of one of the officers. [Id.] at 1198. Thus, a person
     may be convicted and sentenced for two inchoate crimes that arise
     out of the same incident which were not designed to culminate in
     the commission of the same crime.

Jacobs, 39 A.3d 977, 982–983 (original brackets omitted; new brackets

added).

     Moreover, this Court has determined:

     A single, continuing conspiracy is demonstrated where the
     evidence proves that the essential feature of the existing

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J-S07007-19


      conspiracy was a common plan or scheme to achieve a common,
      single, comprehensive goal.... A single, continuing conspiracy may
      contemplate a series of offenses, or be comprised of a series of
      steps in the formation of a larger, general conspiracy....
      Therefore, where the evidence at trial is sufficient for the jury to
      infer that the essential features of the existing conspiracy were a
      common plan or scheme to achieve a common, single,
      comprehensive goal or end, then the conclusion that the
      conspiracy was a single, continuing conspiracy is justified.

Commonwealth v. Troop, 571 A.2d 1084, 1089–1090 (Pa. Super. 1990);

see also Commonwealth v. Henkel, 487 A.2d 1010, 1013 (Pa. Super.

1985) (“[C]onspiracy is not severable as to diverse crimes contemplated by a

single agreement[.]”).

      In determining whether a single or multiple conspiracy has been

established, we consider several relevant factors:

      The factors most commonly considered in a totality of the
      circumstances analysis of the single vs. multiple conspiracies issue
      are: 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.

Commonwealth v. Davis, 704 A.2d 650, 654 (Pa. Super. 1997) (ellipsis

omitted).

      In this case, the entire sum of the PCRA court’s analysis on this issue is

as follows:

      [Appellant] argues that it was improper for the trial court to
      sentence [him] for multiple inchoate offenses, despite the fact
      that no evidence was presented establishing the natural


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      progression of events that took place on January 6, 2014, resulted
      from one common agreement.

      In the absence of evidence establishing that multiple crimes
      resulted from one common agreement, an individual may be
      convicted and sentenced for multiple inchoate offenses. The
      [Pennsylvania] Supreme Court, in Commonwealth v. Savage,
      established “just as a single entrepreneur may enter into several
      separate yet similar joint business ventures with the same or
      different partners or investors at the same time, criminals in
      general and drug traffickers in particular may enter into more than
      one criminal conspiracy involving similar crimes at the same time,
      even in the same area.” Commonwealth v. Savage, 566 A.2d
      272, 277 (Pa. Super. 1989).

      Evidence was never presented during the trial to establish that the
      progression of events directly emanated from one common
      agreement before the individuals entered the home. Accordingly,
      [the trial court] was proper to sentence [Appellant] for multiple
      inchoate offenses and [] reject [Appellant’s] contention as
      meritless.

PCRA Court Opinion, 6/29/2018, at 19.

      For the reasons that follow, we disagree.      Here, when viewing the

totality of the circumstances in this case, it is clear that there was a common

plan or scheme to achieve a common, single, comprehensive goal – the theft

of money thought to be stored inside the subject residence. Considering the

factors in Davis, all of the crimes took place at the same time in the same

location and were committed by the same cohorts acting in concert with one

another.   More specifically, the Commonwealth presented the testimony of

S.M. and the investigating police officer showing that Appellant was led to

believe that there was a large sum of money in a suitcase inside S.M.’s home.

Approximately an hour before the crimes, Appellant asked S.M. if anyone was


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J-S07007-19


home at the residence in question. While such facts may have suggested that

Appellant and his confederates intended to burgle the residence while it was

unoccupied, such a conclusion is a red herring, as other important evidence

suggests otherwise. Father testified that the three conspirators knocked on

the door and came directly into the residence without invitation and a gun

drawn, demanded Father get on the floor, and then immediately tied his hands

behind his back with zip-ties.     N.T., 6/9/2015, at 19-22.      Here, the

Commonwealth presented evidence that Appellant and his cohorts arrived at

the home with a firearm and zip-ties, which demonstrated their intent to

procure the purported cash by any means, including the use of a firearm,

physical force (or threat of force), and forcible restraint if someone was

present. Thus, we disagree with the PCRA court’s determination that there

was no evidence suggesting that there was a progression of events from a

common agreement or understanding.

     Moreover, there was no evidence to suggest a freestanding criminal plot

to rob Father, separate from the general plan to steal money purportedly

stored at S.M.’s residence and use force against anyone present at the time.

See Graves, supra. In fact, none of the conspirators took anything from

Father’s person. The only item stolen from the home was a blue suitcase,

which the Commonwealth established through S.M.’s testimony was the object

of the conspiracy. Thus, we conclude that Appellant’s conduct was designed

to culminate in the commission of only one general crime, namely, the theft


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J-S07007-19


of money thought to be stored in a suitcase in the victims’ home.         See

Commonwealth v. Crocker, 389 A.2d 601 (Pa. Super. 1978) (“18 Pa.C.S.A.

§ 906 explicitly bars appellant’s conviction and sentencing for both criminal

attempt and possession of an instrument of crime[; a]ppellant’s conduct [of]

nighttime entry into an enclosed Bell Telephone storage lot while in possession

of cable-cutting tools was designed to culminate in the commission of only

one crime: theft of Bell Telephone’s cable.”; compare Commonwealth v.

Welch, 912 A.2d 857 (Pa. Super. 2006) (conspiracy to commit robbery and

attempted homicide were independent where conspirators were interrupted

stealing an all-terrain vehicle, which led Welch to chase an eyewitness and

shoot at him). In this case, there is no evidence to suggest that Appellant

agreed only to a burglary, but later agreed to a robbery based upon

unanticipated, intervening factors. Instead, the converse is true. From the

start, the conspirators were ready to commit a robbery, as evidenced by the

materials they brought to the scene.

      Furthermore, we reject the PCRA court’s reliance on Savage. In that

case, this Court was tasked with determining whether state charges for

conspiracy to deliver narcotics should be dismissed as barred under 18

Pa.C.S.A. § 111 (when prosecution barred by former prosecution in another

jurisdiction), because the defendant had been charged already with the same

crime in federal court.   The scope and nature of that case, however, was

focused on a double jeopardy claim, wherein “the principle issue [was]


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whether one or two groups of conspirators were involved; and, if two separate

groups were involved, whether the separate group of conspirators nonetheless

furthered a single broader conspiracy.” Savage, 566 A.2d at 277-278.       The

Commonwealth argued that there were two separate cocaine distribution

conspiracies involved, but we disagreed and discharged the state conspiracy

charge.   That case focused solely on double jeopardy and examined the

overlap of different groups of alleged coconspirators in a larger narcotics

distribution scheme. Here, as set forth in detail above, there was only one

group of conspirators and the central inquiry was on sentencing for multiple

inchoate crimes arising out of one single, general crime under Section 906.

Thus, the trial court’s reliance on Savage is misplaced and simply not

applicable herein. Accordingly, for all the reasons set forth above, we discern

that the PCRA court erred as a matter of law in concluding that Appellant was

not entitled to relief on his illegal sentencing claim.

      Accordingly, we turn now to discuss Appellant’s remedy.       Generally,

when there is an error in sentencing a defendant to multiple inchoate crimes,

we have the option to either remand for resentencing or to amend the

sentence directly.    Commonwealth v. Ford, 461 A.2d 1281, 1289 (Pa.

Super. 1983). Normally, when sentences are imposed concurrently, we can

amend where we will not upset the overall sentencing scheme. See

Commonwealth v. Martinez, 153 A.3d 1025, 1033 (Pa. Super. 2016). In

such instances, we vacate the concurrent sentence for the lesser offense and


                                      - 24 -
J-S07007-19


let stand the sentence for the greater offense.      Ford, 461 A.2d at 1298.

However, in instances where consecutive sentences are imposed for inchoate

offenses of equal grading, we have determined it “prudent to vacate and

remand, leaving it to the sentencing court to decide which one of the []

inchoate convictions to let stand and the sentence to be entered in accordance

thereto.” Id. at 1289–1290. Finally, it is well-settled that:

      [I]f a trial court errs in its sentence on one count in a multi-count
      case, then all sentences for all counts will be vacated so that the
      court can restructure its entire sentencing scheme.

Commonwealth v. Baney, 187 A.3d 1020, 1023 (Pa. Super. 2018), citing

Commonwealth v. Bartrug, 732 A.2d 1287, 1289 (Pa. Super. 1999), appeal

denied, 747 A.2d 896 (Pa. 1999) (citations omitted) (holding that the PCRA

court did not abuse its discretion in vacating entire sentence before

resentencing, rather than addressing only illegal part of sentence); see also

Commonwealth v. Veon, 150 A.3d 435, 456 (Pa. 2016) (remanding for

resentencing where vacating sentence of imprisonment and restitution left the

“comprehensive sentencing scheme unmoored from its foundation.”).

      Here, Appellant was convicted of conspiracy to commit burglary,

conspiracy to commit robbery, conspiracy to commit false imprisonment, and

conspiracy to commit unlawful restraint. The trial court imposed consecutive

sentences for conspiracy to commit burglary, conspiracy to commit robbery,

and conspiracy to commit unlawful restraint; no further penalty was imposed

for conspiracy to commit false imprisonment.       Burglary and robbery were


                                     - 25 -
J-S07007-19


graded as first-degree felonies, unlawful restraint was graded as a first-degree

misdemeanor, and false imprisonment was graded as a second-degree

misdemeanor.      Because of the consecutive nature of the sentences and

differences in the grading of the offenses, we vacate the judgment of sentence

for conspiracy to commit burglary, conspiracy to commit robbery, conspiracy

to commit false imprisonment, and conspiracy to commit unlawful restraint

and remand for the trial court to determine which of the highest-graded

felonies (either burglary or robbery) to let stand and the sentence to be

entered in accordance thereto. Moreover, having upset the entire sentencing

scheme, we vacate all of the sentences imposed on all the remaining

convictions and remand for resentencing consistent with this memorandum.

      Appellant’s next two issues challenge the ineffective assistance of

counsel regarding the discretionary aspects of sentencing. Appellant contends

that trial counsel and post-sentence counsel rendered ineffective assistance

of counsel for failing to object to erroneous sentencing guidelines. Appellant’s

Brief at 35-38.   Appellant claims that the trial court erroneously relied upon

a sentencing guideline form that indicated that he was a repeat felony offender

(“RFEL”) when his prior record score indicated that it was actually “5.” Id. at

35. Despite the Commonwealth’s concession at sentencing that Appellant’s

prior record score was a “5” instead of RFEL for guideline purposes, Appellant

contends that he was still sentenced in the aggravated range of sentences for

those defendants with a prior record score of 5, as well as in the top of the


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standard range of sentences for RFELs.        Id. at 36-37. As such, Appellant

claims that trial and post-sentence counsel were ineffective for failing to object

to the trial court’s use of erroneous sentencing guidelines.    Finally, Appellant

maintains that the trial court relied upon improper sentencing factors in

fashioning his sentence and that trial and post-trial counsel were ineffective

for failing to object. Appellant’s Brief at 38-40. He claims that the trial court

relied upon his “silence, protestation of innocence[,] and purported lack of

remorse” at sentencing which resulted in an aggravated sentence.           Id. at

39-40. However, given our disposition that resentencing is warranted, we

need not address these issues. Appellant can raise any issues pertaining to

the sentencing guidelines employed and the reasons the trial court relies upon

in fashioning a new sentence at resentencing or in post-sentence motions.

      Finally, Appellant contends that he was entitled to an evidentiary

hearing under the PCRA. Appellant’s Brief at 16-17.         When reviewing the

denial of a PCRA petition without an evidentiary hearing, we determine:

      whether the PCRA court erred in concluding that there were no
      genuine issues of material fact and in denying relief without an
      evidentiary hearing. When there are no disputed factual issues,
      an evidentiary hearing is not required.

Commonwealth v. Hart, 199 A.3d 475, 481 (Pa. Super. 2018) (internal

citations and quotations omitted). Here, as set forth above, there were no

issues of material fact requiring an evidentiary hearing.            Accordingly,

Appellant’s final issue is without merit.




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     Convictions affirmed. Case remanded for resentencing in accordance

with this memorandum. Jurisdiction relinquished.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 06/11/2019




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