J-A09014-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    MOHAMMED KAMANA,                           :
                                               :
                       Appellant               :   No. 3446 EDA 2017


             Appeal from the Judgment of Sentence, June 9, 2017,
             in the Court of Common Pleas of Philadelphia County,
             Criminal Division at No(s): CP-51-CR-0006317-2015.


BEFORE:      KUNSELMAN, J., MURRAY, J., and PELLEGRINI*, J.

MEMORANDUM BY KUNSELMAN, J.:                              FILED JUNE 07, 2019

        Appellant Mohammed Kamana1 appeals from the judgment of sentence

imposed after a jury convicted him of attempted murder, aggravated assault,

criminal conspiracy, possession of an instrument of a crime, and various

firearm charges.2 After careful review, we affirm the convictions, but remand

for resentencing.

        The relevant facts are as follows: On April 13, 2015, Appellant shot

Michael Pritchette in the back after the two had been involved in a dispute

several days prior. Near the intersection of 67th and Elwood Street, Appellant

____________________________________________


1 According to the Commonwealth, Appellant’s surname is actually “Kamara.”
See Commonwealth’s Brief at 2, n.1. For ease of discussion, we will refer to
him as “Appellant.”

2   18 Pa.C.S.A. §§ 901 and 2502, 2702, 903, 907, 6105, 6106, and 6108.


____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-A09014-19



and his co-defendant, Mustafa Crenshaw, pulled up to Pritchette in a white

Buick, exited the car and began fighting him.      Crenshaw passed a gun to

Appellant, who then shot Pritchette.

      Anita Bivens, a SEPTA bus operator, witnessed the shooting while

driving her bus through the 67th and Elwood Street intersection. Upon hearing

a gunshot, Bivens immediately turned the bus onto 67th Street, driving until

she spotted a police car several blocks away.

      Pritchette was initially interviewed by police in the hospital, but claimed

he did not know who shot him. One week later, police interviewed Pritchette

again. Pritchette told the police that the men who attacked him were called

“Staph” and “Ham” whom he identified in photographs. Pritchette explained

he had not disclosed this information previously because he was worried for

his safety since the two men knew where he lived.

      Police obtained an arrest warrant for Appellant and learned he was

staying at 2105 South 65th Street. On April 24, 2015, Sergeant Michael Davis

knocked on the door of the residence. Appellant looked out of a first floor

window and then ran upstairs. Sergeant Davis continued to knock and yell

for Appellant while other officers secured the property. Appellant returned

and opened the front door five minutes later where he was apprehended.

      A grand jury was empaneled to consider potential charges.            After

hearing testimony from various witnesses, including Pritchette, the grand jury

returned an indictment that was approved by the supervising judge.           The

Commonwealth also filed bills of information against Appellant, charging him

                                       -2-
J-A09014-19



with the above crimes. The case then proceeded to a jury trial. During trial,

the court issued two exclusion orders, barring the public from the proceedings

during Pritchette’s and Bivens’ testimony. The jury convicted Appellant on all

charges. On June 9, 2017, the trial court sentenced Appellant to an aggregate

sentence of 11½ to 23 years’ incarceration, plus 10 years of probation.

Appellant filed post-sentence motions, which were denied by operation of law

on October 18, 2017. This timely appeal follows. Both the trial court and

Appellant have complied with Pa.R.A.P. 1925.

      Appellant raises the following issues for our appellate review:

         1. Did the trial court abuse its discretion when it issued an
         exclusion order to clear the courtroom during the testimony
         of Pritchette and Bivens in violation of Appellant’s right to a
         fair and public trial under Article I, Sections 9 and 11 of the
         Pennsylvania Constitution and the 6th and 14th Amendments
         to the United States Constitution?

         2. Did the trial court abuse its discretion when it allowed
         the Commonwealth to present identification testimony that
         Appellant sometimes spoke with an African or Jamaican
         accent when the Commonwealth failed to disclose this
         identification evidence to Appellant prior to trial in violation
         of Pa.R.Crim.P. 573(b)(1)(d)?

         3. Did the trial court err in issuing a consciousness of
         guilt/flight instruction over Appellant’s objection when the
         evidence did not support the issuance of such an
         instruction?

         4. Did the trial court improperly conclude that that jury
         found Appellant guilty of conspiracy to commit aggravated
         assault as opposed to conspiracy to commit murder where:
         (1) the jury rendered a general verdict on the charge of
         conspiracy; (2) a defendant must receive the benefit of an
         ambiguous verdict; (3) Appellant received a sentence of 2½
         to 5 years of imprisonment for the conspiracy conviction;
         and (4) Appellant could not have been sentenced for

                                      -3-
J-A09014-19


          conspiracy to commit murder when he had already received
          a sentence for the crime of attempted murder?

See Appellant’s Brief at 5-6.

       In his first issue, Appellant asserts that the trial court violated his right

to a public trial guaranteed by Article I, Section 9 of the Pennsylvania

Constitution and the Sixth and Fourteenth Amendments of the United States

Constitution.3 Although the right to a public trial is indeed enshrined in both

this Commonwealth’s and the United States’ constitutions, it is not absolute.

Commonwealth v. Knight, 364 A.2d 902, 906 (Pa. 1976). A court may

issue an exclusion order if it determines such action is necessary under the

circumstances.      “[T]he exclusion order must be fashioned to effectuate

protection of the important interest without unduly infringing on the accused’s

right to a public trial either through its scope or duration.” Id. The decision

to issue an exclusion order is within the sound discretion of the trial court as

“it alone is sufficiently close to the circumstances to apprehend fully the

subtleties that may be present.”          Id.    Therefore, our review is limited in

determining whether the trial court abused its discretion in issuing the order,

and if it did not, whether it abused its discretion in fashioning the scope and

duration of the order.       Commonwealth v. Conde, 822 A.2d 45, 49 (Pa.

Super. 2003).

____________________________________________


3 The Commonwealth argues that Appellant waived this challenge because,
although he objected at trial, he did not base the objection on constitutional
grounds. See Commonwealth’s Brief at 8-9. After reviewing the pertinent
transcript, we conclude that Appellant sufficiently preserved this claim. See
N.T., 3/23/17, 118-119.

                                           -4-
J-A09014-19



In granting the Commonwealth’s motion to clear the courtroom, the trial court

reasoned at trial:

            It is my job to make sure that the courtroom remains in
         order. And that everyone conducts themselves with proper
         decorum and to make sure, to the extent that I can – we
         have two sheriffs here also – that the courtroom is safe.

            The Commonwealth has put sufficient basis on the record
         for their belief that their next witness, who is the alleged
         victim in the case, is one who has repeatedly indicated that
         they were concerned for their personal safety in coming
         forward and even giving any testimony of any other kinds
         of statements in this case.

            And in addition, to the extent that this case was one that
         was handled by the indicted [sic] grand jury, which in and
         of itself, indicates that there was some sort of intimidation
         or alleged intimidation or suggestion of intimidation taking
         place, even at the time the case was brought to the court
         the very first time.

            Under those circumstances, I don’t have to wait for
         someone in the room to say something in order to make
         sure that proper decorum is exercised or that the room is
         safe for everyone involved, including the alleged victim in
         this case.

            So I agree with the Commonwealth at this point, it is
         appropriate to clear the courtroom so that the alleged victim
         in this case can give testimony without fear of any further
         retaliation.

            The Commonwealth had indicated in opening argument
         that the alleged victim was concerned about his personal
         safety; moved out of state. He was not in state on Tuesday
         when they were supposed to be here, but now is back in
         state and still has the same concern for [his] personal safety
         that [he] had at the beginning of the case.




                                     -5-
J-A09014-19



N.T., 3/23/17, at 120-121.      4


       In support of his claim that that the trial court abused its discretion in

clearing the courtroom, Appellant specifically argues that:

          [T]here was no evidence presented to suggest that either
          [Pritchette] or [Bivens] had any reason to fear intimidation
          or retaliation by either of the defendants or their families.
          In fact, the trial court did not require either witness to testify
          at an in camera hearing, but instead accepted the
          prosecutor’s assertion that each witness was afraid to
          publicly testify. This was simply an inadequate basis for
          abridging [Appellant’s] right to a public trial.

Appellant’s Brief at 19. Although the record shows that the trial court did not

hold an in camera hearing, we disagree with Appellant’s assertion that the

record did not show sufficient evidence to establish a need for the exclusionary

orders.

       The trial court rejected Appellant’s claim:

             In the case at bar, this Court properly granted the
          Commonwealth’s request to have the courtroom cleared
          during the testimony of [Pritchette] and [Bivens]. The
          record shows that the Commonwealth asked for the
          courtroom to be cleared during [Pritchette’s] testimony due
          to some inappropriate behavior in the courtroom as well as
          [Pritchette’s] fear of retaliation. The Commonwealth argued
          that this case had been through the grand jury process for
          this very reason, and that [Pritchette] had moved out of
          state out of concerns for his safety. Over defense counsel’s
          objection, this Court granted the motion, stating that [the
          court] wanted to maintain proper decorum in the courtroom,
          acknowledged that this case had been before a grand jury
          due to intimidation issues, and expressed concern that the
          courtroom remain a safe space for everyone. This Court
____________________________________________


4 The trial court adopted this same reasoning when ruling on the
Commonwealth’s motion to exclude during Bivens’ testimony.

                                           -6-
J-A09014-19


          further stated that each defendant could choose one family
          member to remain in the courtroom with them for support,
          while the remainder of the gallery would be cleared for the
          duration of [Pritchette’s] testimony.            Later, the
          Commonwealth requested that the gallery be cleared again
          during [Bivens’] testimony arguing that Bivens was fearful
          of retaliation. Once again, over defense counsel objections,
          this Court grated the motion and agreed to clear the
          courtroom for the duration of Bivens’ testimony, finding that
          [Bivens’] fears were reasonable as she still resided in
          Philadelphia and continued to work as a SEPTA bus driver in
          the city. Thus, the record demonstrates that this Court
          properly granted the Commonwealth’s motions to clear the
          courtroom as this was a reasonable restriction on access
          designed to maintain courtroom decorum and ensure the
          safety of the testifying witnesses. The exclusion was limited
          in scope and duration, and was restricted just to the
          testimony of two witnesses, [Pritchette and Bivens]. The
          general public was permitted to observe every other part of
          the trial. Moreover, this Court allowed each defendant to
          choose a support person to remain in the courtroom with
          them during [Pritchette’s] and Bivens’ testimonies.
          Therefore, this Court committed no error when it granted
          the Commonwealth’s requests to clear the courtroom and
          no relief is due.

Trial Court Opinion 6/26/18, at 12-13.5 Our review of the record supports the

trial court’s conclusion.

       Initially, this matter was presented to an indicting grand jury rather than

proceeding to a preliminary hearing.             In order for a judge to grant the

Commonwealth’s motion for an indicting grand jury, the Commonwealth must

“allege facts asserting that witness intimidation has occurred, is occurring, or
____________________________________________


5 Appellant and Crenshaw were tried together. Crenshaw was convicted of
aggravated assault, criminal conspiracy, possession of an instrument of a
crime and various firearm violations. His appeal is docketed at No. 3590 EDA
2017.


                                           -7-
J-A09014-19



is likely to occur.”   Pa.R.Crim.P. 556.2(A)(1).     The judge will grant the

Commonwealth’s motion only if he determines probable cause of witness

intimidation exists. Pa.R.Crim.P. 556.2(A)(3). Hence, the judge who presided

over Appellant’s grand jury hearing found that the Commonwealth presented

sufficient facts that witness intimidation had occurred or likely would.

      Furthermore, both Pritchette and Bivens failed to appear until a bench

warrant was issued for their arrest. Pritchette explained he was reluctant to

testify in front of “a lot of people” because he was “afraid [of] what’s going to

happen.” N.T., 3/23/17, at 130. Pritchette also had moved out of state for

fear of his safety. Bivens, like Pritchette, also testified that she was hesitant

to testify for fear that someone in the neighborhood would see her face and

would cause her problems. N.T., 3/24/17, at 141. Bivens additionally testified

that she had been so “shaken” by the incident that she had taken a six-week

leave from work and undergone therapy for anxiety. Id. at 145-46, 150.

      In furtherance of his argument, Appellant relies on this Court’s decision

in Commonwealth v. Penn, 562 A.2d 833 (Pa. Super. 1989). In that case,

this Court reversed the defendant’s conviction for murder and remanded for a

new trial after finding the trial court had abused its discretion by failing to

examine a witness who alleged intimidation prior to closing the courtroom.

This Court further held that the trial court erred in failing to consider

alternatives to closure and explain on record why alternatives were impractical

or inadequate to serve the interests that closure was designed to protect. Id.

at 839.

                                      -8-
J-A09014-19



      However, there is a significant procedural distinction between Penn and

the case at bar. Here, unlike in Penn, the matter was initially presented to

an indicting grand jury rather than proceeding to a preliminary hearing.

Furthermore, both Pritchette and Bivens verified the Commonwealth’s

assertions once they took the stand, and testified they were afraid for their

safety. In Commonwealth v. Knight, 364 A.2d 902, 907 (Pa. 1976), our

Supreme Court noted that the witness’s actual testimony validated the

representations made by the prosecuting attorney, further supporting the

Court’s decision that the trial judge had properly excluded the public. This is

in direct opposition to Penn, where there the witness never testified on the

record about his alleged fears or intimidation.

      Additionally, while the trial court opted to temporarily clear the

courtroom for Pritchette’s and Bivens’ testimony, it permitted Appellant to

choose a family member to remain present, to observe the proceedings and

to offer support. N.T., 3/23/17, at 121; 3/24/17, at 109-110. In this way,

the trial court limited the exclusion in both scope and duration to balance the

interests of the prosecution and the defense.

      “We should not be hasty to reverse a trial judge's actions in establishing

order in his courtroom, unless his actions are not designed to maintain dignity,

order, and decorum, and instead deny or abridge unwarrantedly the

opportunities for the communication of thought and the discussion of public

questions   immemorially     associated    with   resort   to   public   places.”

Commonwealth v. Berrigan, 501 A.2d 226, 234 (Pa. 1985). Accordingly,

                                     -9-
J-A09014-19



under such circumstances, the trial court did not abuse its discretion in

determining necessity warranted the issuance of the exclusion order which it

thoughtfully limited in scope and duration.

         In his second issue, Appellant argues that the trial court erred in

allowing the presentation of voice identification testimony when the

Commonwealth failed to disclose such evidence to defense counsel prior to

trial.

         After the prosecution learned that Sergeant Michael Davis knew

Appellant had an African accent from previous conversations he had with him,

the prosecution informed the trial court and defense counsel he wished to

question him on that subject. Defense counsel objected, arguing that:

           since [defense] counsel was not aware that [Appellant]
           sometimes spoke with an accent, and since the defense had
           already given an opening statement in which it claimed that
           [Appellant] was not the shooter, he argued that [Appellant]
           would be unfairly prejudiced if Sergeant Davis was
           permitted to make what is tantamount to voice identification
           of [Appellant] at trial.

Appellant’s Brief at 25. The trial court overruled the objection.

         In arguing that such testimony should not have been admitted,

Appellant     contends   that   the   Commonwealth      violated    Pa.R.Crim.P.

573(B)(1)(d) by failing to disclose such identification testimony prior to trial.

Rule 573, which relates to pretrial discovery and inspection, provides in

relevant part:

           (B) Disclosure by the Commonwealth.


                                      - 10 -
J-A09014-19


         (1) Mandatory. In all court cases, on request by the
         defendant, and subject to any protective order which the
         Commonwealth might obtain under this rule, the
         Commonwealth shall disclose to the defendant's attorney all
         of the following requested items or information, provided
         they are material to the instant case. The Commonwealth
         shall, when applicable, permit the defendant's attorney to
         inspect and copy or photograph such items.

                                      ***

         (d) the circumstances and results of any identification of the
         defendant by voice, photograph, or in-person identification.


Pa.R.Crim.P. 573.

      The trial court concluded that it properly allowed the Commonwealth’s

testimony indicating that Appellant sometimes spoke with an African accent.

According to the trial court, even in light of the alleged discovery violation,

Appellant’s “claim is without merit as this Court afforded [him] the proper

remedy of more time to prepare; therefore [Appellant] suffered no prejudice.”

Trial Court Opinion, 6/26/18, at 14. As the trial court further explained:

            In the case at bar, [Appellant] suffered no prejudice as a
         result of the Commonwealth’s late disclosure of the
         identification evidence regarding [Appellant’s] various
         accents. The record shows that at trial, the Commonwealth
         indicated that [it] had reviewed prison tapes and that in
         them [Appellant] sometimes spoke with an African accent
         and at other times did not The Commonwealth further
         stated that Sergeant Davis, who knew [Appellant] from
         around the neighborhood, would testify that he knew
         [Appellant] to sometimes speak with an African accent. In
         addition, [Bivens] would testify that she heard the shooter
         speak with a Jamaican or African accent. Defense counsel
         objected, stating that he had no prior knowledge of
         [Appellant’s] use of an African accent and that he had not
         been given the prison tapes during pretrial discovery. This
         Court stated that the remedy to late discovery would be


                                     - 11 -
J-A09014-19


         more time to prepare, not preclusion, and that defense
         counsel could have additional time to prepare and review
         the prison tapes. Defense counsel was given the weekend
         to listen to the prison tapes and prepare for Sergeant Davis’
         testimony. On Monday, defense counsel stated that he
         listened to the tapes and he was prepared to move forward
         with the trial.

            It is unclear what prejudice [Appellant] could have
         suffered as a result of this late disclosure. As stated above,
         this Court has broad discretion in choosing the appropriate
         remedy to a discovery violation and giving defense counsel
         additional time to prepare was not an abuse of that
         discretion. Defense counsel was able to review the prison
         audio tapes over the weekend and make any necessary
         changes to his trial strategy as a result. When defense
         counsel returned to court on Monday, he informed the court
         that he had listened to the tapes and was prepared to
         proceed with trial. The prison tapes themselves were never
         introduced at trial or played for the jury; rather, the only
         identification testimony regarding [Appellant’s] accents
         came from Sergeant Davis’ personal knowledge of
         [Appellant] from their interactions in the neighborhood and
         Bivens’ testimony that she heard the shooter (who she was
         unable to identify) speak with and African or Jamaican
         accent. This evidence was relevant and the jury was free to
         give it as much or as little weight as they chose. [Appellant]
         was not unduly prejudiced by the Commonwealth’s late
         disclosure of this identification evidence as his counsel was
         afforded the proper remedy and granted more time,
         therefore, no relief is due.

Trial Court Opinion, 6/26/18, at 15-16 (citation omitted). We agree.

      Initially, we note that the Commonwealth did not violate Rule 573. The

official comment of this rule clarifies its definition of “identification” explaining:

         Whenever the rule makes reference to the term
         “identification,” or “in-person identification,” it is understood
         that such terms are intended to refer to all forms of
         identifying a defendant by means of the defendant's person
         being in some way exhibited to a witness for the purpose of


                                       - 12 -
J-A09014-19


         an identification: e.g., a line-up, stand-up, show-up, one-
         on-one confrontation, one-way mirror, etc.

Pa.R.Crim.P. 573 (Comment) (emphasis added).           The record reveals that

Sergeant Davis’ observation of Appellant’s accent was not “for the purpose of

identification” nor was Appellant “exhibited” to him for this purpose. Rather,

as noted by the trial court, Sergeant Davis’ observation occurred from

previous interaction with Appellant over the years. N.T., 3/24/17, at 111.

Accordingly, contrary to Appellant’s contention, we conclude that Sergeant

Davis’ testimony describing Appellant’s accent was not subject to mandatory

disclosure under Pa.R.Crim.P. 573(B)(1)(d).

      Moreover, even if the Commonwealth had committed a discovery

violation, the trial court did not abuse its discretion in permitting Sergeant

Davis’ testimony.    Trial courts have broad discretion in deciding on the

appropriate remedy for a discovery violation. Commonwealth v. Causey,

833 A.2d 165, 171 (Pa. Super. 2003). “If a discovery violation occurs, the

court may grant a trial continuance or prohibit the introduction of the evidence

or may enter any order it deems just under the circumstances.”               Id;

Pa.R.Crim.P. 573. Here, as noted by the court, defense counsel was prepared

to move forward with the case once he was granted additional time to review

the prison tapes. Accordingly, Appellant is entitled to no relief on this claim.

      In his third claim, Appellant argues that the trial court erred in issuing

a consciousness of guilt/flight instruction. Appellant asserts “there was no




                                     - 13 -
J-A09014-19



evidence that [he] knew that he was wanted for a crime or attempted to flee.”

Appellant’s at 31-32.6

       Our standard of review for the trial court's instructions to a jury is well

established. “When reviewing a challenge to part of a jury instruction, we must

review the jury charge as a whole to determine if it is fair and complete.”

Commonwealth v. Hanford, 937 A.2d 1094, 1097 (Pa. Super. 2007). We

may only reverse where the court abused its discretion or committed an error

of law. Id.

       A flight instruction is proper where a person with a reason to know that

he was wanted in connection with a crime flees from law enforcement.

Commonwealth v. Thoeun Tha, 64 A.3d 704, 714 (Pa. Super. 2013). As

direct knowledge of a defendant’s state of mind is rarely available, the relevant

intent may be inferred from circumstantial evidence.        Commonwealth v.

Rios, 684 A.2d 1025, 1035 (Pa. 1996).

       The trial court explained the circumstances surrounding Appellant’s

arrest, and its reasons for granting the Commonwealth’s request for flight

instruction as follows:

____________________________________________


6 The Commonwealth argues that Appellant waived this claim because, even
though defense counsel had argued against the prosecution’s request for the
instruction, he did not object to the jury charge as delivered by the trial court,
although he had the opportunity to do so. See Commonwealth’s Brief at 12-
13 (citing Pa.R.Cim.P. 647(B)). Our review of the record supports this
conclusion. See generally, Commonwealth v. Parker, 104 A.3d 17 (Pa.
Super. 2014). Nevertheless, because the trial court addressed the claim, we
will also.


                                          - 14 -
J-A09014-19


             In the case at bar, this Court properly granted the
         Commonwealth’s request for a consciousness of guilt/flight
         instruction because there was sufficient evidence showing
         [Appellant] knew he was wanted for a crime and fled or
         concealed himself as a result. At trial, Sergeant Davis
         testified that he knew [Appellant] from around the
         neighborhood and knew a few of his usual hangouts. After
         learning that an arrest warrant had been issued for
         [Appellant], Sergeant Davis asked around and discovered
         that [Appellant] was staying at someone’s house in the
         neighborhood. He and two fellow officers, in full uniform,
         went to that house at 5 a.m. and knocked at the front door,
         while two more officers went around to secure the rear of
         the property. Sergeant Davis testified that after he knocked
         at the door, [Appellant], fully clothed, looked out the
         window and saw him. Sergeant Davis shined his flashlight
         in [Appellant’s] face, identified himself, and told [Appellant]
         to open the door. [Appellant] then stepped back from the
         window and Sergeant Davis could see him fleeing to the
         second floor of the property. The police officers continued
         to bang loudly on the front door and then opened the living
         room window and yelled, “Police! Come on down! After
         approximately 5 minutes, [Appellant] returned downstairs
         and opened the door. [Appellant’s] knowledge that he was
         wanted by police could be inferred from the fact that
         [Appellant] was not at his own home yet still seemed aware
         that the police were there to arrest him and not another
         occupant, as demonstrated by the fact that he ran upstairs
         and concealed himself for several minutes before deciding
         to surrender. Therefore, this Court properly determined
         that the Commonwealth presented sufficient evidence to
         warrant a consciousness of guilt/flight charge to the jury.

Trial Court Opinion, 6/26/18, at 17-18.

      Our review of the record supports the trial court’s conclusion.         In

addition, we note that, when giving the consciousness of guilt/flight

instruction, the trial court specifically informed the jury of the limited use of

this evidence:




                                     - 15 -
J-A09014-19


              There was evidence, including the testimony of Sergeant
           Davis, that tended to show that Defendant Kamara hid from
           the police -- hid or fled from the police. The credibility,
           weight, and effect of this evidence is for you to
           decide.

              Generally speaking, when a crime is being committed
           and a person thinks he is or may be accused of committing
           it and he flees or conceals himself, such flight or
           concealment is a circumstance tending to prove the person
           is consciousness of guilt. Such flight or concealment
           does not necessarily show consciousness of guilt in
           every case. A person may flea or hide for some other
           motive and may do so even though innocent.

               Whether the evidence of flight or concealment in this
           case should be looked at as tending to prove guilt, depends
           upon the facts and circumstances of this case and,
           especially, upon the motives that may have prompted the
           flight or concealment.

             You may not find Defendant Kamara guilty solely
           based on the basis of flight or concealment.

N.T., 3/28/17, 39-40 (emphasis added).

         This instruction makes clear that the jury was free to reject any

conclusion that Appellant fled the police or that he exhibited consciousness of

guilt if he did. Accordingly, we discern no abuse of discretion on the part of

the trial court in giving the above instruction. Appellant’s third issue therefore

fails.

         In his last issue, Appellant argues that the trial court improperly

concluded that the jury found him guilty of conspiracy to commit aggravated

assault instead of conspiracy to commit murder, and sentenced him for that

conviction. We agree the trial court erred in this conclusion.




                                     - 16 -
J-A09014-19



     The jury convicted Appellant of criminal conspiracy but failed to indicate

on the verdict sheet whether the object of the conspiracy was aggravated

assault or murder. At sentencing, in support of the conclusion that the jury

found Appellant guilty of conspiracy to commit aggravated assault, the trial

court stated:

        In our case the jury found the co-defendant guilty of
        aggravated assault. So the conspiracy in this case goes to
        the aggravated assault. Because the conspiracy in this case
        goes to the aggravated assault it does not merge and it’s
        not required to merge with attempted murder. That’s what
        the case law says.

        So I find the jury’s decision on the conspiracy relates to
        aggravated assault as the other co-defendant was found
        guilty of that. So the conspiracy in this case goes to the
        aggravated assault.      Therefore, [Appellant] can be
        sentenced separately on all the counts.

N.T., 6/9/17, 66-67.

     The trial court further explained its rationale in its Rule 1925(a) opinion:

            In the case at bar, [Appellant] was convicted of, inter
        alia, attempted murder, aggravated assault, and
        conspiracy. His co-defendant Crenshaw was convicted of,
        inter alia, aggravated assault and conspiracy. The jury
        found Crenshaw not guilty of attempted murder. Thus, it is
        logical to conclude that the conspiracy was related to the
        aggravated assault, not the attempted murder, as
        conspiracy and aggravated assault are the crimes of which
        both defendants were found guilty. As attempted murder
        and conspiracy to commit aggravated assault do not merge,
        this Court properly sentenced [Appellant] to separate
        sentences on each count.

           [Appellant] argues that this was an “ambiguous verdict,”
        because the jury “rendered a general verdict on the charge
        of conspiracy” and that [Appellant] must therefore receive
        the benefit of an ambiguous verdict and the charges should

                                    - 17 -
J-A09014-19


         merge for purposes of sentencing. This claim is without
         merit. All of the facts indicate that the conspiracy was
         attached to the aggravated assault charge as the jury found
         both defendants guilty of this crime. Only [Appellant] was
         found guilty of attempted murder. It would make no sense
         for the jury to find that Crenshaw conspired with [Appellant]
         to commit murder but then find Crenshaw not guilty of
         attempted murder but guilty of aggravated assault. The
         jury’s verdict was not ambiguous and [Appellant] is not
         entitled to any benefit therefrom.

Trial Court Opinion, 8/26/18, at 19 (emphasis in original).

      Although the trial court’s logic is sound, its conclusion is not supported

by Pennsylvania case law. This Court has held that “it is impossible to draw

specific conclusions from a general verdict: When a general verdict is

rendered, knowledge of the basis of the decision rests only with the jury itself.

Therefore, it is impossible, not to mention improper, to draw specific

conclusions from a general verdict. Commonwealth v. Riley, 811 A.2d 610,

619 (Pa. Super. 2002).

      In Commonwealth v. Kelly, 78 A.3d 1136 (Pa. Super. 203), a panel

of this Court reviewed an issue analogous to the one at bar. In Kelly, a jury

convicted Kelly in absentia of attempted murder, aggravated assault, and

firearm violations.   The jury also found him guilty of a general charge of

criminal conspiracy. Kelly, 78 A.3d at 1138. In addition to an aggregate 18-

37-year sentence for the former convictions, the trial court imposed a

concurrent 10-20-year sentence for conspiracy. As in this case, the jury did

not identify which crime—attempted murder or aggravated assault—was

found to be the object of the conspiracy.


                                     - 18 -
J-A09014-19



       Citing Riley, supra, this Court stated that Kelly “must be given the

benefit of the jury’s ambiguous verdict.” Kelly, 78 A.3d at 1146. We then

explained:

          Instantly, the benefit [to Kelly] would derive from
          concluding that the conspiracy verdict was for conspiracy to
          commit murder and not conspiracy to commit aggravated
          assault, since the former charge would automatically merge
          with attempted murder. Phrased differently, construing the
          verdict as conspiracy to commit aggravated assault could
          have allowed the court to sentence [Kelly] consecutively for
          that crime and attempted murder[.]

Kelly, 78 A.3d at 1146.

       Here, the general conspiracy verdict rendered by the jury entitled

Appellant to the same benefit as found in Kelly. Appellant, however, did not

receive it. Rather, despite the jury’s ambiguous general conspiracy verdict,

the trial court imposed a consecutive sentence for conspiracy as predicted by

Kelly. Thus, in accordance with Riley and Kelly, we agree with Appellant

that the trial court erred in attempting to interpret the jury’s verdict based on

his co-defendant’s acquittal of attempted murder.7 Because the jury’s verdict

is ambiguous, Appellant is entitled to the benefit of such ambiguity.

Accordingly, we vacate Appellant’s judgment of sentence for his conspiracy

conviction.




____________________________________________


7 Although Kelly did not involve a co-defendant, the trial court cites no case
law that permits it to rectify the ambiguity in Appellant’s conspiracy verdict by
references to the charges for which the co-defendant was convicted.

                                          - 19 -
J-A09014-19



      In sum, we find that the trial court did not abuse its discretion in issuing

exclusion orders during Pritchette’s and Bivens’ testimony because the

Commonwealth presented sufficient evidence of witness intimidation and the

trial court took measures to limit the infringement on the right to a public trial

in both scope and duration.    We also find that the court did not err or abuse

its discretion in permitting Sergeant Davis’ testimony pertaining to Appellant’s

accent.    Additionally, the trial court committed no error in issuing a flight

instruction to the jury. We therefore affirm Appellant’s convictions.

      However, the trial court erred in concluding that Appellant was guilty of

conspiracy to commit aggravated assault when the jury issued a general

verdict.    We therefore vacate Appellant’s judgment of sentence for his

conspiracy conviction.     Because this result may disturb the trial court’s

sentencing scheme, we vacate Appellant’s entire judgment of sentence and

remand for resentencing.      See Commonwealth v. Goldhammer, 517 A.2d

1280, 1283 (stating generally if appellate court upsets sentencing scheme,

then a remand for resentencing is warranted).

      Convictions affirmed. Judgment of sentence vacated. Case remanded

for resentencing. Jurisdiction relinquished.




                                     - 20 -
J-A09014-19




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/7/19




                          - 21 -
