J-S34025-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                  IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                        Appellee

                   v.

KRISTEN LYNN STRAUSSER

                        Appellant                  No. 1840 MDA 2015


         Appeal from the PCRA Order entered September 21, 2015
            In the Court of Common Pleas of Columbia County
           Criminal Division at No: CP-19-CR-0000381-2009 and
                          CP-19-CR-0000517-2009


BEFORE: PANELLA, STABILE, and JENKINS, JJ.

MEMORANDUM BY STABILE, J.:                            FILED JUNE 22, 2016

     Appellant, Kristen Lynn Strausser, appeals from the September 21,

2015 order granting in part and denying in part her petition pursuant to the

Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. We affirm.

     The record reveals that Appellant, then 31 years old, and her

boyfriend, Colton Barrett, then 18 years old, worked together at a volunteer

fire department.   They wished to create for themselves an opportunity to

fight a residential fire and perform a live rescue.    On March 16, 2009,

Appellant and Barret went out together and identified the home of 89-year-

old Raymond Belles as their target. They obtained gasoline and returned to

Belles’ home at 2 a.m. the following morning.   Barrett poured gasoline on
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Belles’ porch and garage and ignited it. He later responded to the Belles’ fire

as a firefighter. Belles escaped unharmed prior to the firefighters’ arrival.

      On May 11, 2009, Barrett set fire to the home of Ernest and Anna

Margaret Robbins without Appellant’s involvement. The Commonwealth did

not charge Appellant with any crime related to the Robbins fire. The Robbins

fire caused little damage and the Robbinses escaped without injury.

Appellant and Barrett both responded to the Robbins fire as firefighters. At

the scene of the Robbins fire, Appellant asked Barrett to set another fire.

Within hours, Barrett set fire to the home of Reuben and Pauline Albertson,

aged 84 and 77, respectively.     Barrett poured gasoline in the Albertson’s

enclosed front porch and ignited it. Both Albertsons suffered severe injuries.

They survived, albeit with lingering complications from their injuries, and

their home was destroyed.

      On January 28, 2011, a jury found Appellant guilty of multiple counts

of conspiracy (18 Pa.C.S.A. § 903), including conspiracies to commit third

degree murder (18 Pa.C.S.A. § 2502(c)), aggravated assault (18 Pa.C.S.A.

§ 2702), arson (18 Pa.C.S.A. § 3301), and burglary (18 Pa.C.S.A. § 3502).

On April 7, 2011, the trial court imposed an aggregate 17 to 34 years of

incarceration. This Court affirmed the judgment of sentence on January 3,

2013. Appellant filed this timely first PCRA petition on January 9, 2014. The

PCRA court conducted a hearing on September 16, 2015 and entered the

order on appeal on September 21, 2015. The PCRA court’s September 21,


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2015 order vacated all but two of Appellant’s conspiracy convictions—one for

the Belles fire and one for the Albertson fire.       Appellant argues there was

only one conspiracy because she and Barrett agreed to burn multiple homes.

The sole issue on appeal is whether the PCRA court erred in finding that the

Belles arson and the Albertson arson were the subject of separate

conspiracies.1

       We review the PCRA court’s order denying relief to determine whether

the PCRA court committed an error of law and whether the record supports

the PCRA court’s factual findings.         Commonwealth v. Brandon, 51 A.3d

231, 233 (Pa. Super. 2012).           “In evaluating a PCRA court’s decision, our

scope of review is limited to the findings of the PCRA court and the evidence

of record, viewed in the light most favorable to the prevailing party at the

trial level.” Id. (quoting Commonwealth v. Burkett, 5 A.3d 1260, 1267

(Pa. Super. 2010)).

       The law governing Appellant’s argument is well settled.       The Crimes

Code provides: “(c) Conspiracy with multiple criminal objectives.--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
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1
   Appellant does not identify the basis for his eligibility for relief under
§ 9543 of the PCRA. We observe that imposition of multiple sentences for
one conspiracy is prohibited by statute.              18 Pa.C.S.A. § 903(c);
Commonwealth v. Davis, 704 A.2d 650, 654-55 (Pa. Super. 1997), appeal
denied, 719 A.2d 744 (Pa. 1998), cert. denied, 525 U.S. 1026 (1998). Thus,
Appellant is eligible for relief under § 9543(a)(2)(vii).



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agreement or continuous conspiratorial relationship.” 18 Pa.C.S.A. § 903(c).

“Section 903(c) articulates a concept which is not new in American

jurisprudence, ‘The conspiracy is the crime, and that is one, however diverse

its objects.’”   Commonwealth v. Lore, 487 A.2d 841, 855 (Pa. Super.

1984) (quoting Braverman v. United States, 317 U.S. 49, 54 (1942)).

      In Commonwealth v. Barnes, 871 A.2d 812 (Pa. Super. 2005),

affirmed per curiam, 924 A.2d 1202 (Pa. 2007), the defendant and several

cohorts purchased drugs in New York City and were selling them in Scranton

over a period of several days. Id. at 815. One of the defendant’s cohorts

shot and killed a purchaser when the purchaser complained about the

quantity and quality of cocaine he received.    Id. at 816.    The defendant

removed cocaine from the victim’s hands. Id. The defendant was convicted

of three conspiracies: to commit third degree murder, robbery, and delivery

of a controlled substance. Id. at 817. Citing § 903(c), this Court wrote, “for

appellant to be convicted of three counts of conspiracy, there must be

separate agreements, or separate conspiratorial relationships, to support

each conviction.” Id. at 820.

            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.


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Id. (quoting Davis, 704 A.2d at 654).          The Barnes Court concluded the

defendant did not commit multiple conspiracy offenses. “These acts [leading

to the defendant’s convictions] occurred almost simultaneously, at one

location, the same method was employed and the same objective was

pursued.” Id. at 821.

         In Davis, the defendant and several friends, armed with a baseball

bat, sought out the victim to collect a drug debt. Davis, 704 A.2d at 650

(Pa. Super. 1997).      Ultimately, they beat the victim to death.        Id.    The

defendant was convicted of conspiracy to commit third degree murder and

conspiracy to commit robbery. Id. The defendant argued that he and his

friends had only one agreement:          to retrieve money from the victim by

force.    Id. at 654.   The Commonwealth argued that a second agreement

arose during the attack when it escalated to a murder.           Id.    This Court

concluded that the malice necessary to commit third degree murder was

subsumed       within   the   conspirators’   original   agreement,    given    their

agreement to use a baseball bat. Id.

         Instantly, the Commonwealth relies on Commonwealth v. Troop,

571 A.2d 1084 (Pa. Super. 1990), appeal denied, 584 A.2d 317 (Pa. 1990),

in which the defendant and four accomplices committed three separate

gunpoint robberies within a span of several days.             The defendant was

convicted of a separate count of conspiracy for each robbery. Id. at 1085.

The defendant argued the conspirators had a common goal for the three


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robberies: to obtain drug money. Id. at 1090. The Troop Court rejected

the defendant’s argument, reasoning that the robberies took place at

separate times and in separate places.       Id.   The record contained no

evidence of a plan that encompassed three robberies. Id.

      Similarly, in Commonwealth v. Herrick, 660 A.2d 51 (Pa. Super.

1995), appeal denied, 672 A.2d 305 (Pa. 1996), the defendant and his

associate sold drugs to a confidential informant on two consecutive days.

Id. at 53.    The defendant was convicted of two counts of conspiracy to

deliver a controlled substance.   Id.   This Court acknowledged that “there

were two drug transactions, both involving the same people, the same

location, held under similar circumstances, committed within one day of

each other.” Id. at 55. Nevertheless, “[n]either illegal transaction with [the

confidential informant] was necessarily intertwined with the other; both were

independent phenomena. [. . .] [T]he execution of one drug transaction was

not necessary for the other one to succeed.” Id. Thus, the Herrick Court

concluded each transaction was a distinct conspiracy. Id.

      Instantly, Appellant and Barrett committed two similar crimes at

different locations approximately two months apart. Appellant argues these

crimes took place in furtherance of a common plan of fighting fires inside

burning homes. Also, the crimes involved the same two coconspirators and

the same methods. The Commonwealth counters that Barrett testified that

he and Appellant contemplated setting only one fire when they went out


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together on March 16, 2009. Subsequently, Barrett set a second fire acting

alone. He set the third fire—the Albertson fire, at Appellant’s request.

      In our view, Troop and Herrick teach that the repetition of similar

crimes is not, in and of itself, evidence of a single conspiracy.          Absent

evidence that the “multiple crimes are the object of the same agreement”,

the law does not prohibit convictions for multiple conspiracies. 18 Pa.C.S.A.

§ 903(c).   Here, the record lacks evidence that the Belles fire and the

Albertson fire were the object of the same agreement. They were distinct in

time and location, and the record supports the PCRA court’s conclusion that

Appellant and Barrett did not form an agreement to commit multiple arsons.

As in Herrick, there is no interdependence between the coconspirators’

separate offenses.      Rather, Appellant and Barrett conspired to burn the

Belles home in March of 2009. When that did not achieve the desired result,

the decided to burn another home in May of 2009.          Unlike Barnes and

Davis, the record does not reflect one agreement that encompasses multiple

offenses. We discern no error in the PCRA court’s decision.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/22/2016

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