J-S14037-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 AQUIL JOHNSON                            :
                                          :
                   Appellant              :   No. 879 EDA 2018

          Appeal from the Judgment of Sentence March 15, 2013
 In the Court of Common Pleas of Philadelphia County Criminal Division at
                    No(s): CP-51-CR-0001587-2009

BEFORE: LAZARUS, J., NICHOLS, J., and PELLEGRINI*, J.

MEMORANDUM BY PELLEGRINI, J.:                         FILED MAY 29, 2019

     Aquil Johnson (Johnson) appeals pro se from the judgment of sentence

of 30 to 60 years’ imprisonment imposed by the Court of Common Pleas of

Philadelphia County (trial court) after a jury convicted him of Attempted

Murder, Aggravated Assault and Conspiracy. We affirm the convictions but

vacate the judgment of sentence and remand for resentencing.

                                     I.

     On September 25, 2008, Johnson and Matthew Smith (Smith) went to

the home of Michael Wilson (Wilson). Wilson let the pair inside. While all

three were walking to the living room, Johnson suddenly moved away from

Wilson. Smith then shot Wilson in the head. Johnson and Smith grabbed a

bag of marijuana off a table and fled out the backdoor. Wilson survived the

attack and called 911. The police arrested Johnson that same day but did not



____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S14037-19


apprehend Smith until over a year-and-a-half later. In the interim, Johnson

proceeded to a September 2009 jury trial that ended in a hung jury.

       After Smith was arrested, the trial court severed Johnson’s and Smith’s

cases and ordered that Smith’s trial be held before Johnson’s retrial. In May

2011, a jury acquitted Smith of all charges.        Johnson meanwhile was not

retried until January 2013.        This time, a jury convicted him of Attempted

Murder (with serious bodily injury), 18 Pa.C.S. § 901(a), Aggravated Assault,

18 Pa.C.S. § 2702(a), and Conspiracy, 18 Pa.C.S. § 903(a)(1).1 Johnson was

sentenced to serve an aggregate term of 30 to 60 years’ imprisonment. After

the denial of a post-sentence motion for modification, Johnson filed a direct

appeal but it was dismissed when appellate counsel did not file a brief.

       In July 2015, Johnson filed a pro se petition for relief under the Post

Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546, requesting, among

other relief, reinstatement of his direct appeal rights nunc pro tunc. The PCRA

court appointed Johnson counsel who filed an amended petition. In March

2018, the PCRA court reinstated Johnson’s appeal rights. Johnson now raises

various trial and sentencing issues for our review. We have reordered the

issues for ease of discussion.




____________________________________________


1 As discussed in more detail in his sentencing claims, the jury convicted
Johnson of both Conspiracy to Commit Murder and Conspiracy to Commit
Aggravated Assault.


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                                               II.

       Johnson contends that he was denied counsel from December 17, 2012,

to January 8, 2013, and that this was a critical stage in his defense for which

the deprivation of counsel cannot be harmless and requires a new trial. The

trial court found that Johnson requested to proceed pro se and voluntarily

waived his right to counsel at a Grazier hearing.2 The Commonwealth does

not adopt that reasoning and instead maintains that Johnson was not denied

counsel during a critical stage. We agree with the Commonwealth.3

                                               A.

       We first address the trial court’s analysis, which would obviate further

discussion if Johnson requested to represent himself and he knowingly,

intelligently and voluntarily waived his right to counsel. During a May 2011

pretrial hearing, Johnson expressed dissatisfaction with his appointed counsel

because of a lack of communication and counsel not filing certain motions that

he wanted filed. Based on this, Johnson requested to proceed pro se. The

trial court denied Johnson’s pro se request and continued his retrial to 2012.

Johnson’s case was subsequently relisted multiple times.        As far as the


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2 Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998) (setting forth
procedure for courts to determine on record that defendant wishing to proceed
pro se is knowingly, intelligently and voluntarily waiving right to counsel).

3This claim involves a question of law for which our standard of review is de
novo and our scope of review is plenary. See Commonwealth v. Zrncic,
131 A.3d 1008, 1011 (Pa. Super. 2016).


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certified record is concerned, Johnson never renewed his pro se request after

the May 2011 hearing.

      Despite the lack of a motion requesting to proceed pro se, the trial court

held a Grazier hearing on December 17, 2012. The transcript indicates that

Johnson was confused as to the reason for the hearing. Johnson expressed

confusion as to why he was in court and explicitly stated at the beginning of

the proceeding, “I’m telling you I never requested to represent myself in

court.” N.T., 12/17/12, at 3. The trial court correctly informed him that he

was not entitled to counsel of his choice and said Johnson would need to either

proceed with current counsel or represent himself. For unknown reasons, the

court then proceeded to conduct a Grazier colloquy. The hearing concluded

with the court ordering Johnson to represent himself with his appointed

counsel serving as stand-by counsel. On January 8, 2013, Johnson stated

that he did not want to represent himself and his appointed counsel resumed

as counsel.

      From our review of the transcript, Johnson did not intend to represent

himself but instead sought the appointment of a new attorney. The trial court

properly informed Johnson that he was not entitled to counsel of his choice

but that does not warrant conducting a Grazier hearing. Unless and until

Johnson requested to proceed pro se, the proper course was to simply inform

him that his appointed counsel would remain counsel of record.




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                                               B.

       However, the mere fact that Johnson was erroneously denied counsel

for that time period does not end the matter.4        We must still determine

whether the three-week period leading up to the retrial was a critical stage:

       As a general rule, a conviction will not be vacated for a violation
       of the Sixth Amendment right to counsel in the absence of a
       showing that the reliability of the defendant’s trial was
       undermined. However, the United States Supreme Court has
       identified several circumstances in which prejudice resulting from
       a violation of the Sixth Amendment right to counsel is presumed.
       One of these presumptively prejudicial circumstances arises when
       the accused has suffered a complete denial of counsel at a critical
       stage of trial.
____________________________________________


4 Elements of Johnson’s claim implicate trial counsel ineffectiveness, raising
the question of whether this claim may be heard on direct review. Because
Johnson is claiming that the trial court erroneously stripped him of counsel
during the three-week period, that discrete claim is properly before us.
Notwithstanding, we note that aspects of Johnson’s underlying claim raise
allegations of trial counsel ineffectiveness. See Johnson’s Brief at 34-35
(averring that the three-week period was a critical stage because counsel
would have interviewed and subpoenaed witnesses, reviewed evidence,
developed trial strategy, and prepared witnesses to testify).

As to those claims, we note that counsel could have requested a postponement
if counsel was unprepared to proceed. Johnson’s ultimate claim appears to
simply be that counsel was unprepared for trial due to Johnson representing
himself and he was prejudiced by that failure, not by being deprived of
counsel for the three-week period. Indeed, Johnson cites United States v.
Cronic, 466 U.S. 648 (1984), which sets forth a presumptive prejudice
doctrine where counsel has been denied entirely or during a critical stage. We
note that Cronic rejected a variation of the theory alleged by Johnson here.
Woods v. Donald, ––– U.S. –––, 135 S.Ct. 1372, 1377, 191 L.Ed.2d 464
(2015) (per curiam) (“In Cronic itself, we rejected the defendant’s claim that
his counsel’s lack of experience and short time for preparation warranted a
presumption of prejudice[.]”). In any event, Johnson is free to pursue claims
of ineffectiveness regarding trial counsel’s performance on collateral review.
We here address only the three-week period.


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Commonwealth v. Padilla, 80 A.3d 1238, 1253 (Pa. 2013) (internal

citations and quotations omitted).     A critical stage “is one in which the

accused’s substantive rights may be affected,” Commonwealth v. D’Amato,

856 A.2d 806, 821 (Pa. 2004), and is “characterized by an opportunity for the

exercise of judicial discretion or when certain legal rights may be lost if not

exercised at that stage.” Commonwealth v. Johnson, 828 A.2d 1009, 1014

(Pa. 2003) (citations omitted). For purposes of the Sixth Amendment, the

United States Supreme Court has observed that critical stages have been

defined “as proceedings between an individual and agents of the State

(whether formal or informal, in court or out) that amount to trial-like

confrontation[.]” Rothgery v. Gillespie County, 554 U.S. 191, 212 n.16

(2008) (internal quotations and citations omitted).

      Johnson fails to identify any critical stage at which he was denied

counsel. There were no proceedings between the December 17, 2012 hearing

and the January 8, 2013 start of jury selection.      Not only were there no

confrontational proceedings, nothing at all occurred with regard to his trial

during the three-week period and appointed counsel/stand-by counsel

represented him at trial.

                                     III.

      In his next claim, Johnson argues that the Commonwealth knowingly

presented false testimony in violation of Napue v. Illinois, 360 U.S. 264

(1959). At the retrial, Johnson testified that he was on his way to the hospital


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when he was arrested and that the police took him there. On rebuttal, the

Commonwealth recalled Detective Matthew Farley, the lead investigator, to

testify that Johnson was never taken to the hospital.          Relying on medical

records obtained after trial, Johnson maintains this was false testimony

because the records show that the police took him to the hospital on

September 28, 2008.

     The Commonwealth counters that this claim is waived because Johnson

failed to make a contemporaneous objection at trial. Pennsylvania Rule of

Evidence 103(a) states that a party may claim error in the admission of

evidence only if the party, on the record, “makes a timely objection.” Pa.R.E.

103(a). This Court has long held that “[f]ailure to raise a contemporaneous

objection   to   the   evidence   at   trial   waives   that   claim   on   appeal.”

Commonwealth v. Thoeun Tha, 64 A.3d 704, 713 (Pa. Super. 2013)

(citation omitted). Johnson argues that he did not waive this claim because

the PCRA court did not inform him of his right to file post-sentence motions,

but a post-sentence motion cannot retroactively preserve an already-waived

claim. See Pa.R.A.P. 302. Accordingly, the claim is waived.

     Even if preserved, Detective Farley’s testimony was not false.              He

testified only that Johnson was not taken to the hospital on the day he was

arrested. Based on Johnson’s own argument, Farley’s statement was factually

correct because Johnson was not taken to the hospital until three days after

he was arrested.


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                                               IV.

       Next, Johnson argues that the trial court judge should have recused

himself due to his bias as demonstrated by his comments during trial and

sentencing. The Commonwealth argues the claim is waived because it was

not raised at trial or in a timely post-sentence motion.

       Generally, “[a] party seeking recusal or disqualification [is required] to

raise the objection at the earliest possible moment, or that party will suffer

the consequences of being time barred.” Lomas v. Kravitz, 130 A.3d 107,

120 (Pa. Super. 2015) (en banc) (quotation omitted). However, “there may

be circumstances in which objections have a deleterious effect on the jury or

even on the judge whose behavior is extremely unprofessional.” Harman ex

rel. Harman v. Borah, 756 A.2d 1116, 1125 (Pa. 2000). But even in these

instances, the party must still raise recusal in a post-trial motion. See id. at

1126 (“[T]he general rule remains that a party waives an issue concerning

perceived trial court error, if the party fails both to preserve the issue with a

timely and specific objection at trial and present it in post-trial motions.”).

Because Johnson never raised this claim at trial or in a post-trial motion, this

claim is waived.5

____________________________________________


5 Johnson argues this claim is not waived because the PCRA court did not
inform him of his right to file post-sentence motions nunc pro tunc. However,
when a PCRA court reinstates direct appeal rights nunc pro tunc, the petitioner
is not automatically entitled to reinstatement of his post-sentence rights nunc
pro tunc. See Commonwealth v. Liston, 977 A.2d 1089, 1090 (Pa. 2009).



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                                               V.

       Johnson also contends that Wilson’s testimony was irreparably tainted

for two reasons.      First, after Johnson’s first trial, the Philadelphia District

Attorney’s Office learned that the assistant district attorney at the first trial

had a romantic relationship with Wilson. This resulted in the Office of the

Attorney General assuming the prosecution.          Second, Wilson admitted at

Smith’s 2011 trial that in preparation of testifying, he reviewed his notes of

testimony from Johnson’s 2009 trial.

       The Commonwealth argues that this claim is waived because it was not

raised by Johnson before or at his retrial. Both of the bases for the alleged

taint would have been known to Johnson before his retrial and could have

been raised with the trial court. By failing to do this, the issue is waived. See

Pa.R.A.P. 302(a) (“Issues not raised in the lower court are waived and cannot

be raised for the first time on appeal.”).6




____________________________________________


As a result, we are limited to the post-sentence motion that was actually filed
which did not raise the issue of recusal. We note, though, that Johnson
addressed waiver in his reply brief, and the Commonwealth applied for and
was granted permission to file a surreply brief addressing waiver. Johnson
has applied for permission to file a response to that surreply brief. We find
this issue requires no further briefing and deny Johnson’s application.

6 As with his false testimony claim, a post-sentence motion would not have
retroactively preserved an already-waived issue.


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                                       VI.

      Johnson next alleges that the Commonwealth violated Brady v.

Maryland, 373 U.S. 83 (1963), by failing to turn over (1) a report about

Wilson’s relationship with the assistant district attorney and (2) any police

reports about him being treated at the hospital on September 28, 2008. The

Commonwealth responds that these claims are waived for failure to be raised

in the trial court.

      Brady claims are subject to waiver and will be so deemed if they could

have been raised in an earlier proceeding. See Commonwealth v. Pruitt,

162 A3d 394, 404 (Pa. 2017) (finding Brady claims waived when information

was known or should have been known to the defendant and could have been

raised at trial).     Here, Johnson requested and received the transcripts of

Smith’s 2011 trial when the relationship was revealed before his retrial.

Johnson knew about the relationship and was free to seek discovery about it.

Likewise, as to his own September 28, 2008 hospital trip, he is speculating

that there were police reports concerning his trip. But there is no indication

that any such reports exist, not to mention the fact that his counsel would

have been free to obtain the hospital records and present them at trial. As a

result, his Brady claims are waived.

                                       VII.

      Johnson also contends that Smith’s 2011 acquittal estopped the

Commonwealth from trying him as either an accomplice or co-conspirator of


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Smith.    This is essentially a nonmutual collateral estoppel claim meaning

Johnson seeks to rely on a prior proceeding in which he was not a party.

However, Pennsylvania courts have routinely rejected such claims when raised

in a criminal context.7

       First, as to accomplice liability, Section 306(g) of the Pennsylvania

Crimes Code states:

       (g) Prosecution of accomplice only.--An accomplice may be
       convicted on proof of the commission of the offense and of his
       complicity therein, though the person claimed to have committed
       the offense … has been acquitted.

18 Pa.C.S. § 306(g). Relying on Section 306(g), our Supreme Court held in

Commonwealth v. Brown, 375 A.2d 331 (Pa. 1977), that the acquittal of

one criminal defendant will not bar an issue from being litigated again in the

prosecution of another defendant in a separate trial, even if it involves the

same criminal episode.         See id. at 334-35 (holding trial court erred in

dismissing homicide charge against accomplice based on the acquittal of the

principal for the same killing). This Court has cited to Brown in rejecting

nonmutual collateral estoppel claims in criminal cases, emphasizing that

collateral estoppel would require issue preclusion in a criminal case only when

the defendants are the same as the parties to the prior adjudication. See,



____________________________________________


7Because the claim implicates a question of law, our standard or review is de
novo. See Commonwealth v. Vargas, 947 A.2d 777, 780 (Pa. Super.
2008).


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e.g., Commonwealth v. Rende, 485 A.2d 9 (Pa. Super. 1984) (holding

Commonwealth was not collaterally estopped from prosecuting defendant on

murder charge when accomplice was acquitted at a prior trial).

      Recognizing that Brown is still good law, Johnson attempts to

distinguish it by noting that he was tried once before Smith’s 2011 acquittal.

Although Johnson is correct he was subject to jeopardy before, collateral

estoppel still does not apply in a criminal case unless there is “both mutuality

of parties and that the previous acquittal has put the defendant in jeopardy.”

Id. at 11.   Johnson was not a party to Smith’s 2011 jury trial, the prior

adjudication that he seeks to rely. Because he was not in jeopardy in that

proceeding, his claim of collateral estoppel as to accomplice liability warrants

no relief.

      The same holds true for co-conspirator liability. In Commonwealth v.

Byrd, 417 A.2d 173 (Pa. 1980), the defendant was convicted of Conspiracy

while his alleged co-conspirator was acquitted at a later trial. On appeal, the

defendant argued that this acquittal entitled him to relief.      Although the

defendant’s claim was not premised on collateral estoppel, the Byrd Court still

found Brown instructive and held that the subsequent acquittal of the

defendant’s alleged co-conspirator did not prevent him from being convicted

of Conspiracy.   See id. at 178-79.     We considered a similar challenge in

Commonwealth v. Phillips, 601 A.2d 816 (Pa. Super. 1992), affirmed, 633

A.2d 604 (Pa. 1994), also involving the defendant being tried after the alleged


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co-conspirator was acquitted at a jury trial. Relying on Byrd, this Court held

that “the prior acquittal of a sole co-conspirator in a separate trial does not

preclude finding the subsequently tried co-conspirator guilty of conspiracy.”

Id. at 820.

      Like Brown for accomplice liability, Byrd and Phillips remain good law

for co-conspirator liability, and Johnson cites to no authority that would

preclude their application. Thus, we hold that the Commonwealth was not

collaterally estopped by Smith’s 2011 acquittal from trying Johnson as either

an accomplice or co-conspirator at his 2013 retrial.

                                     VIII.

      For his final claim of error that occurred at trial, Johnson raises a

sufficiency claim contending that Wilson’s testimony was so inconsistent and

contradictory so as to render the jury’s verdict the product of conjecture. We

agree with the Commonwealth that this is an unpreserved weight-of-the-

evidence claim. To persevere such a claim, it must be raised with the trial

court in a motion for new trial: (1) orally, on the record, at any time before

sentencing; (2) by written motion at any time before sentencing; or (3) in a

post-sentence motion.      Pa.R.Crim.P. 607(A).        Johnson never raised a

challenge to the weight of the evidence either orally or in writing at or before

sentencing. In addition, he did not file a timely post-sentence motion to raise

the issue. The claim is, therefore, waived.




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       Even if preserved, no relief is due. Johnson focuses on Wilson’s prior

statements not mentioning that he took a bag of marijuana but later stated

that Johnson and Smith took a bag of marijuana as they ran out of the home.

He argues that this was the most important issue in the case because the

Commonwealth’s theory was that he and Smith went to Wilson’s home to rob

him.8 To prevail on a challenge to the weight of the evidence, “the evidence

must be so tenuous, vague and uncertain that the verdict shocks the

conscience of the court.” Commonwealth v. Rodriguez, 174 A.3d 1130,

1140 (Pa. Super. 2017). Wilson testified that Johnson moved out of his way

so that Smith could then shoot him. Given that the theft of the marijuana was

not an element of any of the offenses, Johnson’s prior inconsistent statements

about the theft would not be significant enough to render the jury’s verdict a

mere guess.

                                               IX.

       Lastly, Johnson presents three sentencing claims for our review.     As

noted, Johnson was sentenced to an aggregate 30 to 60 years’ imprisonment.

For Attempted Murder, the court sentenced him to 20 to 40 years’

imprisonment based on a jury finding of serious bodily injury.9 The trial court

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8 Johnson also claims Wilson changed his testimony about other essential
issues about the case but does not state what those inconsistencies were.

9 In its Pa.R.A.P. 1925(a) opinion, the trial court states that Johnson’s
sentence for Attempted Murder was enhanced by using the deadly weapon



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imposed a consecutive sentence of 10 to 20 years’ imprisonment for

Conspiracy. Finally, the court determined that Aggravated Assault merged

with Attempted Murder.

       Johnson alleges multiple sentencing errors. We first address Johnson’s

claim that his sentence is illegal under 18 Pa.C.S. § 906, which states that

“[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.”10

       The confusion in this case centers on the Commonwealth’s decision to

list the goal of the criminal conspiracy as “assault/murder.”      While the

Conspiracy charge appears on the information as one count, the trial judge

submitted the offense to the jury as comprising two distinct offenses: (1)

Conspiracy to Commit Murder; and/or (2) the lesser-included Conspiracy to

Commit Aggravated Assault. The trial court imposed consecutive sentences




____________________________________________


enhancement. See 204 Pa. Code. § 303.10(a). But the deadly weapon
enhancement does not enhance the statutory maximum penalty; it enhances
the guideline sentence recommendation.

10This Court has interpreted “convicted” to mean entry of a judgment of
sentence rather than a finding of guilty by a jury. See Commonwealth v.
Grekis, 601 A.2d 1284, 1295 (Pa. Super. 1992). Thus, 18 Pa.C.S. § 906 does
not prohibit a jury from convicting a defendant of multiple inchoate crimes
designed to culminate in the same crime.




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for Attempted Murder and Conspiracy to Commit Aggravated Assault,

reasoning that the two crimes are separate.11

       The fact that the Commonwealth alleged two different theories presents

semantical difficulties as illustrated by the fact that the court instructed the

jury that the Conspiracy count was a “charge of conspiracy to commit either

murder or aggravated assault.” N.T., 1/11/13, at 68 (emphasis added). But

in the jury verdict sheet, the trial court split the Conspiracy charge into two

offenses, asking the jurors to determine Johnson’s guilt as to Conspiracy to

Commit Murder “and/or” Conspiracy to Commit Aggravated Assault. See id.

at 85.12

       Relying on Commonwealth v. Kelly, 78 A.3d 1136 (Pa. Super. 2013),

the Commonwealth argues that the trial court properly imposed a sentence

for Conspiracy to Commit Aggravated Assault because it is a distinct crime

from Murder. In Kelly, the Commonwealth charged Kelly with, among other

offenses, Attempted Murder and Conspiracy. As here, the Conspiracy charge

was set forth in the information as encompassing either a conspiracy to

commit murder and/or a conspiracy to commit aggravated assault. The jury



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11 Because Johnson’s claim pertains to the legality of sentence, our standard
of review is de novo and scope of review is plenary. See Commonwealth v.
Melvin, 172 A.3d 14, 19 (Pa. Super. 2017).

12Although not included in the certified record, we are able to determine the
contents of the jury verdict sheet based on the verdict read in court.


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was not given any special interrogatory and convicted Kelly of Attempted

Murder and Conspiracy. We sua sponte elected to address the legality of the

sentence.   Significantly, we stated that “[s]ince aggravated assault and

murder are not the same crime, 18 Pa.C.S. § 906 does not automatically apply

to the conspiracy to commit aggravated assault and attempted murder

convictions.”   Id. at 1145.   We then examined the general verdict and

concluded that Kelly must be given the benefit of the jury’s ambiguous verdict

as to Conspiracy:

      In Commonwealth v. Riley, 811 A.2d 610 (Pa. Super. 2002),
      this Court held that where the jury renders a general verdict and
      there is an absence of clear evidence of the jury’s intent, a
      defendant can only be sentenced for conspiracy to commit the less
      serious underlying offense. In this case, that would mean the
      court could only have sentenced the defendant for conspiracy to
      commit aggravated assault. The sentencing papers reflect that
      the concurrent sentence was imposed for that crime. However,
      the Riley Court also concluded that the defendant must be given
      the benefit of the jury’s ambiguous verdict. Instantly, the benefit
      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 Appellant consecutively for that
      crime and attempted murder, see Commonwealth v. Jacobs,
      39 A.3d 977 (Pa. 2012)], though it elected not to follow that path.

      While the concurrent nature of the sentences herein renders any
      vacatur academic, our Supreme Court in Jacobs, supra,
      nevertheless addressed whether it was proper to sentence a
      defendant concurrently for attempted escape and conspiracy to
      commit escape based on an alleged ambiguous verdict.
      Ultimately, the Jacobs Court concluded that the sentences were
      lawful because the jury verdict was not ambiguous and the two
      inchoate crimes were not designed to culminate in the same
      escape crime. In contrast, the evidence in this case is not

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      clear as to the jury’s intent. Therefore, we agree with the trial
      court that under the precise facts herein the sentence for
      conspiracy and attempted murder should have merged, albeit on
      different grounds. Accordingly, we vacate Appellant’s conspiracy
      sentence.

Id. at 1145–46 (footnote omitted).

      There is no dispute that “§ 906 does not automatically apply to the

conspiracy to commit aggravated assault and attempted murder convictions,”

Id. at 1145 (emphasis added).      The Commonwealth, however, apparently

interprets Kelly’s pronouncement that “aggravated assault and murder are

not the same crime” to mean that § 906 never applies to those offenses. That

interpretation is incorrect. Notably, Kelly cites Jacobs, which holds that §

906 does not apply where the acts are intended to culminate in two separate

crimes. In this respect, the facts in Kelly are quite different than this case

because there “[Kelly] and Philip Hummel approached the sixteen-year-old

victim and his girlfriend while they were sitting on the steps of the victim’s

house. Appellant opened fire as the victim pushed his girlfriend inside the

home.”     Hence, there were two potential victims and the conspiracy could

have been to kill and/or commit serious bodily injury upon one or both

persons.

      More apropos is our decision in Commonwealth v. Ford, 461 A.2d

1281 (Pa. Super. 1983), where we held that separate sentences for

Conspiracy and Attempted Murder were impermissible under § 906:

      [D]espite the Commonwealth’s argument to the contrary, we hold
      that the appellant has not waived his attack on the legality of the

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       sentence imposed for Attempted Murder, Criminal Conspiracy and
       Possession of an Instrument of Crime. See Commonwealth v.
       Smith, 499 Pa. 507, 454 A.2d 1 (1982). Thus, we find the
       appellant’s convictions for the three aforementioned inchoate
       crimes to be violative of 18 Pa.C.S.A. § 906, which provides:

       A person may not be convicted of more than one offense defined
       by this chapter for conduct designed to commit or to culminate in
       the commission of the same crime.

       All three offenses fall within the purview of Chapter 9 of the Crimes
       Code, the Chapter referred to in Section 906, and it is apparent
       from our review of the facts that the offenses were perpetrated
       with one objective in mind—the (attempted) killing of Lawrence
       Brown. Accordingly, appellant’s conviction for the three crimes
       was improper.

Id. at 1289 (some internal citations omitted).

       Here, as in Ford—and unlike Kelly—there is no question that the goal

of the conspiracy was intended to culminate in one crime: the death of Wilson.

Consequently, once the jury convicted Johnson of Conspiracy to Commit

Murder, it was also necessarily finding him guilty of Conspiracy to Commit

Aggravated Assault as a lesser-included offense and not as a distinct

substantive offense.13

       For the foregoing reasons, the trial court erred by treating Johnson’s

conviction for Conspiracy to Commit Aggravated Assault as if it was a distinct

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13 While the Commonwealth’s information charged Johnson with one count of
Conspiracy with a criminal objective of “assault/murder”, that in context
simply appears to reflect an acknowledgement that the jury might not find,
beyond a reasonable doubt, that Johnson and Smith specifically intended to
kill Wilson.




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crime designed to culminate in a different result from the Conspiracy to

Commit Murder. Accordingly, per the express terms of § 906, he cannot be

sentenced on both charges.14            We, thus, vacate Johnson’s judgment of

sentence for Conspiracy to Commit Aggravated Assault.15                   Because our

decision disrupts the trial court’s sentencing scheme, we must vacate the

entire judgment of sentence.16

       As to Johnson’s remaining sentencing claim regarding whether the

sentencing court illegally imposed a sentence for Attempted Murder, we

decline   to   address     that    issue    because   of   our   recent   decision   in

Commonwealth v. Bickerstaff, --- A.3d ---, ---, 2019 WL 850582 (Pa.

Super. filed February 22, 2019), a case decided after briefs were filed in this

appeal. That case also involved sentencing under 18 Pa.C.S. § 1102(c), which


____________________________________________


14 Our Supreme Court recently granted allowance of appeal to address
whether Conspiracy to Commit Murder and Conspiracy to Commit Aggravated
Assault can be considered separate conspiracies for 18 Pa.C.S. § 906 purposes
when the defendant’s “actions were the object of one conspiratorial agreement
and relationship[.]” Commonwealth v. King, --- A.3d ---, ---, 2019 WL
1033102 (Pa. filed March 5, 2019).

15 We note that 18 Pa.C.S. § 906 prohibits multiple sentences for inchoate
crimes designed to culminate in the same crime. It does not proscribe which
offense the court shall impose sentence on. Thus, although the trial court
cannot sentence on both Attempted Murder and Conspiracy, it retains the
discretion to choose which inchoate offense to impose sentence on.

16 Johnson argues in the alternative that Attempted Murder and Conspiracy
should have merged based on the jury because he was convicted as an
accomplice for Attempted Murder. We need not address the merits of this
claim since we have granted the same relief based on 18 Pa.C.S. § 906.


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provides that a defendant convicted of Attempted Homicide “where serious

bodily injury results may be sentenced to a term of imprisonment which shall

be fixed by the court at not more than 40 years.” If serious bodily injury did

not result, then the defendant “may be sentenced to a term of imprisonment

which shall be fixed by the court at not more than 20 years.” Consequently,

“[s]erious bodily injury is a fact that must be proven before a maximum

sentence   of   [40]   years   may   be   imposed   for   attempted   homicide.”

Commonwealth v. Barnes, 167 A.3d 110, 117 (Pa. Super. 2017). In order

for the 40-year maximum sentence to apply, the Commonwealth must provide

notice to the defendant that it seeks to prove serious bodily injury. See id.

      In Bickerstaff, we addressed a similar factual scenario, albeit in the

context of PCRA review. Bickerstaff was charged with, among other crimes,

Attempted Murder and Aggravated Assault. For the Attempted Murder charge,

neither the criminal complaint nor the information alleged serious bodily

injury. In addition, the Commonwealth did not give any pretrial notice of its

intent to prove serious bodily injury related to Attempted Murder. The first

mention of serious bodily injury as to Attempted Murder was in the jury verdict

sheet, which Bickerstaff’s counsel did not object to. The jury ultimately found

Bickerstaff guilty of Attempted Murder with serious bodily injury, which then

allowed the trial court to sentence him to 20 to 40 years’ imprisonment. This

Court affirmed the judgment of sentence on direct appeal.




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      Bickerstaff unsuccessfully sought PCRA relief.     On appeal, Bickerstaff

succeeded on his claim that trial counsel ineffectively failed to object to the

jury instructions and that the failure to object prejudiced Bickerstaff. Like this

case, there was no dispute that the victim actually suffered serious bodily

injury. Bickerstaff argued that the special jury interrogatory did not cure any

of the asserted defects and was insufficient to allow the court to enhance his

maximum sentence for Attempted Murder. We agreed:

      [T]he Commonwealth charged [Bickerstaff] with only attempted
      murder generally and did not include the element of serious bodily
      injury in the criminal complaint or information.                The
      Commonwealth also failed to put [Bickerstaff] on notice that the
      Commonwealth intended to prove attempted murder/serious
      bodily injury at trial. The Commonwealth did not prosecute
      [Bickerstaff] for attempted murder/serious bodily injury.
      Furthermore, the court did not instruct the jury on serious bodily
      injury related to the attempted murder offense. Instead, the court
      gave a jury instruction only on serious bodily injury related to
      aggravated assault. Here, [Bickerstaff] was essentially ambushed
      with the verdict sheet’s special interrogatory that raised for the
      first time a question about serious bodily injury in connection with
      attempted murder. Prior to the interrogatory, [Bickerstaff] had
      no warning that there was even an issue of serious bodily injury
      associated with attempted murder. The charges, complaint,
      information, and jury instructions for attempted murder made no
      mention of associated serious bodily injury. Absent more, this
      surprise interrogatory was not enough to put [Bickerstaff] on
      notice to defend against attempted murder/serious bodily injury.

Id. at *7 (citation omitted).

      This case is aligned with Bickerstaff in most respects but importantly

differs in that it did not analyze the claim as a pure question of law regarding

legality of sentence and instead appeared to credit the notion that counsel

could have objected. We decline to address whether that distinction warrants

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a different treatment as we have vacated judgment of sentence and remanded

for resentencing on all counts. On remand, the sentencing court may or may

not determine that Bickerstaff applies.      Alternatively, the Commonwealth

may elect to concede that Johnson would ultimately succeed in collateral

review, thus obviating the need to address this question. If not, and the trial

court imposes a maximum sentence exceeding 20 years at the Attempted

Murder conviction, Johnson retains the ability to re-raise this issue on any

appeal from the new judgment of sentence.

      Convictions affirmed. Judgement of sentence vacated. Case remanded

for resentencing. Application for Relief denied. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/29/19




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