J-S70010-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                              Appellee

                        v.

LAFAYETTE MILLER,

                              Appellant                 No. 2272 EDA 2015


               Appeal from the Judgment of Sentence of June 15, 2015
                In the Court of Common Pleas of Philadelphia County
                 Criminal Division at No(s): CP-51-CR-0007177-2013

BEFORE: OLSON, OTT and MUSMANNO, JJ.

MEMORANDUM BY OLSON, J.:                         FILED NOVEMBER 03, 2016

        Appellant, Lafayette Miller, appeals from the judgment of sentence

entered on June 15, 2015, as made final by the denial of his post-sentence

motion on June 25, 2015. We affirm.

        The factual background and procedural history of this case are as

follows. On April 5, 2013, Appellant and Phonso Simmons robbed Simon Tan

(“Tan”) at gunpoint in the foyer of an apartment building owned by Tan. On

June     12,    2013,   The    Commonwealth   charged   Appellant   via   criminal

information with robbery,1 criminal conspiracy,2 burglary,3 possession of a



1
    18 Pa.C.S.A. § 3701(a)(1)(ii).
2
    18 Pa.C.S.A. § 903.
3
    18 Pa.C.S.A. § 3502(a)(1).
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firearm by a prohibited person,4 carrying a firearm without a license,5

carrying a firearm on the streets of Philadelphia,6 possessing an instrument

of crime,7 and aggravated assault.8

        On March 10, 2015, a jury found Appellant guilty of conspiracy;

however, the jury found Appellant not guilty of possessing an instrument of

crime and aggravated assault. The remaining charges were nolle prossed.9

On     June   15, 2015,      Appellant   was   sentenced   to   8½   to   20   years’

imprisonment.     On June 23, 2015, Appellant filed a post-sentence motion.

On June 25, 2015, the trial court denied the motion.            This timely appeal

followed.10

        Appellant presents one issue for our review:

        Did the trial court impose an illegal sentence by failing to
        interpret the vague [v]erdict [form] in Appellant’s favor?

Appellant’s Brief at 4.


4
    18 Pa.C.S.A. § 6105(a)(1).
5
    18 Pa.C.S.A. § 6106(a)(1).
6
    18 Pa.C.S.A. § 6108.
7
    18 Pa.C.S.A. § 907(a).
8
    18 Pa.C.S.A. § 2702(a).
9
 The trial court declared a mistrial as to the robbery and burglary charges;
however, the Commonwealth later nolle prossed those two charges.
10
  Appellant and the trial court complied with Pennsylvania Rule of Appellate
Procedure 1925.



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      In his lone issue, Appellant argues that the trial court incorrectly

graded his conspiracy conviction as a first-degree felony. He argues that the

trial court should have graded his conspiracy conviction as a first-degree

misdemeanor because the verdict form did not identify which offense

Appellant conspired to commit.      Cf. 18 Pa.C.S.A. § 905(a) (“[A]ttempt,

solicitation[,] and conspiracy are crimes of the same grade and degree as

the most serious offense which is attempted or solicited or is an object of the

conspiracy.”). Thus, according to Appellant, his conspiracy conviction must

be graded the same as the lowest graded object offense, i.e., a first-degree

misdemeanor.      The Commonwealth, on the other hand, argues that

Appellant’s claim does not relate to the legality of his sentence. Rather, the

Commonwealth argues that Appellant’s argument relates to the grading of

his conviction.    As Appellant’s statement of questions involved only

addresses the legality of his sentence, the Commonwealth argues that he

waived his lone claim included in the argument section of his brief.      See

Pa.R.A.P. 2101, 2116(a). Moreover, the Commonwealth contends that even

if Appellant preserved his claim, the trial court properly graded Appellant’s

conspiracy conviction as a first-degree felony.

      We agree with Appellant that his claim implicates the legality of his

sentence.   The Commonwealth cites Commonwealth v. Spruill, 80 A.3d

453 (Pa. 2013), in support of its argument that Appellant’s claim does not

implicate the legality of his sentence.   In Spruill, however, the defendant



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was seeking an arrest of judgment. Thus, our Supreme Court determined

that she challenged the underlying conviction, not the legality of her

sentence.   See id. at 462.   In this case, Appellant concedes that he was

lawfully convicted of conspiracy.   He argues, however, that the conviction

should not have been graded as a first-degree felony. As this Court recently

stated, “the proper grading of an offense pertains to the legality of the

sentence. . . . Our standard of review over such questions is de novo and

our scope of review is plenary.”    Commonwealth. v. Aikens, 139 A.3d

244, 245 (Pa. Super. 2016) (citations omitted).    Therefore, waiver is not

appropriate under Rules 2101 and 2116 and we proceed to consider the

merits of Appellant’s argument.

     Appellant argues that the jury’s verdict was vague because the verdict

form did not specify which offense he conspired to commit. Thus, according

to Appellant, the jury could have found him guilty of conspiring to commit a

first-degree misdemeanor offense.      Our Supreme Court, however, has

previously rejected a similar argument. In Commonwealth v. Jacobs, 39

A.3d 977 (Pa. 2012), the verdict form was similarly vague with respect to a

conspiracy conviction. The defendant in Jacobs made the same argument

that Appellant makes in this case, i.e., that the vague jury verdict must be

interpreted in the manner most favorable to the defendant. Our Supreme

Court rejected this argument and held that a trial court may consider “the

record, including the evidence, the [charging document], and the jury



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instructions” when determining what crime a jury finds as the object of a

conspiracy. Id. at 985.

      In this case, the trial court correctly concluded that the jury found

Appellant guilty of conspiring to commit robbery. Specifically, the criminal

information in this case charged Appellant with conspiracy to commit

robbery, trespass, and assault. See Criminal Information, 6/12/13, at 1-2.

During trial, the Commonwealth pursued only the charge of conspiracy to

commit robbery. This is evidenced by the assistant district attorney’s closing

argument. During argument the Commonwealth made clear that the aim of

prosecution was to convict Appellant of conspiracy to commit robbery, not

conspiracy to commit trespass or conspiracy to commit assault. See N.T.,

3/9/15, at 47, 62.      Most importantly, the jury instructions addressing

conspiracy only discussed conspiracy to commit robbery. See N.T., 3/9/15,

at 92 (Appellant “is charged with conspiracy to commit robbery.”). There is

no mention in the jury instructions of conspiracy to commit trespass or

conspiracy to commit assault.     Viewed in its entirety, the record indicates

that the jury found Appellant guilty of conspiring to commit robbery.

      Appellant relies upon this Court’s decision in Commonwealth v.

Riley, 811 A.2d 610 (Pa. Super. 2002), in support of his argument that the

trial court erred by grading his conspiracy conviction as a first-degree felony.

Riley, however, supports the trial court’s determination.     In Riley, like in

the case at bar, the defendant was charged with conspiring to commit



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several offenses. Unlike in the case at bar, however, the trial court in Riley

instructed the jury that it could find the defendant guilty of conspiring to

commit any of the object offenses listed in the criminal information. See id.

at 618 (citation omitted) (“Thus, you may find the [d]efendant guilty if you

are satisfied that he conspired with at least one alleged co-conspirator to

commit at least       one   alleged object crime[.]”).     In   view   of these

circumstances, this Court felt compelled to conclude that the trial court

lacked a basis to hold that the jury found Riley guilty of the more serious

offense of conspiracy to commit burglary because it was “impossible to tell

from the jury’s general verdict which underlying crime the jury determined

Riley conspired to commit.” Id. at 618-619. As noted above, the opposite

occurred in the case sub judice. Here, the trial court specifically instructed

the jury that it could find Appellant guilty of conspiracy only if it found that

he conspired to commit robbery. See N.T., 3/9/15, at 92. Thus, following

the same rationale that this Court applied in Riley, the trial court properly

determined that the jury convicted Appellant of conspiracy to commit

robbery.11


11
   Advancing his claims, Appellant relies exclusively on the generality of the
verdict form. Both Jacobs and Riley, however, permit the trial court to
consider other material, including jury instructions, in ascertaining the object
of a conspiracy. See Jacobs, 39 A.3d at 985 (trial court may consider, inter
alia, jury instructions in determining object of conspiracy); Riley, 811 A.2d
at 620 (general conspiracy verdict to be resolved in defendant’s favor as a
conspiracy to commit the least serious underlying offense only “in the
absence of clear evidence of the jury’s intent to the contrary”). Here, the
(Footnote Continued Next Page)


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      Appellant also argues that grading his conspiracy conviction as a first-

degree felony leads to an inconsistent verdict because the jury did not reach

a verdict on the robbery charge. This argument is without merit. “[U]nder

longstanding federal and state law, [inconsistent verdicts] are allowed to

stand so long as the evidence is sufficient to support the conviction.”

Commonwealth v. Tucker, 143 A.3d 955, 965 (Pa. Super. 2016) (citations

omitted). Thus, we may not rely upon the jury’s inability to reach a verdict

on the robbery charge when determining whether it properly convicted

Appellant of conspiracy to commit robbery.         Therefore, the trial court

properly graded the conspiracy charge the same as the object offense of

robbery, a first-degree felony. Accordingly, Appellant’s sentence is legal.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/3/2016




                       _______________________
(Footnote Continued)
jury instructions supported the trial court’s determination that the jury found
that Appellant conspired to commit robbery.



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