J-S77024-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

SHANTE BRUCE RICE,

                            Appellant                   No. 48 MDA 2016


          Appeal from the Judgment of Sentence December 16, 2014
             in the Court of Common Pleas of Cumberland County
               Criminal Division at No.: CP-21-CR-0003481-2012


BEFORE: PANELLA, J., OLSON, J., and PLATT, J.*

CONCURRING AND DISSENTING MEMORANDUM BY PLATT, J.:

                                               FILED:      MAY     2,     2017




        I respectfully concur in part and dissent in part.   I concur with the

learned Majority’s affirmance of judgment of sentence.           However, I am

compelled to dissent from the Majority’s vacation of Appellant’s conviction

and sentence for criminal conspiracy to commit second-degree murder.         I

agree with the reasoning of the learned trial court, that the outcome of this

issue is controlled by the holding of our Supreme Court in Commonwealth

v. Weimer, 977 A.2d 1103 (Pa. 2009). (See Trial Court Opinion, 5/05/16,

at 16). The Weimer Court held, in pertinent part:
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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       One may certainly be convicted of conspiracy to commit
       homicide, and the jury’s decision to convict of murder in the
       third degree does not render the preexisting conspiracy a
       nonentity.

             Put another way, the ultimate gradation of the crime
       accomplished does not in and of itself delimit the degree of crime
       originally planned─the crime ultimately accomplished does not
       retroactively limit the scope of the original conspiracy. A jury’s
       determination of the degree of homicide accomplished does not
       limit the conspiracy’s scope.        If appellant conspired to
       intentionally, knowingly, recklessly, or negligently cause the
       death of [the victim], she may be found guilty regardless of
       which of those adverbs are found or not found by the jury.

Id. at 1105.1      See Commonwealth v. Fisher, 80 A.3d 1186, 1195 (Pa.

2013) (holding conspiracy to commit third degree murder is cognizable

offense); see also Roebuck, supra at 624 (conviction for murder of third

degree supportable under complicity theory where Commonwealth proves

accomplice acted with culpable mental state required of a principal actor,

namely, malice).2 I would affirm the judgment of sentence in its entirety.

       Accordingly, I respectfully concur in part and dissent in part.

____________________________________________


1
   Similarly, in my view, the Majority’s reliance on Commonwealth v.
Geathers, 847 A.2d 730, 734 (Pa. Super. 2004) is misplaced. (See
Majority, at **22-23 n.6). “[C]onspiracy, attempt, and complicity are
distinct legal principles with different requirements for mental culpability.”
Commonwealth v. Roebuck, 32 A.3d 613, 622 (Pa. 2011) (citation
omitted).
2
  Accord, Commonwealth v. Nunez, 459 A.2d 376, 376 (Pa. Super. 1983)
(holding evidence sufficient to affirm both second-degree murder and
conspiracy to murder convictions).




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