J-S77010-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

SCOTT SCARLOTTA MEINZER

                            Appellant                  No. 267 MDA 2016


          Appeal from the Judgment of Sentence December 23, 2015
              In the Court of Common Pleas of Lancaster County
             Criminal Division at No(s): CP-36-CR-0005514-2013


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

MEMORANDUM BY PANELLA, J.                        FILED DECEMBER 09, 2016

        Appellant, Scott Scarlotta Meinzer, appeals from the judgment of

sentence entered after a jury convicted him of conspiracy to commit

burglary of an occupied residence. Meinzer contends that the sentence

imposed by the trial court is illegal, as Meinzer believes that the trial court’s

conspiracy instruction was ambiguous. We conclude that the trial court’s

instruction, viewed in context, was not ambiguous. We therefore affirm.

        Meinzer was charged with robbery, burglary, and conspiring with

Joshua Hudelson based on allegations that the two broke into an apartment

to steal a firearm, some marijuana, and cash. It is undisputed that, during

its instructions regarding the conspiracy charge to the jury, the trial court
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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did not task the jury with determining whether the apartment was occupied

at the time of the crime. See N.T., Trial, 10/7/15, at 356. The jury found

Meinzer not guilty of robbery or burglary, but convicted him of conspiracy to

commit burglary.

       At sentencing, Meinzer argued that the conspiracy conviction should be

graded as a second-degree felony, based upon his belief that the jury

instruction was ambiguous. The trial court announced that it did not believe

that Meinzer’s argument was correct, but agreed to impose sentence as if

the conviction was for a second-degree felony. The court sentenced Meinzer

to a term of imprisonment of nine to twenty-three months. The court

subsequently denied Meinzer’s post-sentence motion, and this timely appeal

followed.

       The trial court ordered Meinzer to file a concise statement of matters

complained of on appeal pursuant to Pa.R.A.P. 1925. Meinzer’s counsel filed

a statement indicating an intent to file an Anders1 brief in lieu of a concise

statement. As a result, the trial court did not author an opinion on appeal.

       However, rather than an Anders brief, Meinzer has now filed a merits

brief raising a single issue. While Meinzer acknowledges that the term of

imprisonment imposed is consistent with his belief that he was convicted of

____________________________________________


1
 Anders v. California, 386 U.S. 738 (1967). An Anders brief is filed when
appointed counsel seeks permission to withdraw their appearance in a
matter.



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a second-degree felony, he argues that it is still illegally recorded as a first-

degree felony, as the jury instructions were insufficient to render the jury’s

verdict unambiguous. This issue is a challenge to the legality of the sentence

imposed. See Jacobs, 39 A.3d at 977, 982 (Pa. 2012). It therefore cannot

be waived. See Commonwealth v. Jones, 932 A.2d 179, 182 (Pa. Super.

2007). Thus, Meinzer’s failure to include this issue in his concise statement

does not act as a waiver.

      Turning to the merits of the argument, we note that we must construe

an ambiguity in a conspiracy conviction in favor of the defendant. See

Commonwealth v. Riley, 811 A.2d 610, 620 (Pa. Super. 2002). In Riley,

      [t]he conspiracy count of the information … appears to
      encompass both underlying crimes [burglary and theft] as
      objects of the conspiracy. [The trial court’s] instructions to the
      jury accordingly permitted the jury to find Riley guilty of
      conspiracy, as a general matter, if they determined that he
      committed the crime of burglary ‘and/or’ theft.

Id., at 618. Thus, we concluded that it was unclear which crime the jury

convicted Riley of conspiring to commit. See id., at 620.

      Here, Meinzer’s conviction for conspiracy to commit burglary is not

ambiguous. The trial court instructed the jury that the alleged conspiracy

involved burglary. See N.T., Trial, 10/7/15, at 357. The only burglary at

issue was the burglary of an occupied residence. Meinzer’s defense at trial

was not that he burgled an unoccupied residence; rather, he argued that he

was not involved in this burglary. See N.T., Trial, 10/6/15, at 315-316.

Furthermore, the verdict sheet includes only a single count of burglary,

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labeled “Burglary – Person Present.” Exhibit to Defense Objections to

Sentencing Guidelines Computation. There is no indication that Meinzer

objected to the verdict sheet when it was submitted to the jury. See N.T.,

Trial, 10/7/15, at 360-363.

      There is simply no ambiguity in the jury’s verdict. The verdicts may

arguably have been inconsistent, but that is permissible under Pennsylvania

law. See Riley, 811 A.2d at 617. It is clear that the jury found Meinzer

guilty of conspiring to commit the only burglary that was before the jury. We

would be forced to imagine an alternate burglary, for which no evidence was

presented at trial, in order to accept Meinzer’s argument. As a result,

Meinzer is due no relief on appeal.

      Judgment of sentence affirmed. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/9/2016




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