J-S38027-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellee

                       v.

JOSEPH S. EMEL

                            Appellant                No. 1923 MDA 2014


     Appeal from the Judgment of Sentence entered September 4, 2014
               In the Court of Common Pleas of Clinton County
              Criminal Division at No: CP-18-CR-0000133-2014


BEFORE: WECHT, STABILE, and MUSMANNO, JJ.

MEMORANDUM BY STABILE, J.:                            FILED JULY 20, 2015

       Appellant, Joseph S. Emel, appeals from the judgment of sentence1

entered for his conviction of criminal conspiracy.    Appellant contends the

trial court violated his due process rights in sentencing him to a crime with

which he was not charged. After review, we affirm.



____________________________________________


1
  The trial court imposed sentence on September 4, 2014. Appellant filed a
timely post-sentence motion. In response, the trial court vacated the
judgment of sentence, even though Rule 720 provides, “[t]he judge shall
not vacate sentence pending decision on the post-sentence motion, but
shall decide the motion as provided in this paragraph.”      Pa.R.Crim.P.
720(B)(3) (emphasis added). The trial court’s ultra vires vacatur of the
judgment of sentence is a legal nullity. Because of the breakdown in the
operation of the court, we will construe the trial court’s “sentence” re-
imposed on October 28, 2014, as an order denying Appellant’s post-
sentence motion.
J-S38027-15



        Appellant was an inmate at the Clinton County Correctional Facility.

He and other inmates, including his son, accused a corrections officer of

exposing his penis to them. After investigation, authorities determined the

inmates had contrived to submit a false accusation.                    Police charged

Appellant and his cohorts with several crimes of false reporting. The exact

charges lodged against Appellant changed several times before trial.

Following the Commonwealth’s filing of a second amended information, the

charges were: (1) solicitation to commit false reports to law enforcement

authorities;2 (2) false reports to law enforcement authorities;3 (3 and 4)

unsworn falsification to authorities;4 and (5 and 6) conspiracy to commit

unsworn falsification to authorities.5

        Following the close of the Commonwealth’s case, the trial court denied

Appellant’s motion for judgment of acquittal. It then conferred with counsel

regarding the jury instructions and verdict slip.           Appellant’s counsel noted

that the Commonwealth essentially alleged two acts of falsity: the false

internal grievance to prison authorities and the submission of false

statements     to   the    Pine   Creek        Township   Police   Department,   which


____________________________________________


2
    18 Pa.C.S.A. § 902(a)
3
    18 Pa.C.S.A. § 4906(a).
4
    18 Pa.C.S.A. § 4904(a)(1) and (2).
5
    18 Pa.C.S.A. § 903(a).



                                           -2-
J-S38027-15



investigated the internal grievance.      During the colloquy, the following

occurred:

      THE COURT: Well, it just seems to me that the best way to
      submit this is one count of unsworn falsifications that the
      [Appellant] did, and one count of false reports the [Appellant]
      did, and then just a general count of conspiracy and let it go at
      that.

                                     ***

      The [jury will] have three counts: Number one, whether or not
      the [Appellant] committed unsworn falsification[s] by his report
      to the correctional facility; number two, whether he committed
      false reports by his written statement to Pine Creek Police
      Department, and three, just a general conspiracy count.

N.T. Jury Trial (Partial), 8/14/14, at 6-7 (emphasis added). Following a brief

recess, the trial court showed counsel at sidebar the verdict slip to be used.

Notwithstanding the above, the verdict slip listed count 3 as “Conspiracy to

File False Reports.” Verdict, 9/9/14 (emphasis added).        The trial court

showed both counsel the verdict slip.

      THE COURT: The [c]ourt has shown counsel the verdict slip
      which the [c]ourt proposes to use. Mr. Ryan [i.e., the
      prosecutor], any objection?

      MR. RYAN: No.

      THE COURT: Mr. Strouse[, i.e., defense counsel]?

      MR. STROUSE: No, Your Honor.

N.T. Jury Trial (Partial), 8/14/14, at 7-8 (emphasis added). On Count 3, the

trial court then charged the jury as follows:

      THE COURT: I’ve tried to simplify this for you by breaking down
      the charges into three separate categories.



                                     -3-
J-S38027-15


      Counts 1 and 2 have to do with statements made allegedly by
      the [Appellant], himself. Count 3 involves conspiracy, that is, the
      alleged discussion among all of the various players in this
      particular case. . . .

                                     ***

      Now, the third count involves the general concept of conspiracy
      that involves this entire scenario that we’ve been talking about
      to today, and that is the filing of the grievance report by the first
      gentleman and then this admission of other reports by the other
      various inmates that were part of this cell block area. The
      [Appellant] is charged with conspiracy to commit the offenses of
      false reports and unsworn falsifications which are the first
      two counts. In Pennsylvania, joining in a conspiracy or creating
      a conspiracy is itself a crime. Even if the crime that people are
      planning is not carried out, the members of the conspiracy are
      all responsible for the distinct crime of conspiracy. . . .

                                     ***

      Now, in this case, with regard to the charge of conspiracy, the
      Commonwealth alleges that the [Appellant] conspired with the
      other folks in the cell block and that they would make up a story
      about what the correctional officer did, and proceed with a
      grievance procedure and then investigation that followed the
      grievance procedure and continue to put forth false accusations
      regarding the correctional officer.

Id. at 8, 12, 13-14 (emphasis added).

      After completing its charge, the trial court asked counsel at sidebar

whether they had any objections.            Appellant did not object.         The

Commonwealth requested clarification regarding the conspiracy count, so

the trial court gave the following corrective charge:

      THE COURT: When I had typed up [sic] with regard to Count 3, I
      did put down conspiracy to file false reports, but the conspiracy
      charge refers both to filing false reports to the Pine Creek
      Township [Police Department] as well as the unsworn
      falsification to the correctional facility. So anything within the
      context of what we’ve been talking about today.


                                      -4-
J-S38027-15



Id. at 15 (emphasis added).

      The jury acquitted Appellant of false reports and unsworn falsifications,

and convicted him of conspiracy.     On September 4, 2015, the trial court

sentenced Appellant to 4 to 24 months in prison.       Appellant filed a post-

sentence motion claiming that the jury instructions were erroneous and that

the trial court improperly sentenced him for a crime with which he was never

charged. The trial court denied the post-sentence motion, see supra, note

1, and this appeal followed.

      On appeal, Appellant frames his argument as follows:

      Whether the trial court erred as a matter of law by sentencing
      [Appellant] on one count of conspiracy where the jury convicted
      Appellant on a conspiracy offense listed on the verdict slip for
      which Appellant had not been charged by the Commonwealth.

Appellant’s Brief at 8 (all-caps font removed).

      Sentencing a defendant for an uncharged crime implicates due

process.   See Commonwealth v. Sims, 919 A.2d 931, 938 (Pa. 2007).

Whether Appellant was “denied due process is a question of law. ‘As with all

questions of law, the appellate standard of review is de novo and the

appellate scope of review is plenary.’” Commonwealth v. Moody, 46 A.3d

765, 771 (Pa. Super. 2012) (quoting In re Wilson, 879 A.2d 199, 214 (Pa.

Super. 2005) (en banc)), appeal granted in part on other grounds, 79 A.3d

1093 (Pa. 2013).

      We reject Appellant’s argument for two reasons. First, he waived any

claims of error regarding the jury instructions and jury verdict slip. Second,


                                     -5-
J-S38027-15



the record does not show that Appellant was convicted of an uncharged

crime.

       To preserve an issue on appeal, a party must timely object.

Commonwealth v. Gonzalez, 112 A.3d 1232, 1240 (Pa. Super. 2015).

Appellant did not object to the verdict slip; thus, we cannot review

Appellant’s claim of error regarding it. “Trial counsel did not object to the

use of the verdict slip, and therefore this issue has been waived.”

Commonwealth v. duPont, 730 A.2d 970, 984-85 (Pa. Super. 1999).

       Similarly, we cannot review any claim of error regarding the jury

instructions. To preserve error regarding jury instructions, a defendant must

make a specific objection at trial.            Pa.R.Crim.P. 647(B); Pa.R.A.P. 302(b).

“A specific and timely objection must be made to preserve a challenge to a

particular   jury    instruction.       Failure     to   do   so   results   in   waiver.”

Commonwealth v. Charleston, 16 A.3d 505, 527 (Pa. Super. 2011)

(quoting Commonwealth v. Moury, 992 A.2d 163, 178 (Pa. Super. 2010)).

Here, Appellant raised his objection to the jury charge for the first time in a

post-sentence motion.         Therefore, he waived any claim of error to the

charge.6


____________________________________________


6
  The constitutional nature of Appellant’s contention does not vitiate the
requirement to preserve error by timely objecting. See Commonwealth v.
Strunk, 953 A.2d 577, 579, 581 (Pa. Super. 2008) (noting that even
constitutional claims may not be raised for the first time on appeal, and
holding defendant waived his claim that he was denied his Sixth Amendment
(Footnote Continued Next Page)


                                           -6-
J-S38027-15



      Second, we disagree with Appellant’s contention that the trial court

sentenced him to a crime with which he was not charged.           The flaw in

Appellant’s logic is that it conflates the substantive, inchoate crime of

conspiracy with the offenses that are the object or objects of the conspiracy.

      The Crimes Code defines conspiracy as follows:

      A person is guilty of conspiracy with another person or persons
      to commit a crime if with the intent of promoting or facilitating
      its commission he:

          (1) agrees with such other person or persons that they or
          one or more of them will engage in conduct which
          constitutes such crime or an attempt or solicitation to
          commit such crime; or

          (2) agrees to aid such other person or persons in the
          planning or commission of such crime or of an attempt or
          solicitation to commit such crime.

18 Pa.C.S.A. § 903(a). The elements of conspiracy are:

      (1) the defendant intended to commit or aid in the commission
      of the criminal act;[7] (2) the defendant entered into an
      agreement with another (a “co-conspirator”) to engage in the
      crime; and (3) the defendant or one or more of the other co-
                       _______________________
(Footnote Continued)

right to a fair trial by an impartial jury when he failed to request removal of
sleeping juror).
7
  Section 903 requires that the conspiracy have a criminal objective. This
clarifies the law of conspiracy, which previously extended conspiracy to any
agreement “to do any other dishonest, malicious, or unlawful act . . . .” 18
Pa.C.S.A. § 903 Official Comment – 1972 (quoting Penal Code of 1939, Act
of June 24, 1939, P.L. 872, § 302 (formerly found at 18 P.S. § 4302)); see
also Model Penal Code Commentaries pt. 1, § 5.03, at 394-97 (1985)
(explaining the purpose of the “criminal objective” requirement of Model
Penal Code § 5.03 (from which 18 Pa.C.S.A. § 903 is derived) was to narrow
the law of conspiracy).



                                            -7-
J-S38027-15


      conspirators committed an overt act in furtherance of the agreed
      upon crime.

Commonwealth v. Murphy, 844 A.2d 1228, 1238 (Pa. 2004).                       A

conspiracy is complete when one of the conspirators commits an overt act in

pursuance of the conspiracy. 18 Pa.C.S.A. § 903(e). “The overt act need

not accomplish the crime—it need only be in furtherance thereof. In fact, no

crime at all need be accomplished for the conspiracy to be committed.”

Commonwealth v. Weimer, 977 A.2d 1103, 1105-06 (Pa. 2009). In other

words, the conspiracy does not need to be successful for the conspirators to

be criminally liable.

      Because conspiracy is both an inchoate offense and a distinct,

substantive crime from the object of the conspiracy, the elements of the

underlying crime are not elements of conspiracy.       Rather, to convict, the

Commonwealth needed prove only that Appellant agreed with his fellow

inmates to commit a criminal act.     Therefore, Appellant errs in comparing

the disparate elements of false reports and unsworn falsifications.         The

record shows that the jury was charged that it could find Appellant guilty of

conspiracy based broadly on the criminal acts he and the other inmates

agreed to accomplish. The Commonwealth was not required to prove the

specific elements of the crimes that Appellant conspired to commit.

      Finally, Appellant baldly claims a violation of due process based on

alleged lack of notice and inability to prepare a defense.           Appellant,

however, fails to identify any prejudice incurred by the alleged lack of notice.

We find none.

                                     -8-
J-S38027-15



     We reject Appellant’s sole assignment of error that he was convicted of

a crime with which he was not charged. Accordingly, we affirm.

     Judgment of sentence affirmed.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/20/2015




                                   -9-
