Com. v. Johnson, A. ( 2019 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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
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* Retired Senior Judge assigned to the Superior Court.
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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.
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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.
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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
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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
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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,
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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
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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 Ҥ 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
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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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