Commonwealth v. King, J., Aplt.

[J-69-2019]
IN THE SUPREME COURT OF PENNSYLVANIA
EASTERN DISTRICT
SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.
COMMONWEALTH OF PENNSYLVANIA, : No. 3 EAP 2019
:
Appellee : Appeal from the Order of Superior
: Court entered on September 7,
: 2018 at No. 2883 EDA 2016,
v. : reversing and affirming the
: Judgment of Sentence entered on
: August 31, 2016 in the Court of
JIMEL KING, : Common Pleas, Philadelphia
: County, Criminal Division at No. CP-
Appellant : 51-CR-0007769-2015
:
: ARGUED: September 11, 2019
OPINION
JUSTICE DONOHUE DECIDED: July 21, 2020
We granted allowance of appeal in this matter to consider the legality of Jimel
King’s enhanced sentence for attempted murder resulting in serious bodily injury under
18 Pa.C.S. § 1102(c) when the Commonwealth failed to provide formal notice of its intent
to seek the enhancement in the charging documents. We also consider whether King’s
consecutive sentences for the two inchoate crimes of attempted murder and conspiracy,
which arose out of the same incident, were precluded by 18 Pa.C.S. §§ 903(c) and 906.1
1 Section 903(c) provides that “[i]f a person conspires to commit a number of crimes, he
is only guilty of one conspiracy so long as such multiple crimes are the object of the same
agreement or continuous conspiratorial relationship.” 18 Pa.C.S. § 903(c). Section 906
provides 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
For the reasons that follow, we affirm the judgment of sentence as to the enhanced
murder sentence, but we vacate the judgment of sentence at the conspiracy count. As
our disposition disrupts the sentencing scheme, we vacate the judgment of sentence and
remand to the Superior Court with instructions to remand for resentencing.
I. Factual and Procedural History2
On June 17, 2015, Jimel King jumped out of a vehicle driven by Ramir Porter and
fired at least nine bullets towards Arielle Banks, with one striking her ankle and another
her lower back. Banks survived, but her hip and ankle were shattered. She provided
information to the police that linked King and Porter to the crime.
On August 14, 2015, the Commonwealth filed a criminal information charging King
with attempted murder, aggravated assault, conspiracy, carrying a firearm without a
license, possession of a firearm by a person prohibited, and possessing an instrument of
crime. The attempted murder charge alleged that King “[i]ntentionally and with malice
attempted to cause the death of another human being[.]” Information, 8/14/15, at 1. The
Commonwealth provided notice of its intent to seek a mandatory minimum of at least five
years of incarceration pursuant to 42 Pa.C.S. § 9712 based on King’s possession of a
firearm while committing a crime of violence. Id. The information made no reference to
18 Pa.C.S. § 1102(c) (providing that maximum sentence for attempted murder is forty
years where serious bodily injury occurs, and twenty years otherwise).
commit or culminate in the commission of the same crime.” 18 Pa.C.S. § 906. Both
statutes are discussed more fully infra.
2 The Commonwealth filed a motion to correct an omission in the record, notifying us that
three transcripts were omitted from the certified record. We agree with the
Commonwealth that these transcripts are essential to a complete review of the issues
before us, and thus grant the motion. See Pa.R.A.P. 1926.
[J-69-2019] - 2
King rejected a plea offer of eight to twenty years of incarceration in exchange for
a plea of guilty to attempted murder, conspiracy, and possession of a firearm by a person
prohibited. The Commonwealth informed King that based on the sentencing guidelines,
the recommended minimum sentence for attempted murder was seventeen and one-half
years of incarceration, and stated that the maximum possible sentence on all charges
was eighty-seven years of incarceration.3 King’s Brief at 6. King rejected the offer and
proceeded to trial on May 24, 2016.4 King stipulated that Banks suffered a shattered
hipbone and anklebone, requiring multiple surgeries and high intensity inpatient
occupational and physical therapy. See N.T., 5/25/16, at 171-72. His defense was that
another (unknown) individual shot Banks.
Before the jury retired to deliberate, the parties reviewed and agreed to the content
and form of the verdict sheet which, in addition to listing all of the charges, contained the
following interrogatory: “Answer only [i]f you find [King] guilty of Attempted Murder. Do
you find beyond a reasonable doubt that the victim suffered serious bodily injury? YES or
NO[.]” Id. at 200; Verdict Sheet, 5/26/16, at 1. The jury found King guilty of all charges.5
3 The offense gravity score for attempted murder with serious bodily injury is fourteen.
See 204 Pa.Code § 303.15. When paired with King’s prior record score of five, the deadly
weapon enhancement/used matrix called for a recommended minimum of 210 months,
or seventeen and one-half years.
4 King proceeded to a jury trial on all charges, except possession of a firearm by a person
prohibited. Before trial, the court granted the Commonwealth’s motion to sever this
charge. See N.T., 5/23/16, at 50.
5 See 18 Pa.C.S. §§ 901, 2702(a)(1), 903, 6103(a)(1), 6108, 6105(a)(1), and 907(b),
respectively. King proceeded to a bench trial on the remaining firearm charge and was
found guilty. See N.T., 5/27/16, at 14-18.
[J-69-2019] - 3
The jury also concluded that Banks suffered serious bodily injury as a result of King’s
attempted murder. See Verdict Sheet at 1.
King was originally sentenced to consecutive terms of imprisonment of twenty to
forty years for attempted murder, ten to twenty years for conspiracy to commit murder,
and five to ten years for possession of a firearm by a person prohibited. N.T., 8/31/16, at
31-32. King also received concurrent terms of five years of probation for carrying a
firearm without a license and carrying a firearm on public streets in Philadelphia. Id. The
court merged aggravated assault with attempted murder and imposed no further penalty
on the remaining convictions. Id. The trial court issued a written sentencing order later
that day, correcting King’s sentence of ten to twenty years of incarceration for conspiracy
to commit murder to no further penalty, instead imposing that same term for conspiracy
to commit aggravated assault. Corrected Sentencing Order, 8/31/2016, at 1. King filed
a post-sentence motion raising several claims not pertinent to the instant appeal, which
was denied.
King appealed to the Superior Court, arguing that his sentence for attempted
murder was illegal because the Commonwealth never charged “attempted murder
causing serious bodily injury” or provided formal notice that it intended to seek the
enhanced sentence under Section 1102(c). See Pa.R.A.P. 1925(b) Statement, 4/13/17,
at 2-3. As previously noted, the maximum sentence for attempted murder where the
victim did not suffer serious bodily injury6 is twenty years. Hence, according to King, the
failure to properly charge attempted murder resulted in an illegal sentence.
6 “Serious bodily injury” is defined as “[b]odily injury which creates a substantial risk of
death or which causes serious, permanent disfigurement, or protracted loss or impairment
[J-69-2019] - 4
The trial court recognized that the charging documents failed to specifically allege
attempted murder causing serious bodily injury or reference Section 1102(c), but
nonetheless rejected King’s claim. Trial Court Opinion, 5/15/17, at 15. In reaching this
conclusion, the trial court relied primarily on Commonwealth v. Johnson, 910 A.2d 60 (Pa.
Super. 2006). Id. Johnson was convicted of attempted murder generally and received a
sentence of seventeen and one-half to forty years of incarceration under Section 1102(c).
Johnson, 910 A.2d at 63. The Superior Court vacated Johnson’s sentence based on the
United States Supreme Court’s decision in Apprendi v. New Jersey, 530 U.S. 466 (2000)
(holding “any fact that increases the penalty for a crime beyond the statutory maximum
must be submitted to a jury and proved beyond a reasonable doubt”). Id. at 67-68. The
panel based its decision on three findings. First, the Commonwealth did not charge
Johnson with attempted murder causing serious bodily injury. Id. at 67. Second, the
Commonwealth did not provide notice that it intended to prove serious bodily injury at trial
or seek an enhanced penalty. Id. Finally, the jury never found serious bodily injury in the
context of attempted murder, although it did find serious bodily injury with respect to
aggravated assault. Id. Accordingly, Johnson’s maximum permissible sentence was
twenty years because the jury’s verdict was “limited to a finding of guilt on the crime of
attempted murder generally[.]” Id. at 68.
The trial court distinguished Johnson from the instant case, reasoning that the
dispositive fact in Johnson was the failure to present the question of serious bodily injury
to the jury, resulting in an Apprendi violation. Trial Court Opinion, 5/15/17, at 15. The
of the function of any bodily member or organ.” 18 Pa.C.S. § 2301. There is no dispute
that the stipulated injuries met this definition.
[J-69-2019] - 5
trial court then concluded that the other two factors highlighted in Johnson were dicta. Id.
The trial court ultimately concluded that King’s sentence was proper in light of the special
interrogatory, the description of the incident in the indictment, and testimony presented at
the grand jury hearing. Id. The trial court also noted that the Commonwealth’s opening
statement discussed serious bodily injury, albeit in the context of aggravated assault. Id.
Accordingly, the trial court found King’s sentence for attempted murder causing serious
bodily injury permissible in this case. Id. at 16.
In an unpublished memorandum decision the Superior Court reversed King’s
conviction for carrying a firearm on public streets in Philadelphia, but otherwise affirmed
the judgment of sentence.7 Commonwealth v. King, 2883 EDA 2016, 2018 WL 4271212
(Pa. Super. Sept. 7, 2018). In addition to his Apprendi claim, King argued for the first time
on appeal that the trial court illegally imposed consecutive sentences for attempted
murder and conspiracy to commit murder in violation of Sections 903 and 906. According
to King, his convictions for conspiracy to commit murder, conspiracy to commit
aggravated assault, and attempted murder were all the result of conduct designed to
commit or culminate in the commission of the same offense, specifically murder.
Before addressing King’s claims, the panel explained that legality of sentencing
claims involve questions of law for which the standard of review is de novo and the scope
of review is plenary. See King, 2883 EDA 2016 at 3 (citing Commonwealth v. Barnes,
7 The Superior Court reversed King’s conviction for carrying a firearm on public streets
in Philadelphia because “neither the indictment nor the [ ] information indicated that the
shooting had taken place on public streets in Philadelphia, and while the Commonwealth
requested that [King] be arraigned on [this] charge, the court did not so arraign him.” King,
2883 EDA 2016 at 7. Because King’s sentence for this offense was concurrent to a
lawfully imposed sentence of the same length, however, the panel did not remand for
resentencing. Id.
[J-69-2019] - 6
167 A.3d 110, 116 (Pa. Super. 2017) (en banc)). The panel also recognized that
challenges implicating the legality of sentencing are not subject to waiver and may be
raised for the first time on appeal. Id. (citing Commonwealth v. Berry, 877 A.2d 479, 482
(Pa. Super. 2005)).
In addressing the Apprendi claim, the panel first noted that serious bodily injury
resulting from attempted murder is a fact that must be proven prior to imposing the
enhanced sentence. Id. (citing Commonwealth v. Johnson, 910 A.2d 60, 66-67 (Pa.
Super. 2006)). The panel also explained that the Commonwealth must place an offender
on notice where it intends to seek the forty-year maximum sentence under Section
1102(c). Id. The court examined Commonwealth v. Reid, 867 A.2d 1280, 1281 (Pa.
Super. 2005), wherein Reid pleaded nolo contendere to attempted murder for stabbing
the victim eleven times before slashing the victim’s throat. Id. at 1280-81. The criminal
information “did not explicitly state that the victim suffered ‘serious bodily injury’ using
those precise words[.]” Id. at 1281. The court conducted a colloquy and imposed a
sentence of eighteen to forty years of incarceration for attempted murder. Id. at 1281.
On appeal, Reid argued that the failure to provide notice of intent to seek the enhanced
sentence violated Apprendi. Id. The Reid Court disagreed, explaining that Reid “agreed
to the Commonwealth’s recitation of the facts underlying the charge of [attempted
murder], including the fact that the victim was stabbed eleven times and her throat was
slashed.” Id. at 1285. Additionally, Reid was charged with attempted murder as a felony
of the first degree and explicitly acknowledged during the colloquy that he could face a
maximum sentence of forty years of incarceration, available only where the
Commonwealth seeks an enhanced sentence. Id. The court therefore rejected any
[J-69-2019] - 7
assertion “that [Reid] was surprised at sentencing or that the trial court imposed a
sentence in violation of Apprendi[.]” Accordingly, the court affirmed Reid’s judgment of
sentence. Id.
The panel also discussed Barnes. Barnes was convicted of attempted murder and
sentenced to twenty to forty years of incarceration pursuant to Section 1102(c). 167 A.3d
at 115. On appeal, Barnes challenged that sentence based on the failure to present the
question of serious bodily injury to the jury. Id. at 116. The Superior Court vacated
Barnes’ sentence, noting that Barnes had not been charged with attempted murder
resulting in serious bodily injury; that serious bodily injury was not alleged in either the
complaint or the information; that the jury was not instructed to find serious bodily injury
with respect to attempted murder; and that the verdict sheet did not reference serious
bodily injury related to the attempted murder charge. Id. at 117-18. Similar to the
circumstances in Johnson, the court concluded that the jury’s finding of serious bodily
injury with respect to aggravated assault “could not be used to infer that the jury found
serious bodily injury for the attempted murder charge.” Id. at 119 (citing Johnson, 910
A.2d at 68 n.10) (additional citations omitted)).
In light of these decisions, the panel concluded that King received sufficient notice
of the Commonwealth’s intent to seek the enhanced sentence for attempted murder
resulting in serious bodily injury under Section 1102(c). King, 2883 EDA 2016, at 6. The
court explained that the indictment averred King had shot Banks multiple times and the
information charged King with attempted murder as a felony of the first degree. Id. at 4-
5. The Commonwealth also informed King prior to trial that the low end of the sentencing
guidelines for attempted murder was seventeen and one-half years, indicating that it
[J-69-2019] - 8
would seek the maximum sentence of forty years. Id. at 5. The court also noted that,
despite not being instructed on serious bodily injury in the context of attempted murder,
the jury was instructed on serious bodily injury with respect to aggravated assault. Id.
Lastly, the verdict slip specifically asked the jury to determine whether King caused
serious bodily injury in connection with attempted murder, which it answered affirmatively.
Id. The court thus concluded that King’s sentence was permissible. Id. at 6.8
The court next rejected King’s claim that the corrected sentence, imposing ten to
twenty years of incarceration for conspiracy to commit aggravated assault, was illegal.
King asserted that Sections 906 and 903(c), when read together, prohibit findings of guilt
for multiple conspiracies where the crimes were the object of the same conspiratorial
agreement and designed to culminate in the commission of the same crime. Id. The
court disagreed, noting that King was properly sentenced for conspiracy to commit
aggravated assault and attempted murder because each crime requires an additional
element that the other does not. Id. (citing Commonwealth v. Kelly, 78 A.3d 1136, 1144-
1145 (Pa. Super. 2013)). Attempted murder requires the specific intent to kill, whereas
conspiracy to commit aggravated assault requires an agreement. Id. Accordingly, the
court concluded that these offenses are not designed to culminate in the commission of
the same crime of murder. Id.
8 In a footnote, the Superior Court rejected King’s contention that his sentence for
attempted murder was improper in light of United States v. Alleyne, 133 S. Ct. 2151
(2013), and Commonwealth v. Hopkins, 117 A.3d 247, 258-262 (Pa. 2015), because the
Commonwealth failed to provide formal notice of a “new aggravated offense.” The court
reasoned that both Alleyne and Hopkins were inapposite because, unlike the statutes in
those cases, Section 1102(c) is not a mandatory minimum sentence. King, 2883 EDA
2016, at 13 n.3.
[J-69-2019] - 9
King filed a petition for allowance of appeal and we granted review of the following
questions:
a. Did not the Superior Court err and deny [King] due process
and Sixth Amendment rights in holding that the
Commonwealth need not provide formal notice to a defendant
when seeking to prosecute him for an aggravated offense,
specifically the 40-year maximum sentence authorized under
18 Pa.C.S.A. §1102(c)?
b. Did not the Superior Court err and conflate 18 Pa.C.S.[]
§§ 906 and 903(c) in holding that conspiracy to commit
murder and conspiracy to commit aggravated assault are
separate conspiracies, where [King’s] actions were the object
of one conspiratorial agreement and relationship, pursuant to
§ 903(c), and where [King] was, therefore, subject to an illegal
sentence contrary to the prohibition under § 906 against
multiple convictions for more than one inchoate offense?
Commonwealth v. King, 203 A.3d 973 (Pa. 2019).
II. Enhanced Sentence for Attempted Murder
A. The Arguments of the Parties
King first asserts that the Due Process Clause of the Fifth and Fourteenth
Amendments to the United States Constitution, as well as the notice and jury
requirements of the Sixth Amendment, require the Commonwealth to provide formal
notice, in either the indictment or information, when it intends to seek the enhanced
maximum sentence of forty years of imprisonment for attempted murder causing serious
bodily injury under Section 1102(c). King’s Brief at 15-16 (citing Apprendi, 530 U.S. at
490). He claims that the Commonwealth’s failure to provide such notice in this case
resulted in an illegal sentence. Id. King further maintains that the notice requirement was
not remedied by the inclusion of a special interrogatory on the verdict sheet. Id. at 17-18
(citing Hopkins, 117 A.3d at 260). Moreover, the trial court’s failure to instruct the jury on
[J-69-2019] - 10
serious bodily injury in the context of attempted murder was not cured by its instruction
on serious bodily injury with regard to aggravated assault. Id. at 18.
King relies on Barnes to argue there are three conditions that must be met before
an enhanced sentence under Section 1102(c) may be imposed. Id. at 19 (citing Barnes,
167 A.3d at 117). The defendant must be charged with attempted murder causing serious
bodily injury, placed on notice that the Commonwealth intends to prove serious bodily
injury or seek the enhanced sentence, and the jury must find serious bodily injury with
respect to the charge of attempted murder. Id. at 19-20 (citing Barnes, 167 A.3d at 117
(citation omitted)). King maintains that absent formal notice, an offender would be left to
deduce the Commonwealth’s intent to seek an enhanced sentence from the attendant
circumstances. Id. at 21. King also cites this Court’s decisions in Commonwealth v.
Hopkins, 117 A.3d 247 (Pa. 2015) and Commonwealth v. Wolfe, 140 A.3d 651 (Pa. 2016),
to argue that facts increasing the statutory maximum for an offense must be clearly stated
in the charging documents as an element of the offense, thereby enabling the defendant
to predict the corresponding penalty. King’s Brief at 17, 21.
King maintains that the Superior Court recently “reaffirmed” the notice requirement
with regard to Section 1102(c) in Commonwealth v. Bickerstaff, 204 A.3d 988 (Pa. Super.
2019). King’s Brief at 21-22. In Bickerstaff, the Superior Court found counsel ineffective
for failing to “protect [Bickerstaff] from the sentence enhancement for attempted murder[
] [causing] serious bodily injury.” Bickerstaff, 204 A.3d at 997-98. Bickerstaff received no
notice that the Commonwealth intended to seek an enhanced sentence for attempted
murder pursuant to Section 1102(c), but was rather “ambushed” with a special
interrogatory regarding serious bodily injury with respect to attempted murder on the
[J-69-2019] - 11
verdict sheet. Id. at 997. The court concluded that “[a]bsent more, this surprise
interrogatory was not enough to put [Bickerstaff] on notice to defend against attempted
murder[ ] [causing] serious bodily injury.” Id.9
9 King raises an additional argument claiming that the failure to provide formal notice with
respect to attempted murder resulting in serious bodily injury resulted in the trial court
lacking subject matter jurisdiction to adjudicate the case. King’s Brief at 23 (citing
Commonwealth v. Little, 314 A.2d 270, 273 (Pa. 1974) (“The right to formal notice of
charges . . . is so basic to the fairness of subsequent proceedings that it cannot be waived
even if the defendant voluntarily submits to the jurisdiction of the court.”)).
In Little, a coroner acted as a magistrate and held a preliminary hearing on murder
charges. Little was then indicted by a grand jury and he entered a general guilty plea. In
collateral proceedings the trial court sua sponte declared that discharge was required
because, inter alia, “the absence of a criminal complaint from the record voided all
subsequent proceedings[.]” Id. at 272. We stated that the court’s competence to try the
case was beyond question. “But to invoke this jurisdiction, something more is required;
it is necessary that the Commonwealth confront the defendant with a formal and specific
accusation of the crimes charged.” Id. at 272–73. Formal notice, we said, “is so basic to
the fairness of subsequent proceedings that it cannot be waived even if the defendant
voluntarily submits to the jurisdiction of the court.” Id. at 273 (citing Albrecht v. United
States, 273 U.S. 1 (1927) and Commonwealth ex rel. Fagan v. Francies, 53 Pa. Super.
278, 1913 WL 4670 (Pa. Super. 1913)). We ultimately held that formal notice was met
by the grand jury’s indictment.
Little offers no relief as the Apprendi violation herein would, at most, deprive the court of
the ability to sentence King to an enhanced sentence. It would not divest the trial court
of the jurisdiction to sentence King for the unenhanced attempted murder charge of which
he plainly had formal notice. That King requests a remand for resentencing and not
discharge establishes that there is no subject matter jurisdiction issue.
Moreover, the continuing validity of Little’s statement that formal notice is a component of
subject matter jurisdiction is suspect. We note that the United States Supreme Court later
expressly disavowed that same view as a matter of federal law. United States v. Cotton,
535 U.S. 625, 631 (2002) (“Insofar as it held that a defective indictment deprives a court
of jurisdiction, [Ex Parte] Bain[, 121 U.S. 1 (1887)] is overruled.”). Bain, in turn, was cited
in Albrecht while the Commonwealth ex rel. Fagan case cited Bain. The Little Court found
that formal notice was a component of subject matter jurisdiction under both the United
States and Pennsylvania constitutions, but as noted Cotton disavowed the notion as a
matter of federal law.
[J-69-2019] - 12
The Commonwealth argues that King received sufficient notice of its intent to seek
the sentencing enhancement for attempted murder resulting in serious bodily injury
pursuant to Section 1102(c). Commonwealth’s Brief at 12. The Commonwealth explains
that indictments must be read in a “common-sense” rather than an “overly technical”
manner. Id. (citing Commonwealth v. Jones, 912 A.2d 268, 289 (Pa. 2006)). The
Commonwealth further provides that an indictment or information will be “sufficient if it
sets forth the elements of the offense with sufficient detail that the defendant is apprised
of what he must be prepared to meet, and may plead double jeopardy in a future
prosecution based on the same set of events.” Id. at 12-13 (quoting Commonwealth v.
Alston, 651 A.2d 1092, 1095 (Pa. 1992)).
The Commonwealth asserts that the charging documents were sufficient under
that asserted standard and provided sufficient notice. Id. at 13. The indictment accused
King of attempted murder by “shooting at [Banks] with a loaded firearm, striking her
multiple times about the body” and specifically alleged serious bodily injury with respect
to aggravated assault based on the same acts. Id. at 13 (quoting Indictment at 1, 3). The
information, viewed against the backdrop of the indictment, was likewise sufficient. Id.
Although the attempted murder charge did not allege serious bodily injury, the subsequent
charge averred that King had participated in a conspiracy with the objectives of assault
and murder, furthered by the overt act of “[shooting] another multiple times with a
firearm[.]” Id. at 13-14 (quoting Information at 1). The Commonwealth also notes that
Pennsylvania Rule of Criminal Procedure 560(c) provides that the omission of or error
within a statute citation “shall not affect the validity or sufficiency of the indictment.” Id. at
15 (quoting Pa.R.Crim.P. 560(c)).
[J-69-2019] - 13
The Commonwealth further asserts that King was not unfairly surprised in a
manner that would offend due process. Id. at 15. To the contrary, King was informed of
the maximum possible penalty for all offenses charged before trial and made a knowing
decision to reject the Commonwealth’s plea offer. Id. The Commonwealth relayed to
King that the recommended minimum guideline sentence for attempted murder was more
than seventeen years, implying that it intended to seek the serious bodily injury
enhancement. Id. The Commonwealth underscores the fact that King’s attorney
understood the ranges of penalties available. Id. at 16. Moreover, the Commonwealth
asserts that the defense’s strategy was not impaired by lack of formal notice because
King stipulated to Banks’ injuries at trial and attempted to demonstrate that another
perpetrator committed the crime. Id. The Commonwealth asserts that the instant case
is analogous to Reid. Id. at 17. Specifically, rather than pleading nolo contendere after
hearing a description of the victim’s injuries as in Reid, King stipulated to Banks’ injuries
prior to trial. Id. (citing Reid, 867 A.2d at 1284-85). He was therefore on notice that Banks
suffered serious bodily injury. Id.
The Commonwealth further argues that King’s conviction comports with Apprendi.
Id. at 17. The Commonwealth disagrees with King’s assertion that Apprendi requires any
fact, other than a prior conviction, that increases the maximum penalty for a crime be
charged in the indictment. Id. at 18. The Commonwealth explains that the Apprendi
Court did not address the indictment issue because Apprendi did not directly challenge
the indictment. Id. The Commonwealth maintains that Apprendi requires fair notice,
which occurred in this case. Id. Apprendi also requires that any fact, other than a prior
conviction, be submitted to a jury and proved beyond a reasonable doubt. Id. at 18-19.
[J-69-2019] - 14
This condition was also met because the instant jury found serious bodily injury in
connection with attempted murder beyond a reasonable doubt. Id. In any event, the
Commonwealth argues that Apprendi does not apply to facts admitted by a defendant,
and in this case King stipulated to the cause and extent of Banks’ injuries. Id.
The Commonwealth further asserts that Johnson, Barnes, and Bickerstaff are all
inapposite. Id. at 20. The juries in Johnson and Barnes never determined whether the
defendants’ attempted murder offenses resulted in serious bodily injury. Id. Additionally,
unlike the circumstances in Bickerstaff, King was not ambushed by the verdict sheet
including an interrogatory regarding serious bodily injury associated with attempted
murder. Id. at 20-21. Alternatively, the Commonwealth asks this Court to reject the
holding in Bickerstaff to the extent it imposes a per se rule requiring reversal based on
the failure to cite Section 1102(c) in the information. Id.
Lastly, the Commonwealth maintains that any Apprendi error in this case was
harmless. Id. at 22 (citing United States v. Cotton, 535 U.S. 1781 (2002)). The
Commonwealth focuses on the fact that the evidence of serious bodily injury was
“overwhelming and uncontested,” given both parties stipulated to the severity of Banks’
injuries. Id. The Commonwealth asserts that King’s defense was not impaired by lack of
formal notice because his defense strategy was that another unknown individual shot
Banks. Id.
B. Analysis
King does not allege that the enhanced sentence under Section 1102(c) is facially
unconstitutional, but rather that its application in this case resulted in an illegal sentence.
We have held that claims alleging a violation of the Apprendi line of cases implicate
[J-69-2019] - 15
legality of sentencing and are not subject to the traditional doctrine of waiver. Wolfe, 140
A.3d 651 at 660 (citations omitted). As it poses a question of law, the standard of review
is de novo and the scope of review is plenary. Commonwealth v. Martinez, 147 A.3d 517,
529 (Pa. 2016) (citing Commonwealth v. Crawley, 924 A.2d 612, 614 (Pa. 2007)).
“[U]nder the Due Process Clause of the Fifth Amendment and the notice and jury
trial guarantees of the Sixth Amendment, any fact (other than prior conviction) that
increases the maximum penalty for a crime must be charged in an indictment, submitted
to a jury, and proven beyond a reasonable doubt.” Apprendi, 530 U.S. at 476 (quoting
Jones v. United States, 526 U.S. 227, 243 n.6 (1999)). Jones is a federal case involving
a federal prosecution and rests on the Grand Jury Clause of the Fifth Amendment to the
United States Constitution as summarized by the United States Court of Appeals for the
Sixth Circuit:
Apprendi did not hold that “any fact (other than prior
conviction) that increases the maximum penalty for a crime
must be charged in an indictment, submitted to a jury, and
proven beyond a reasonable doubt.” Apprendi, 530 U.S. at
476, 120 S. Ct. 2348. Rather, this is the holding of Jones, a
case involving a federal prosecution, to which the Fifth
Amendment Grand Jury Clause clearly applies. See United
States v. Cotton, 535 U.S. 625, 627, 122 S. Ct. 1781, 152
L. Ed. 2d 860 (2002). Apprendi relied on Jones to hold that
“[o]ther than the fact of a prior conviction, any fact that
increases the penalty for a crime beyond the prescribed
statutory maximum must be submitted to a jury.” 530 U.S. at
490, 120 S. Ct. 2348. The Apprendi holding does not mention
any requirements related to the indictment.
Williams v. Haviland, 467 F.3d 527, 532 (6th Cir. 2006). See also Cotton, 535 U.S. at
627 (“In federal prosecutions, such facts must also be charged in the indictment.”)
(citation omitted).
[J-69-2019] - 16
Apprendi thus implicates two related areas of law: notice as required by due
process and the right to a jury trial. The grand jury indictment notice component sets the
stage for what the government intends to prove to the jury. “The grand and petit juries
thus form a ‘strong and two-fold barrier . . . between the liberties of the people and the
prerogative of the [government].’” Harris v. United States, 536 U.S. 545, 564 (2002)
(quoting Duncan v. Louisiana, 391 U.S. 145, 151 (1968)), overruled by Alleyne. However,
the Apprendi Court declined to address whether the charging document itself needs to
include the relevant additional facts.
Apprendi has not here asserted a constitutional claim
based on the omission of any reference to sentence
enhancement or racial bias in the indictment. He relies
entirely on the fact that the “due process of law” that the
Fourteenth Amendment requires the States to provide to
persons accused of crime encompasses the right to a trial by
jury, Duncan v. Louisiana, 391 U.S. 145, 88 S. Ct. 1444, 20
L. Ed. 2d 491 (1968), and the right to have every element of the
offense proved beyond a reasonable doubt, In re Winship,
397 U.S. 358, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970). That
Amendment has not, however, been construed to include the
Fifth Amendment right to “presentment or indictment of a
Grand Jury” that was implicated in our recent decision in
Almendarez-Torres v. United States, 523 U.S. 224, 118 S. Ct.
1219, 140 L. Ed. 2d 350 (1998). We thus do not address the
indictment question separately today.
Apprendi, 530 U.S. at 477 n.3 (emphasis added). The Commonwealth relies in part on
this aspect of Apprendi to establish that the criminal information was sufficient under Rule
of Criminal Procedure 560(c). Commonwealth’s Brief at 18 (noting that the Fifth
Amendment grand jury indictment requirement has not been incorporated against the
States).
We agree with King that the indictment and criminal information were facially
inadequate because neither document alerted King to the Commonwealth’s intention to
[J-69-2019] - 17
prove serious bodily injury with respect to the attempted murder count. While Apprendi
declined to address a constitutional claim regarding what the charging document must
say, we have interpreted the due process notice aspect of the charging document to
involve both Rule 560 and the Pennsylvania Constitution. In Commonwealth v. Sims,
919 A.2d 931 (Pa. 2007), we stated:
Just as it requires a criminal statute to give fair warning of the
conduct proscribed, see, e.g., Commonwealth v. Magliocco,
584 Pa. 244, 883 A.2d 479, 487 (2005), due process requires
that the criminal information provide fair notice of every crime
of which a criminal defendant is accused, see Commonwealth
v. Khorey, 555 A.2d 100, 108 (Pa. 1989); Pa.R.Crim.P. 560(C)
(providing that “[t]he information shall contain the ... citation of
the statute ... or other provision of law that the defendant is
alleged therein to have violated”).
Id. at 939.
The Khorey Court, in turn, observed that “One purpose of an indictment or an
information is to satisfy the requirements of the Sixth Amendment to the United States
Constitution and of Article I, Section 9 of the Pennsylvania Constitution, which enunciate
the right to formal notice of charges.” 555 A.2d at 108. Whatever the source of the notice
guarantee, the salient point is that the United States Supreme Court’s holding in Apprendi
establishes that a fact increasing the statutory maximum, i.e. serious bodily injury in this
case, must be treated as an element. Apprendi, 530 U.S. at 490. Later, in Alleyne, the
Court held that the rationale in Apprendi applied equally “to facts increasing the
mandatory minimum.” Alleyne, 570 U.S. at 111-12. In reaching this conclusion, the Court
explained:
It is impossible to dissociate the floor of a sentencing range
from the penalty affixed to the crime. Indeed, criminal statutes
have long specified both the floor and ceiling of sentence
ranges, which is evidence that both define the legally
[J-69-2019] - 18
prescribed penalty. This historical practice allowed those who
violated the law to know, ex ante, the contours of the penalty
that the legislature affixed to the crime ̶ and comports with
the obvious truth that the floor of a mandatory range is as
relevant to wrongdoers as the ceiling. A fact that increases a
sentencing floor, thus, forms an essential ingredient of the
offense.
Alleyne, 570 U.S. at 112-13. Thus, under the Sixth Amendment, “the core crime and the
fact triggering the mandatory minimum sentence together constitute a new, aggravated
crime, each element of which must be submitted to the jury.” Id. at 113. Importantly, in
terms of notice, the Court stated that “[d]efining facts that increase a mandatory minimum
to be part of the substantive offense enables the defendant to predict the legally
applicable penalty from the face of the indictment[,]” and “preserves the historic role of
the jury as an intermediary between the [s]tate and criminal defendants.” Id. at 113-14.
Applying these principles, the Commonwealth in effect prosecuted King for the
aggravated crime of attempted murder causing serious bodily injury despite charging him
with the crime of attempted murder. The statutory definition of attempted murder does
not require proof of serious bodily injury. See 18 Pa.C.S. § 901, 2502.10 Section 1102(c)
provides that a person convicted of attempted murder that does not result in serious bodily
injury may be sentenced to a maximum term of twenty years of imprisonment, whereas a
person convicted of attempted murder that results in serious bodily injury faces a
maximum term of forty years of imprisonment. 18 Pa.C.S. § 1102(c). Serious bodily
10 Section 901 provides, in relevant part, as follows: “A person commits an attempt where,
with intent to commit a specific crime, he does any act which constitutes a substantial
step toward the commission of that crime.” 18 Pa.C.S. § 901(1). Section 2502 provides,
in relevant part, that “[a] criminal homicide constitutes murder of the first degree when it
is committed by an intentional killing.” 18 Pa.C.S. § 2502(a).
[J-69-2019] - 19
injury caused by the attempted murder is undoubtedly an essential element of the offense
that must be included in the charging documents.
It therefore follows that the charging instrument must include those elements to put
the defendant on notice of the crime. This Court in Commonwealth v. Alston, 651 A.2d
1092 (Pa. 1994), explained:
The purpose of an Information or an Indictment is to provide
the accused with sufficient notice to prepare a defense, and
to ensure that he will not be tried twice for the same act. An
Indictment or an Information is sufficient if it sets forth the
elements of the offense intended to be charged with sufficient
detail that the defendant is apprised of what he must be
prepared to meet, and may plead double jeopardy in a future
prosecution based on the same set of events. This may be
accomplished through use of the words of the statute itself as
long as those words of themselves fully, directly, and
expressly, without any uncertainty or ambiguity, set forth all
the elements necessary to constitute the offense intended to
be punished.
Alston, 651 A.2d at 1095-96 (internal citations omitted).
Here, the criminal information plainly put King on notice of the crime of attempted
murder. But for purposes of Apprendi, King was convicted of the aggravated crime of
attempted murder causing serious bodily injury. Nothing in the indictment or criminal
information itself alerted King to the Commonwealth’s intention to prosecute him of that
crime. We therefore hold that when the Commonwealth intends to seek an enhanced
sentence for attempted murder resulting in serious bodily injury under Section 1102(c),
the Commonwealth must include a citation to the statutory provision as well as its
language in the charging documents. While the information arguably gave some notice
of the Commonwealth’s intent to seek the sentencing enhancement based on the facts
alleged in the charging documents and the Commonwealth’s mention of the sentencing
[J-69-2019] - 20
guidelines prior to trial, this degree of notice was insufficient. Because we decide this
matter on due process notice grounds, we need not address in detail the Superior Court’s
decisions in Barnes, Johnson, Reid, and Bickerstaff.
C. Remedy
Having found that the criminal information failed to adequately apprise King of the
Commonwealth’s intention, we turn to the question of remedy. As acknowledged by both
parties, the element of serious bodily injury in connection with attempted murder was
indeed submitted to the jury and found beyond a reasonable doubt as indicated on the
jury’s verdict sheet. The question becomes whether the absence of that fact from the
indictment or information requires a finding that the resulting sentence for the aggravated
crime was illegal.
We hold that it does not. That the Commonwealth’s information was insufficient
as a matter of due process notice does not resolve whether the conviction at trial was
illegally secured. As previously noted, the indictment sets the stage for trial and what the
Commonwealth intends to prove. For the following reasons, we conclude that King was
adequately apprised through other means of the Commonwealth’s intentions and that the
charging error was harmless beyond a reasonable doubt.
The United States Supreme Court held in Cotton that Apprendi violations based
on the failure to include the relevant facts in a federal indictment do not serve to invalidate
the conviction and may be subject to plain error analysis. Therefore, Cotton precludes
the notion that a defective criminal information automatically warrants relief. We note that
our appellate courts do not apply plain error. See Commonwealth v. Hays, 218 A.3d
1260, 1267 (Pa. 2019) (Saylor, C.J., concurring) (“the Court has abrogated the plain error
[J-69-2019] - 21
doctrine in Pennsylvania”) (citing Commonwealth v. Clair, 326 A.2d 272, 274 (Pa. 1974)).
The harmless error standard invoked by the Commonwealth is generally applied with
respect to preserved errors. See United States v. Olano, 507 U.S. 725, 734 (1993)
(“When the defendant has made a timely objection to an error . . . a court of appeals
normally engages in a specific analysis of the district court record—a so-called “harmless
error” inquiry—to determine whether the error was prejudicial.”). The legality of
sentencing inquiry, in contrast, is conducted notwithstanding the waiver caused by a
failure to object.11 We agree that the notice error herein may be reviewed under the
harmless error framework despite the lack of objection.12
11 At least one federal case after Cotton applied, in a consolidated appeal, the Cotton
plain error standard to unpreserved errors and the harmless error standard to preserved
errors:
For the appellants who did not object at trial, Cotton requires
us to apply plain-error analysis and, more specifically, to
assess the evidence of drug quantity to determine whether the
sentencing error seriously affects the integrity, fairness, or
public reputation of the judicial proceedings. If the evidence
supporting the omitted fact is “overwhelming” and “essentially
uncontroverted,” then the error cannot be said to seriously
affect the integrity of the proceedings. Cotton, 122 S. Ct. at
1786.
For the appellants who objected at sentencing, we apply
harmless error analysis.
United States v. Baptiste, 309 F.3d 274, 277 (5th Cir. 2002). “Harmless error, however,
is a rule of constitutional law, whereas plain error is a rule of appellate procedure.” United
States v. Phipps, 319 F.3d 177, 189 (5th Cir. 2003).
12 We granted review in Commonwealth v. Hamlett, 202 A.3d 45, 46 (Pa. 2019), to
address the Superior Court’s invocation of harmless error sua sponte. We note that here
the Commonwealth invoked harmless error in its appellee’s brief and furthermore King
had the opportunity to respond to the argument in his reply brief and did so. See King’s
Reply Brief at 9-11.
[J-69-2019] - 22
In Commonwealth v. Story, 383 A.2d 155 (Pa. 1978), this Court adopted a
harmless error standard equally applicable to errors involving state law as those involving
federal constitutional error. Id. at 162. This standard provides that “an error can be
harmless only if the appellate court is convinced beyond a reasonable doubt that the error
is harmless.” Id. We also found that the burden of establishing harmlessness beyond a
reasonable doubt is borne by the Commonwealth. Id. at 162 n.11. While cases involving
harmless error typically involve the prejudicial impact of evidence erroneously admitted
at trial, the doctrine is also implicated with other types of error. Id. at 164 n.16 (citing
cases).13 Furthermore, we have stated that the harmless error standard applies in the
related context of variances between the criminal information and the proof presented at
trial. See In re R.M., 790 A.2d 300, 306 (Pa. 2002) (“Although we hold that a constitutional
violation occurred, we note that, notwithstanding defective notice even in the criminal
context, a variance may be deemed harmless where a defendant is fully apprised of the
charges against him and able to anticipate and respond to the prosecution's proof.”).
Indeed, many courts have found that Apprendi errors may be harmless if the evidence is
overwhelming and uncontroverted. See e.g., Washington v. Recuenoco, 548 U.S. 212,
218-22 (2006) (finding failure to submit sentencing factor to the jury, like the failure to
submit an element to the jury, is not structural error, and is thus subject to harmless error
analysis); Cotton, 535 U.S. at 632-34 (holding Apprendi error harmless where evidence
13 With regard to improperly admitted evidence, the Story Court explained that our courts
employ three approaches to assess harmlessness. The first focuses on the prejudicial
impact of erroneously admitted evidence. The second assesses whether the erroneously
admitted evidence was nonetheless cumulative of other properly admitted evidence. The
third concerns whether the overall untainted evidence of guilt was so overwhelming that
the prejudicial impact of the erroneously admitted evidence could not have contributed to
the verdict. Id. at 164-65.
[J-69-2019] - 23
overwhelming and uncontroverted); Wolfe, 140 A.3d at 662 (acknowledging other courts
have deemed Apprendi-based errors harmless, but declining to engage in harmless error
analysis where “statute was itself found to be invalid and non-severable”).
We find Cotton particularly instructive. In Cotton, several defendants were
federally indicted for conspiracy to distribute and possession with intent to distribute a
specified amount of cocaine or cocaine base. Id. at 627. The indictment originally
specified the amount of drugs involved was five or more kilograms of cocaine and fifty
grams or more of cocaine base. Id. A superseding indictment that expanded the time
frame of the conspiracy and the number of participants specified only a “detectable
amount” of cocaine and cocaine base. Id. at 628. The indictment thus failed to allege
the quantities of drugs that triggered enhanced penalties under the relevant statute. Id.
The jury found the defendants guilty but did not make a finding as to the quantity of drugs.
Id. Instead, the district court made factual findings regarding the quantities of drugs,
which increased the defendants’ statutory maximums from twenty years to no more than
life. Id. The defendants did not challenge their sentences on the basis that the drug
quantity was not listed in the indictment. Id.
While the defendants’ appeals were pending before the court of appeals, the Court
decided Apprendi, which led the defendants to challenge the fact that the quantity of drugs
was neither alleged in the indictment nor found by the jury. Id. at 628-29. The Court of
Appeals noted that the defendants failed to raise this argument before the district court
and assessed the claim for plain error. Id. It then vacated the sentences, ultimately
concluding that “because an indictment setting forth all the essential elements of an
offense is both mandatory and jurisdictional” the court was “without jurisdiction to impose
[J-69-2019] - 24
a sentence for an offense not charged in the indictment.” Id. The court reasoned that
such an error “seriously affects the fairness, integrity or public reputation of judicial
proceedings.” Id. The Supreme Court reversed, finding no plain error because the
omission of the amount of drugs in the indictment “did not seriously affect the fairness,
integrity, or public reputation of judicial proceedings[,]” considering “[t]he evidence that
the conspiracy involved at least [fifty] grams of cocaine base was ‘overwhelming’ and
‘essentially uncontroverted.’” Id. at 632-633. “Surely the grand jury, having found that
the conspiracy existed, would have also found that the conspiracy involved at least 50
grams of cocaine base.” Id. at 633. The Court further noted the real danger to the
fairness, integrity, and public reputation of judicial proceedings would be if the defendants
“despite the overwhelming and uncontroverted evidence that they were involved in a vast
drug conspiracy, were to receive a sentence prescribed for those committing less
substantial drug offenses because of an error that was never objected to at trial.” Id. at
634.
In lieu of addressing whether the error is subject to any type of harmlessness, King
instead relies on the notion that Hopkins and other cases from this Court striking down
mandatory minimum statutes in the wake of Alleyne equally apply to Section 1102(c).
This argument fails to account for the fact that Hopkins held that the relevant statute was
facially unconstitutional and not capable of severance. Therefore, the Commonwealth
could not seek a mandatory minimum sentence under that statute unless and until the
General Assembly enacted a constitutional statute. King does not claim that a properly-
drafted criminal information notice would not permit application of the enhanced sentence.
[J-69-2019] - 25
This is in contrast to Hopkins, which rejected the use of a special interrogatory because
that procedure would not cure the host of other issues involved.
The Commonwealth asserts the employment of special
verdicts—or, as expressed at oral argument, the finding of a
general verdict with special interrogatories addressing
proximity and age—as a way to cure the constitutional
deficiencies in the statute. We disagree. First, nothing in
Section 6317 suggests the legislature contemplated such an
approach. Second, special verdicts would not cure the notice
and appeal provisions of Section 6317 noted above.
Specifically, as, under Alleyne, the factual determinations of
proximity and age pursuant to Section 6317 would be
elements of a new aggravated offense, the complaint and
information/indictment would have to set forth related
allegations. See, e.g., Pa.R.Crim.P. 504, 560. This notice
requirement could not be remedied by the use of special
verdicts.
Hopkins, 117 A.3d at 260.
Accepting King’s argument that his case involves an application of Hopkins would
suggest that the statute is simply unconstitutional. In other words, even if the
Commonwealth explicitly cited Section 1102(c) in the information, issued a formal notice
of intent to seek the sentencing enhancement, and submitted the issue to the jury as a
special interrogatory, the resulting sentence of twenty to forty years would still be
unconstitutional.
Since a proper notice would permit the sentence, we agree that the instant error is
amenable to harmless error review. We further find that the Commonwealth has met its
burden of establishing that the error was harmless beyond a reasonable doubt. Similar
to Cotton, the evidence of serious bodily injury in this case was overwhelming and
uncontroverted. Moreover, this is not a case where the judge made the requisite finding,
as in Cotton, but rather it was stipulated to and found by the jury beyond a reasonable
doubt. King never contested the severity of Banks’ injuries, but rather stipulated that, as
[J-69-2019] - 26
a result of two gunshot wounds, Banks suffered a shattered hipbone and anklebone,
requiring multiple surgeries and high intensity inpatient occupational and physical
therapy. See N.T., 5/25/16, at 171-72. While King did not receive formal notice of the
Commonwealth’s intent to seek the enhancement, King received de facto notice, at
various points before trial, that the Commonwealth was seeking the enhancement. For
example, the factual summaries in the charging documents made clear that Banks
suffered serious bodily injury. Moreover, the Commonwealth advised King that the
minimum penalty for attempted murder if convicted was seventeen and one-half years,
signaling that the Commonwealth intended to seek the enhancement. 14 Finally, the
Commonwealth and King’s attorney reviewed and agreed to the content and form of the
verdict sheet prior to jury deliberations, which included a special interrogatory regarding
whether Banks suffered serious bodily injury as a result of the attempted murder.
We also find persuasive the Commonwealth’s point that its failure to provide formal
notice of its intent to seek the enhanced sentence did not affect King’s choice of defense
or execution of that defense, considering King stipulated to Banks’ injuries and instead
sought to demonstrate that another unknown individual committed the crime. See
Commonwealth v. Holcombe, 498 A.2d 833, 848-49 (finding harmless error where trial
court’s jury charge improperly expanding on the information did not substantially prejudice
the defendant by making his prior defense strategy inapplicable to the charge faced under
14 Because the minimum sentence of confinement “shall not exceed one-half of the
maximum sentence imposed,” 42 Pa.C.S. § 9756(b)(1), the Commonwealth’s referencing
a minimum of seventeen and one-half years would require a corresponding maximum of
at least thirty-five years.
[J-69-2019] - 27
the additional erroneous instruction). Therefore, the harmless nature of the error
precludes a finding that the sentence was illegally imposed.
III. Consecutive Sentences for Inchoate Crimes
A. The Arguments of the Parties
King challenges the imposition of consecutive sentences for the inchoate crimes
of attempted murder and conspiracy. He argues that despite being charged and
convicted of both conspiracy to commit murder and conspiracy to commit aggravated
assault, there was only one conspiracy under Section 903(c), as both crimes were “the
object of the same agreement or continuous conspiratorial agreement.” King’s Brief at
27 (quoting 18 Pa.C.S. § 903(c)). Accordingly, he argues the Superior Court erred in
“finding there were two separate conspiracies where there was only one agreement.” Id.
at 28. King maintains that the Superior Court incorrectly relied on Kelly for the proposition
that an offender may be sentenced on both attempted murder and conspiracy to commit
aggravated assault because the two offenses are not necessarily designed to culminate
in the commission of the same crime. Id. King argues that this rationale “confuses § 906,
which is concerned with the underlying crimes, with § 903(c), which is concerned with the
number of separate agreements.” Id.
With respect to the number of agreements in this matter, King explains that
according to Braverman v. United States, 317 U.S. 49, 53 (1942), a single conspiratorial
agreement “cannot be taken to be several agreements and hence several conspiracies
because it envisages the violation of several statutes rather than one.” King’s Brief at 28.
He maintains that the issue of whether single or multiple conspiracies exist depends on
application of the following test:
[J-69-2019] - 28
The number of overt acts in common; the overlap of personnel; the time
period during which the alleged acts took place; the similarity in methods of
operation; the locations in which the alleged acts took place; the extent to
which the purported conspiracies share a common objective; and the
degree to which interdependence is needed for the overall operation to
succeed.
Id. at 29 (quoting Commonwealth v. Andrews, 768 A.2d 309, 316 (Pa. 2001)). King
asserts that analyzing these factors makes clear there was only one agreement in this
case, i.e., to murder Banks, and thus only one conspiracy. King’s Brief at 30. In other
words, there was no separate agreement to injure Banks, plus a separate agreement to
kill her.
Building upon this rationale, King maintains that his single conspiracy conviction
must “merge” with attempted murder for sentencing purposes under Section 906 because
the instant conduct was “designed to commit or culminate in the commission of the same
crime.” Id. (quoting 18 Pa.C.S. § 906). In support of this conclusion, King distinguishes
the instant case from both Commonwealth v. Graves, 508 A.2d 1198, 1198 (Pa. 1986)
(per curiam) (holding that conspiracy to assault multiple police officers and solicitation to
murder one police officer did not merge under Section 906 because both offenses were
directed at a different end), and Commonwealth v. Jacobs, 39 A.3d 977, 987 (Pa. 2012)
(plurality) (holding attempted escape and conspiracy to commit escape did not merge
under Section 906 because both offenses were not designed to culminate in the same
crime). Id. at 31-32. Unlike Graves and Jacobs, Kings argues the instant offenses were
both designed to culminate in Banks’ murder. Id. at 32. Finally, King urges application
of the rule of lenity to the extent that Section 906 is viewed as ambiguous. Id. at 33.
The Commonwealth responds that King’s consecutive sentences for attempted
murder and conspiracy to commit aggravated assault were not subject to “merger” under
[J-69-2019] - 29
Section 906 because they were not designed to culminate in the same crime.
Commonwealth’s Brief at 23. In reaching this conclusion, the Commonwealth relies on
Kelly. Id. at 23-24 (citing Kelly, 78 A.3d at 1144-45). Kelly was convicted of attempted
murder, aggravated assault, and conspiracy generally and sentenced separately for
attempted murder and conspiracy to commit aggravated assault. Id. The trial court
vacated Kelly’s sentence for conspiracy and the Superior Court affirmed, explaining that
because the jury found Kelly guilty of conspiracy generally, rather than conspiracy to
commit attempted murder or conspiracy to commit aggravated assault, it was unclear
whether the offense should merge with attempted murder for purposes of Section 906.
Id. The Commonwealth explains that this case is “like Kelly, but with one crucial
distinction.” Id. at 25. Instead of returning a general conspiracy verdict, the instant jury
returned guilty verdicts for both conspiracy to commit murder and aggravated assault, the
latter of which does not merge with attempted murder under Section 906. Id. The
Commonwealth similarly rejects King’s contention that his sentence runs afoul of Section
903(c). The Commonwealth focuses on the fact that although King was convicted of
multiple conspiracies, the court only imposed judgment of sentence on one of those
offenses. Id. at 26.15
15 Within this claim, King also argues that the trial court’s correction of its “original” oral
sentence outside of his presence violated due process. King’s Brief at 26-27. We decline
to address this issue as King failed to raise it at any point prior to this appeal. Moreover,
this issue is beyond the scope of the claims upon which this Court granted review. 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.”); Pa.R.A.P. 1115(a)(3) (“Only those questions set forth in the
petition [for allowance of appeal], or fairly comprised therein, will ordinarily be considered
by the court in the event that an appeal is allowed.”). In any event, our remand cures any
error in that regard.
[J-69-2019] - 30
B. Analysis
We find that King entered into one agreement with his co-conspirator to murder
Banks and, because he failed in his attempt to do so, King could not be sentenced to
serve separate terms for the inchoate crimes of conspiracy and attempt.
Preliminarily, we note that the Commonwealth and Superior Court both theorize
that the consecutive sentences were legal at least in part because King was found guilty
of conspiracy to commit murder as well as conspiracy to commit aggravated assault. The
parties further frame this issue as one of merger. These characterizations are flawed
under these circumstances for two reasons.
First, the jury did not find King guilty of both conspiracy to commit homicide and
conspiracy to commit aggravated assault. A review of the verdict sheet returned by the
jury lists seven charges: attempted murder, conspiracy to commit murder, conspiracy to
commit aggravated assault, aggravated assault, firearms not to be carried without a
license, carrying a firearm on public streets in Philadelphia, and possession of an
instrument of crime. The verdict sheet lists a corresponding charge number for each
crime. Next to both conspiracy to commit murder and conspiracy to commit aggravated
assault is the designation “#2.” This is consistent with the criminal information, which
charged six total counts with only one count of conspiracy. Within the language for
conspiracy, the Commonwealth listed: “Criminal objective: assault, murder.” Thus, in
reality the Commonwealth presented the jury with two separate theories of conspiracy,
presumably as a fallback in case the jury found the lack of specific intent to kill. The
Commonwealth indicated the case would be submitted to the jury as a general conspiracy
count, but King agreed with the judge’s comment that there were two:
[J-69-2019] - 31
[COMMONWEALTH]: Then conspiracy on here it just is
general. We –
THE COURT: It should say conspiracy to commit attempted
murder and conspiracy to commit aggravated assault.
[KING]: Conspiracy to commit murder because you can’t have
two offenses. And conspiracy to commit aggravated assault.
N.T. 5/25/16, at 175. While any problem with the verdict sheet was agreed to by King,
we find that the plenary scope of review permits consideration of what crimes King was
actually convicted of for purposes of our legality of sentence review. 16
Second, even if we accept that the jury returned a verdict of conspiracy to commit
aggravated assault as existing apart from the conspiracy to commit murder, Section 906
would still preclude multiple sentences under its plain language. We agree with King that
there was only one conspiracy in this case: an agreement to kill Banks. Where, as here,
the words of the statute are clear and free from ambiguity, the plain language of the
16 Justice Mundy asserts that the verdict sheet establishes that King was in fact convicted
of two counts of conspiracy, freeing the trial court to impose sentence on the “separate”
conspiracy to commit aggravated assault. See Dissenting Op. at 2 (Mundy, J.). The
Dissent does not address the fact that the criminal information alleged within the sole
count of conspiracy that King sought to “assault, murder.” Because any conspiracy to kill
necessarily subsumes an intent to commit serious bodily injury, we disagree with the
position that two separate conspiracies can emerge from the one charged conspiracy
count.
Indeed, our analysis on this point is consistent with our disposition of King’s first claim,
holding that King was on fair notice of the Commonwealth’s intent to proceed on the
enhanced sentence of attempted serious bodily injury. Likewise, the criminal information
informed King only that the Commonwealth sought to prove one conspiracy. On its terms,
the information alleged that the objective of the conspiracy was to kill, with the conspiracy
to commit assault a lesser-included offense that was available to the jury if it found the
lack of a specific intent to kill. Cf. Commonwealth v. Kelly, 78 A.3d 1136, 1146 (Pa. Super.
2013) (“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.”).
[J-69-2019] - 32
statute must not be disregarded. 1 Pa.C.S. § 1921(b). The plain language of Section
906 provides that a defendant may not be convicted of more than one inchoate crime
(attempt, solicitation and conspiracy) “for conduct designed to commit or to culminate in
the commission of the same crime.” 18 Pa.C.S. § 906. In the present case, both of the
inchoate crimes at issue were clearly intended to “culminate,” i.e., result in, the
commission of the same crime – the murder of Banks. With Porter driving the car, King
fired multiple shots at Banks, hitting her twice. The jury found King guilty of attempted
murder, which of necessity involved a finding of the specific intent to kill Banks.
The Commonwealth’s legal argument assumes that there existed a separate
conspiracy to commit aggravated assault that was not subsumed within the conspiracy to
kill. But a person cannot conspire to kill a targeted individual and not concurrently
conspire to commit aggravated assault against the same individual. This Court has held
that “[t]he act necessary to establish the offense of attempted murder – a substantial step
towards an intentional killing – includes, indeed, coincides with, the same act which was
necessary to establish the offense of aggravated assault, namely, the infliction of serious
bodily injury.” Commonwealth v. Anderson, 650 A.2d 20, 24 (Pa. 1994). As such, the
single object of both the attempt and conspiracy convictions was Banks' murder, and thus,
pursuant to Section 906, King could be convicted (i.e., sentenced17) for only one of these
inchoate crimes. In fact, the Commonwealth’s own sentencing memorandum agreed that
any conspiracy to commit aggravated assault was subsumed within the conspiracy to kill.
17 This Court has clarified that the term “convicted” in Section 906 refers to the entry of a
judgment of sentence, not a finding of guilt by the jury. Commonwealth v. Jacobs, 39
A.3d 977, 983 (Pa. 2012) (OAJC). “As this question relates to the legality of sentence, it
presents a question of law.” Id. at 982.
[J-69-2019] - 33
The memorandum stated: “Conspiracy to Commit Aggravated Assault – merges with
Conspiracy to Commit Murder[.]” Memorandum, 8/17/16, at unnumbered 2. The
Commonwealth asked for King to be sentenced at Conspiracy to Commit Murder. Id. at
unnumbered 3.
Rather than follow the unambiguous statutory language of Section 906, the
Commonwealth asks this Court to follow the Superior Court’s approach by applying
merger principles to the crimes of attempted murder and conspiracy to commit
aggravated assault. The panel below relied on Kelly, wherein the Superior Court
suggested that Section 906 incorporates aspects of the merger statute, 42 Pa.C.S. § 9765
(“No crimes shall merge for sentencing purposes unless the crimes arise from a single
criminal act and all of the statutory elements of one offense are included in the statutory
elements of the other offense.”).
Kelly was convicted and sentenced concurrently for, inter alia, attempted murder
and conspiracy to commit aggravated assault arising from a shooting incident involving
one victim. Kelly, 78 A.3d at 1145. The majority reasoned that the offenses of attempted
murder and conspiracy to commit aggravated assault are not designed to culminate in
the commission of the same crime, specifically, murder. Id. at 1145. The majority further
noted that these offenses would not merge under traditional merger principles, as each
offense includes an additional element absent from the other. Id. “Further, attempted
murder and conspiracy to commit aggravated assault both include additional separate
elements and therefore do not merge.” Id. (citing Commonwealth v. Anderson, 650 A.2d
20, 24 (Pa. 1994)).
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Anderson is a case applying the “same elements” test. See Commonwealth. v.
Jones, 912 A.2d 815, 818–19 (Pa. 2006) (OAJC) (noting that this Court in Anderson
adopted the Blockburger v. United States, 284 U.S. 299, 304 (1932), test for statutory
merger, i.e. “whether each provision requires proof of a fact which the other does not”).
The Kelly Court therefore apparently understood the Section 906 analysis to include a
determination of whether the underlying offenses for the two inchoate crimes are, in fact,
the same crime; i.e., had the same elements.
We disapprove of the Superior Court’s injection of Blockburger merger principles
in resolving a Section 906 claim. That statute does not provide that the crimes underlying
the inchoate offenses must themselves be the same crime, but rather that the underlying
crimes involved “conduct designed to commit or to culminate in the commission of the
same crime.” 18 Pa.C.S. § 906 (emphasis added).18 We have noted that “the
Blockburger test applies only in the multiple punishment context as a rule of statutory
construction, to be utilized only when the legislature has not indicated whether
punishment for separate offenses is cumulative.” Commonwealth v. Baldwin, 985 A.2d
18 Under the Commonwealth’s merger analysis, Section 906 would seemingly never
apply, even as to convictions for attempted murder and conspiracy to attempt murder.
Each of the three inchoate crimes of conspiracy, attempt, and solicitation have elements
not shared by the other. See e.g. Robinson v. United States, 608 A.2d 115, 116 (D.C.
1992) (holding that the crime of attempt requires an overt act that would have resulted in
the commission of the crime, whereas conspiracy requires an agreement and a “far less
exacting” preparatory act, and therefore the crimes contain different elements and do not
merge under Blockburger).
Similarly, Justice Mundy’s conclusion that the crimes of attempted murder and conspiracy
to commit aggravated assault are “not necessarily designed to culminate in the
commission of the same crime in the narrowest sense, as the object crime of murder
requires the specific intent to kill, while aggravated assault merely requires the intent to
cause serious bodily,” Dissenting Op. at 3 (Mundy, J.), is simply an alternative way of
saying that the inchoate crimes at issue here do not merge under Blockburger.
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830, 836 (Pa. 2009). By enacting Section 906, the General Assembly has plainly
indicated that cumulative punishment for inchoate crimes is specifically prohibited,
regardless of whether those crimes would otherwise merge, where the inchoate crimes
involve “conduct designed to commit or to culminate in the commission of the same
crime.” Thus, in the absence of Section 906, King could unquestionably receive
consecutive sentences for the crimes at issue here.
As we determine that the Blockburger merger test is not the appropriate test, we
now address two cases from this Court applying Section 906, Commonwealth v. Jacobs,
39 A.3d 977 (Pa. 2012) (OAJC), and Commonwealth v. Graves, 508 A.2d 1198 (Pa. 1986)
(per curiam). Jacobs, cited by the Commonwealth, involved an apparent attempted
escape by Jacobs and a fellow prisoner, Frank Seretich, from a county jail. Seretich tried
to scale the building with a 225-foot makeshift rope but lost his grip and fell to his death.
Some evidence suggested that Jacobs helped Seretich construct the rope and intended
to use the same rope after Seretich. Jacobs was charged with, and separately sentenced
for, attempted escape and conspiracy to commit escape. The lead opinion in Jacobs
determined that “the record clearly establishes that each inchoate crime had a separate
criminal purpose: the attempt was to culminate in Appellant's escape, and the conspiracy
was to culminate in either Seretich's or both of their escapes.” Jacobs, 39 A.3d at 986.
Jacobs involved a circumstance in which the precise nature of the conspiracy could not
be determined, as the two actors could have agreed only that Seretich would escape or,
conversely, that both would escape. In the present case, by contrast, the Commonwealth
does not contest that the agreement between King and Porter had a single conspiratorial
objective – to murder Banks.
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This Court in Graves, cited by King, addressed a circumstance in which the
defendant was convicted and sentenced for criminal conspiracy and criminal solicitation
for his part in an incident in which he conspired with fellow gang members to assault three
police officers and also individually solicited a gang member to murder one of the police
officers. Consecutive sentences were imposed for the inchoate conspiracy and
solicitation crimes. This Court approved of the two sentences, holding that “the record
demonstrates that each [crime] was directed at a different purpose.” Id. at 1198. The
conspiracy was “for the purpose of furthering an assault with several co-defendants on
three police officers,” while the solicitation “had as its object the death of one of the
officers.” Id. (emphases added). As such, the intended culmination of the two inchoate
offenses was not the same crime, but rather two different crimes (assault and murder).
We agree that Graves supports King’s position as there were two distinct objectives in
Graves. Furthermore, those objectives were different with respect to individual victims,
further establishing the presence of multiple and distinct crimes for purposes of Section
906.19 While these opinions use the word “merger,” in context, that is a shorthand
19 The presence of an additional victim is significant. By way of comparison, every
robbery necessarily subsumes a theft. According to the Commonwealth’s argument, a
defendant who conspired with another to commit a robbery against one victim could be
sentenced separately if the Commonwealth happened to charge (1) attempted robbery
and (2) conspiracy to commit theft, but could not be sentenced separately if the
Commonwealth charged (1) attempted robbery and (2) conspiracy to commit robbery.
Where the actors intend to rob multiple victims, Section 906 would not prohibit multiple
sentences. But where there is only one victim, multiple sentences are not permitted for
inchoate crimes subsumed within the ultimate objective of the conspiracy.
Under the factual circumstances presented in this case, the notion that there was an
independent aggravated assault separable from the attempted murder is a pure fiction.
In fact, as previously stated, the Commonwealth’s sentencing memorandum agreed that
there was no separate aggravated assault, as it listed all of the charges and stated:
“Conspiracy to Commit Aggravated Assault - merges with Conspiracy to Commit Murder.”
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reference to why consecutive sentences were not permitted and not an invocation of
Blockburger.
In sum, the traditional merger test has no application here because the Section
9765 merger statute would never apply to the inchoate crimes of conspiracy and criminal
attempt. The plain language of the specific statute governing this scenario precludes
multiple sentences because there is no possibility that the conspiracy to commit
aggravated assault existed independently of any conspiracy to kill, nor does the
Commonwealth allege any kind of temporal separation or other circumstances to suggest
that two conspiratorial agreements could have existed.
By enacting Section 906, the General Assembly declared that where a defendant
tries to achieve a result – in this case, murder – but fails to do so, he may only be punished
once in the absence of distinct criminal objectives. 20 We thus find that King is entitled to
relief. As this disrupts the overall sentencing scheme, we vacate judgment of sentence
and remand to the Superior Court with further directions to remand to the trial court for
resentencing.
Justices Baer, Todd and Wecht join the opinion.
Chief Justice Saylor files a concurring and dissenting opinion.
This represents a concession of the obvious: King and Porter necessarily conspired to
commit an aggravated assault against Banks when they conspired to kill her. Cf.
Commonwealth v. Anderson, 650 A.2d 20, 24 (Pa. 1994). Accordingly, the inchoate
crimes constituted “conduct designed to commit or to culminate in the commission of the
same crime.” 18 Pa.C.S. § 906.
20 Nor is it unsurprising that the General Assembly chooses to punish more harshly those
who succeed than those who attempt but fail. Compare 18 Pa.C.S. § 1102(c) (setting
maximum sentence for attempted murder at forty years of incarceration where victim
suffers serious bodily injury occurred and twenty years otherwise), with 18 Pa.C.S. §
1102(a) (mandatory sentence of life without parole where victim dies).
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Justice Mundy files a concurring and dissenting opinion in which Justice Dougherty
joins.
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