Com. v. McVicker, J.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JAMIE PAUL MCVICKER :
:
: No. 1623 WDA 2018
Appeal from the Judgment of Sentence Entered July 12, 2018
In the Court of Common Pleas of Somerset County Criminal Division at
No(s): CP-56-CR-0000229-2017
BEFORE: OLSON, J., STABILE, J., and McLAUGHLIN, J.
MEMORANDUM BY McLAUGHLIN, J.: FILED SEPTEMBER 13, 2019
Jamie Paul McVicker appeals the judgment of sentence entered in the
Court of Common Pleas of Somerset County. McVicker argues the trial court
abused its discretion in admitting hearsay statements under the excited
utterance exception and challenges his conviction and sentence for attempted
third-degree murder. We conclude that, even if the trial court abused its
discretion in admitting the hearsay statements under the excited utterance
exception, any error was harmless. We agree with the parties and the trial
court that attempted third-degree murder is not a cognizable offense in
Pennsylvania and we therefore reverse the conviction for attempted third-
degree murder, vacate the accompanying sentence, and remand for
resentencing.
In February 2017, McVicker was charged with criminal homicide,
attempt to commit criminal homicide, possession of instruments of crime, and
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two counts each of aggravated assault, simple assault, and recklessly
endangering another person.1 The charges resulted from the shooting of
Britteny Kyle and Tyrell Ferguson. Kyle died as a result of the shooting and
Ferguson was wounded.
The trial court set forth the facts, including:
At approximately 11:11 p.m. on February 26, 2017, the
Somerset County 911 Communications Center (hereinafter,
“Somerset County 911”) received a call from Tyrell Ferguson
regarding a domestic disturbance in progress at . . .
[McVicker’s] residence at the time. As the audio from the
911 call reveals, the initial moments of the call are chaotic
and the voice of the victim, Britteny Kyle, can be heard in
the background yelling for help. Given the nature of the call
and location of the caller, the 911 operator, Craig Nicholson,
began transferring the call to Pennsylvania State Police
(hereinafter, PSP) for further assistance from law
enforcement. Shortly after the PSP Police Communications
Operator Neil Clay received the call at 11:12 p.m., and with
both operators still on the line, multiple gunshots are heard
over the phone along with the cries of both victims.
[An excerpt from the call was played for the jury.]
While there is a discrepancy between the testimony of the
two operators regarding the number of gunshots heard on
the 911 call,1 nevertheless, and as the transcript from the
call indicates, Ferguson relayed to dispatchers that Kyle had
been shot in the throat by her ex-boyfriend, [McVicker], and
was dead. Ferguson, grazed from a bullet and bleeding, fled
into a field and the woods surrounding the residence . . .
fearing that [McVicker] was chasing him. When asked by
Clay whether he had any weapons, Ferguson responded,
“No, I just - we just got off work.” Clay inquired further as
to the type of firearm used by [McVicker] in the assault, and
____________________________________________
1 18 Pa.C.S.A. §§ 2501, 901, 907(a), 2702(a)(4), 2701(a)(1), and 2705,
respectively.
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while Ferguson was unable to provide an answer, he stated
simply, “[h]e does have weapons.”
1 Nicholson testified that three gunshots were fired
during the call with Ferguson. Clay stated, in contrast,
that he heard two.
At trial, Ferguson testified that around 10:30 p.m. on the
evening of February 26, 2017, he and Kyle, who were co-
workers at SCI-Laurel Highlands in Somerset, PA, travelled
to [McVicker’s] residence to collect her cats following the
conclusion of their work shifts. According to Ferguson, he
and Kyle had begun dating in January of 2017, around the
time that Kyle’s relationship with [McVicker] was ending and
she was in the process of moving her belongings out of
[McVicker’s] residence. As Ferguson indicated, Kyle and
[McVicker] “didn’t have a good relationship at all.” On that
particular evening, Kyle received a text message from
[McVicker] stating that “she needed to get her cats out of
the house.” Ferguson testified that while Kyle was reluctant
to pick up her cats when [McVicker] was at his residence,
the text message she received from [McVicker] suggested
that he would not be home that evening. Testimony at trial
demonstrated that Kyle’s reluctance in this regard was well-
founded. Over the objection of [McVicker], the
Commonwealth presented testimony regarding a prior
domestic disturbance between Kyle and [McVicker] in the
early morning hours of December 1, 2016. On that morning,
according to the testimony Kyle’s mother, Rhonda Bittner,
Kyle fled [McVicker’s] residence to a nearby bar after a
confrontation with [McVicker], telling her mother that
[McVicker] had fired a shot at her. Kyle called her parents
from inside the bar seeking help, and when they arrived to
pick her up, she was “hysterical . . . crying, shaking.”
As Kyle and Ferguson approached Boswell that evening,
they decided to stop for a drink at Merchant’s Bar near
[McVicker’s] residence, but quickly left after the bar owner,
Matthew Reinbold, indicated that [McVicker] was there. The
couple decided to quickly drive to [McVicker’s] residence to
retrieve Kyle’s cats while [McVicker] remained at the bar.
According to Ferguson, [McVicker’s] residence was a
roughly ten-minute drive from Merchant’s Bar. Upon
arriving at the residence, Kyle parked near the rear entrance
of the house, turned off the vehicle, and went inside
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[McVicker’s] home to retrieve her cats. As Ferguson
recalled, he remained in the car, playing games on his cell
phone. Kyle emerged moments later with one of her cats,
and mentioned to Ferguson that the other had run off and
hid in the house, prompting her to return inside. Moments
later, according to Ferguson, Kyle started “screaming at the
top of her lungs like help me, help.” As a result, Ferguson
called 911 and waited for Kyle to come out of the house.
Kyle emerged from the house in a panic and got back into
the vehicle with Ferguson. As they struggled to get the keys
into the ignition, [McVicker] fired a shot at the vehicle,
shattering one of its windows. Ferguson, seated in the
passenger’s seat, looked out of the driver’s side window and
saw [McVicker] standing on the porch, with a gun “at [the]
center mass of his body.” After another shot from
[McVicker’s] weapon, Kyle went silent, and the car drifted
into a line of trees and brush near [McVicker’s] residence.
Ferguson, having determined that Kyle was dead, exited the
vehicle and fled into the woods.
[When the officers arrived on the scene, they] located the
victim’s vehicle resting in a field southwest of [McVicker’s]
residence with its taillights on and proceeded towards its
location. As they approached, the officers could see that the
glass in the driver’s side window was shattered and that
Britteny Kyle was slumped-over in the driver’s seat.
According to [PSP Trooper Jeffrey Flowers], the victim was
motionless and appeared to be deceased, with noticeable
blood around her neck area. Shortly thereafter, troopers
discovered Tyrell Ferguson in a dense, swampy field near
the scene and immediately escorted him to an awaiting
ambulance. According to Flowers, Ferguson was “very
disheveled, he had no shoes on, his pant legs [were] muddy,
and there [was] a large red stain square in the middle of his
chest.” A medical exam performed on Ferguson would later
confirm that he suffered a gunshot wound from apparent
bullet fragments which grazed his chest, abdomen and right
leg.
As Trooper Flowers relayed information regarding the crime
scene back to the PSP barracks, a second vehicle arrived on
the scene carrying David McVicker, [McVicker’s] father.
According to [David], [McVicker] had been with his cousin
Brian McVicker earlier in the evening and had called his
father to tell him that he was in some trouble and “was going
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off to kill himself.” Testimony from Brian McVicker confirmed
that on the evening of February 26, 2017, prior to the
shooting, he and his cousin, Michael McVicker, had been
drinking with [McVicker] at various local bars. After having
a few drinks at Merchant’s Bar, Brian and Michael dropped
[McVicker] off at his residence because [McVicker] had
stated that Kyle was coming to pick up her cats. When
Michael and Brian returned to Merchant’s Bar, Brian
received a call from [McVicker] in which [McVicker] stated
he had “shot [Kyle’s] car up” and that “he thought he might
have hit someone because the car drifted down into the
bottom.”
PSP troopers at the scene soon received notification that
[McVicker] had been located in Conemaugh Township and
was in the custody of Officer Russell Miller, a patrolman with
the Conemaugh Township Police Department. Officer Miller
had been on patrol when he received word around 11:15
p.m. that an assault had occurred earlier . . . in Jenner
Township, and that the State Police were looking for
[McVicker]. At 12:15 a.m., he observed [McVicker] turning
onto Pine Street in Davidsville, PA, and after following the
car briefly, he stopped the vehicle and placed [McVicker]
into his custody. When asked by Miller if he had any
weapons, [McVicker] replied “[n]o, it’s at the house.”
Trooper Flowers, along with Sergeant Steven Adamczyk of
the PSP, travelled to Conemaugh Township and arrived to
find [McVicker] in handcuffs in the back of Officer Miller’s
police unit. When asked by Trooper Flowers if he was all
right, [McVicker] indicated that he was. According to
Flowers, [McVicker] did not appear rattled or disheveled, but
did have a small spot of blood on his pants. Trooper Flowers
further inquired as to the whereabouts of [McVicker’s]
cousin Brian McVicker, and [McVicker] stated that he had
been with his cousin earlier in the evening but that “he was
by himself when it had happened.” . . . .
A forensic investigation was conducted by the PSP Criminal
Investigation Unit at [McVicker’s] residence and
surrounding property during the early morning hours of
February 27, 2018 [sic]. Evidence recovered at the scene
suggested the shooting had occurred at the rear entrance of
the residence near a small set of wooden stairs leading up
to the first floor of the home. A set of dark tire tracks
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identified near the steps indicated that the victim’s vehicle
made a quick acceleration before drifting roughly 179 feet
to its final resting place in a swampy field southwest of the
residence. A pile of tempered glass was found approximately
three feet from the bottom of the steps. Further
investigation of [Kyle’s] vehicle revealed that the front
driver’s side window was shattered and investigators
recovered bullet fragments from the front passenger door
interior panel. Closer examination of the path travelled by
the bullet recovered from the passenger door demonstrated
that the shot fired into the vehicle originated “from an
elevated position where it would have gone through the
glass at a downward angle from - again, not 90 degrees to
the window, but slightly back and outward.” The significant
amount of tempered glass recovered from inside the
vehicle, as well as other biological materials, confirmed that
the bullets were fired from outside of the vehicle on the
driver’s side.
The deceased body of the victim, Britteny Kyle, was found
in the driver’s seat of the vehicle with a large wound to her
upper chest area, as well as what appeared to be a wound
from a bullet embedded in the right sleeve of her clothing.
According to expert testimony from Kevin D. Whaley, M.D.,
Kyle suffered a fatal gunshot wound from a high-velocity
rifle round extending from the front part of her left shoulder
down to the upper part of her chest. As Whaley pointed out,
the bullet that struck Kyle’s body severed a large artery and
large vein, as well as her spinal cord, resulting in the victim’s
instant death.
Consistent with Whaley’s findings, a search of [McVicker’s]
residence recovered spent rifle cartridge casings in different
locations of the home - on a step at the rear entrance of the
residence, and on a countertop in the kitchen adjacent to
the rear entrance. Proceeding further into an unfurnished
bedroom, investigators found a wood stock bolt-action rifle
(a FFV Sweden .30-06), and upon opening the bolt,
recovered another spent cartridge casing. . . .
At trial, [McVicker] admitted to shooting Kyle and Ferguson
with a high-powered rifle, but pursued a theory of self-
defense. He testified that on the evening of February 26,
2017, he fired three shots from the rear entrance of his
residence at the car containing Kyle and Ferguson with a
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.30-06 bolt-action rifle loaded with three .270 Winchester
shells from roughly 10 feet away.
According to [McVicker], he fired the shots in self-defense
because he believed that Ferguson possessed a gun.
Following the shooting, [McVicker] left the scene and placed
calls to his father, his cousin Brian, and a friend, Daniel
Rhoads. As Rhoads recalled, [McVicker] told him that he
“might have shot somebody,” and was “going to go kill
himself.” [McVicker] stated that after stopping briefly to
discuss the situation with his cousins Brian and Michael, he
decided to turn himself in. Moments later, he was pulled-
over by Officer Miller of the Conemaugh Township Police and
taken into custody.
Trial Court Opinion, filed Feb. 22, 2019, at 4-15.
The jury found McVicker guilty of third-degree murder, attempted third-
degree murder, and two counts each of aggravated assault, simple assault,
and REAP.2 In July 2018, the trial court sentenced him to 20 to 40 years’
incarceration for the third-degree murder conviction and eight to 16 years’
incarceration for the attempted third-degree murder conviction, to be served
consecutively. The remaining convictions merged for sentencing purposes.
McVicker filed a post-sentence motion, which the trial court denied.
McVicker filed a timely Notice of Appeal.
McVicker raises the following issues:
1. Mr. McVicker’s attempted third-degree murder conviction
and his 8- to 16-year prison sentence in connection with
Tyrell Ferguson’s wounds are invalid and unconstitutional
under state and federal statutory and decisional law because
there is no such criminal offense as attempted third-degree
____________________________________________
2 The jury found McVicker not guilty of first-degree murder, voluntary
manslaughter, involuntary manslaughter, attempted first-degree murder, and
possession of instrument of crime.
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murder under Pennsylvania state law. U.S. Const. admts. 6,
8, 14; Pa. Const. art. I, § 8, 9.
2. The trial court erred by permitting Rhonda Bittner and
Matt Reinbold to testify to out-of-court statements Brittney
Kyle made to them on or about December 1, 2016 where
she accused Mr. McVicker of firing a gun at her during an
argument they had on or about December 1, 2016. Brittney
Kyle’s out-of-court statements didn’t trigger the excited
utterance hearsay exception. The trial court’s error wasn’t
harmless because it’s reasonably likely the hearsay
testimony may have affected the jury's verdicts. U.S. Const.
admts. 6, 8, 14; Pa. Const. art. I, § 8, 9.
McVicker’s Br. at 3. We will address McVicker’s second claim first.
McVicker claims the trial court abused its discretion when it permitted
Rhonda Bittner and Matt Reinhold to testify to Kyle’s December 2016 hearsay
statements that McVicker fired a gun at her. He argues that the statements
were inadmissible because the Commonwealth did not present “independent
evidence establishing the ‘startling event’”—the firing of the gun at Kyle—had
occurred. McVicker’s Br. at 24. He relies on cases in which the statements
were deemed inadmissible because “the excited utterance itself [was] being
used to prove that an exciting event did, in fact, occur.” Id. at 26 (quoting
Commonwealth v. Barnes, 456 A.2d 1037, 1040 (Pa.Super. 1983) and
Commonwealth v. Keys, 814 A.2d 1256, 1259 (Pa.Super. 2003)).
During trial Kyle’s mother, Bittner, testified that in December 2016, Kyle
told her, “He shot through the wall at her.” N.T., 5/18/18, at 3.496. When she
made the statement Kyle was “[u]pset, very worked up, upset. She was
hysterical. She was crying, shaking.” Id. at 3.495. The owner of Merchants
Bar, Matthew Reinhold, similarly testified that on that same December night
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Kyle told him that, “Jamie pointed a gun at her and fired a round by her head.”
Id. at 3.526. Both witnesses also testified that the relationship between
McVicker and Kyle was ending. Id. at 3.497, 3.501, 3.538. Further, Bittner
testified that when they arrived at McVicker’s residence that evening, Kyle’s
belongings were strewn across the lawn and that Kyle had been slowly moving
things from McVicker’s residence. Id. at 3.497, 3.501.
McVicker objected to the admission of the statements regarding the gun
shot as inadmissible hearsay. The court admitted the statements, finding they
qualified for the excited utterance exception to the rule precluding the
admission of hearsay statements. The trial court instructed the jury that the
jury could not use the testimony of Bittner or Reinhold as bad character
evidence, but could use it as proof of the history of the case:
[T]o say to yourself: Jamie McVicker is a bad guy, and so he
must have committed the crimes that he’s charged with in
this case. You can’t conclude from that testimony – you can’t
use it to conclude that he has a bad character; and,
therefore, he must have committed the crimes here. You are
absolutely prohibited from using it for that purpose.
You may use it, if you wish, but you don’t have to, if you
wish, as proof of the history of the case; what the
relationship was in the months immediately preceding this
incident between Jamie McVicker and Britteny Kyle; and you
may also use it, if you wish, as proof of Jamie McVicker’s
state of mind towards Britteny Kyle on the night of the
incident that gave rise to the charges. You may use it for
those purposes. You cannot use it for the other one.
Id. at 3.520-3.521, 3.539.
“Hearsay is defined as ‘a statement, other than one made by the
declarant while testifying at trial or hearing, offered in evidence to prove the
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truth of the matter asserted.’” Commonwealth v. Cunningham, 805 A.2d
566, 572 (Pa.Super. 2002) (quoting Pa.R.Evid. 801(c)). Hearsay is
inadmissible “except as provided by [the Rules of Evidence], by other rules
prescribed by the Pennsylvania Supreme Court, or by statute.” Pa.R.Evid. 802.
One exception to the hearsay rule is the excited utterance exception which
provides:
(2) Excited Utterance. A statement relating to a startling
event or condition, made while the declarant was under the
stress of excitement that it caused. When the declarant is
unidentified, the proponent shall show by independent
corroborating evidence that the declarant actually perceived
the startling event or condition.
Pa.R.Evid. 803(2). To qualify for this exception, the party seeking the
statement’s admission must establish “that [the declarant] had witnessed an
event sufficiently startling and so close in point of time as to render her
reflective thought processes inoperable and . . . that her declarations were a
spontaneous reaction to that startling event.” Commonwealth v. Murray,
83 A.3d 137, 157-58 (Pa. 2009) (quoting Commonwealth v. Sherwood,
982 A.2d 483, 496 (Pa. 2009)) (alteration in original).
Here, we decline to reach whether admission of the statements was an
abuse of discretion, because we find that, even if the statements were
inadmissible, any error was harmless.
An error is harmless if
(1) the error did not prejudice the defendant or the
prejudice was de minimis; (2) the erroneously admitted
evidence was merely cumulative of other untainted evidence
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which was substantially similar to the erroneously admitted
evidence; or (3) the properly admitted and uncontradicted
evidence of guilt was so overwhelming and the prejudicial
effect of the error was so insignificant by comparison that
the error could not have contributed to the verdict.
Commonwealth v. Stallworth, 781 A.2d 110, 120 (Pa. 2001) (quoting
Commonwealth v. Robinson, 721 A.2d 344, 350 (Pa. 1999)) (italics
added). “The Commonwealth bears the burden of establishing the
harmlessness of the error.” Commonwealth v Laich, 777 A.2d 1057, 1062
(Pa. 2001).
Third-degree murder is defined as “‘all other kinds of murder,’ i.e., those
committed with malice that are not intentional (first-degree) or committed
during the perpetration of a felony (second-degree).” Commonwealth v.
Packer, 168 A.3d 161, 168 (Pa. 2017). “The elements of third-degree
murder, as developed by case law, are a killing done with legal malice.”
Commonwealth v. Marquez, 980 A.2d 145, 148 (Pa.Super. 2009) (en banc)
(quoting Commonwealth v. MacArthur, 629 A.2d 166, 167–68 (Pa.Super.
1993)). Malice “comprehends not only a particular ill-will, but every case
where there is wickedness of disposition, hardness of heart, cruelty,
recklessness of consequences, and a mind regardless of social duty, although
a particular person may not be intended to be injured.” Packer, 168 A.3d at
168 (quoting Commonwealth v. Drum, 58 Pa. 9, 15 (1868)). “[M]alice may
be inferred from the use of a deadly weapon on a vital part of the victim’s
body.” Commonwealth v. Gooding, 818 A.2d 546, 550 (Pa.Super. 2003)
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(quoting Commonwealth v. Gonzales, 609 A.2d 1368, 1369 (Pa.Super.
1992)).
To establish aggravated assault under the applicable subsection the
Commonwealth had to establish McVicker “attempt[ed] to cause or
intentionally or knowingly cause[d] bodily injury to another with a deadly
weapon.” 18 Pa.C.S.A. § 2702(a)(4).
McVicker claimed he acted in self-defense. The elements of self-defense
are: “(a) [that the defendant] reasonably believed that he was in imminent
danger of death or serious bodily injury and that it was necessary to use
deadly force against the victim to prevent such harm; (b) that the defendant
was free from fault in provoking the difficulty which culminated in the slaying;
and (c) that the [defendant] did not violate any duty to retreat.”
Commonwealth v. Mouzon, 53 A.3d 738, 740 (Pa. 2012) (quoting
Commonwealth v. Samuel, 590 A.2d 1245, 1247–48 (Pa. 1991))
(alterations in original); 18 Pa.C.S.A. § 505.
“When a defendant raises the issue of self-defense, the Commonwealth
bears the burden to disprove such a defense beyond a reasonable doubt.”
Commonwealth v. Bullock, 948 A.2d 818, 824 (Pa.Super. 2008) (quoting
Commonwealth v. Emler, 903 A.2d 1273, 1279 (Pa.Super. 2006)). “The
Commonwealth sustains this burden if it establishes at least one of the
following: (1) the accused did not reasonably believe that he was in danger of
death or serious bodily injury; (2) the accused provoked or continued the use
of force; or (3) the accused had a duty to retreat and the retreat was possible
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with complete safety.” Commonwealth v. Ventura, 975 A.2d 1128, 1143
(Pa.Super. 2009) (citing Commonwealth v. McClendon, 874 A.2d 1223,
1230 (Pa.Super. 2005)). “The Commonwealth need only prove one of these
elements beyond a reasonable doubt to sufficiently disprove a self-defense
claim.” Id. (citing Commonwealth v. Burns, 765 A.2d 1144, 1149
(Pa.Super. 2000)).
Here, the Commonwealth presented overwhelming evidence that on the
night of the shooting McVicker shot Kyle and Ferguson from his porch while
they were in their car trying to leave the premises. McVicker used a deadly
weapon on a vital part of both Kyle’s and Ferguson’s bodies. There was no
evidence Kyle and Ferguson had any weapon, except McVicker’s claim that he
saw Ferguson with a gun. Further, although McVicker made many calls after
the shooting, he did not tell anyone that he had acted in self-defense or that
he was attacked. Rather, he shot a gun into a car that was attempting to leave
his property. The evidence presented was sufficient to establish third-degree
murder and sufficient to disprove McVicker’s claim of self-defense, as it
disproved that McVicker reasonably believed he was in imminent danger of
death or serious bodily injury and it disproved that he did not have an ability
to retreat, as he could have retreated into his home. Therefore, if the court
erred in admitting statements that McVicker shot a gun at Kyle in December,
any error would be harmless. See Commonwealth v. Green, 76 A.3d 575,
582-83 (Pa.Super. 2013) (concluding harmless error in admission of victim’s
hearsay statement where there was sufficient and compelling evidence of
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defendant’s guilt besides the hearsay evidence); see also Commonwealth
v. Levanduski, 907 A.2d 3, 22 (Pa.Super. 2006) (en banc) (concluding
admission of victim’s statement was harmless error where there was other
overwhelming evidence of defendant’s guilt).
McVicker also claims there is no criminal offense in Pennsylvania for
attempted third-degree murder. He argues that the conviction and sentence
for attempted third-degree murder must be vacated, and that we should
remand to the trial court for re-sentencing. The trial court and the
Commonwealth concede that McVicker is entitled to relief on this claim. We
agree.
McVicker did not object to the jury instruction on attempted murder,
which included an instruction that the jury could find McVicker guilty of
attempt to commit third-degree murder. N.T., 5/23/18, at 6.837, 6.839.
However, he claims that his sentence is illegal because it is for a conviction
for a crime that does not exist. Such a claim cannot be waived. See
Commonwealth v. Batts, 163 A.3d 410, 434 (Pa. 2017) (citation omitted)
(“A challenge to the legality of a particular sentence may be reviewed by any
court on direct appeal; it need not be preserved in the lower courts to be
reviewable and may even be raised by an appellate court sua sponte.”).
In Pennsylvania, “there simply is no such crime as attempted second or
third degree murder.” Commonwealth v. Geathers, 847 A.2d 730, 734
(Pa.Super. 2004) (quoting Commonwealth v. Williams, 730 A.2d 507, 511
(Pa.Super. 1999)). Courts have reasoned:
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A person commits an attempt when, 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.A. § 901. Murder of the second or third degree occurs
where the killing of the victim is the unintentional result of
a criminal act. Thus, an attempt to commit second or third
degree murder would seem to require proof that a
defendant intended to perpetrate an unintentional killing—
which is logically impossible. While a person who only
intends to commit a felony may be guilty of second degree
murder if a killing results, and a person who only intends to
inflict bodily harm may be guilty of third degree murder if a
killing results; it does not follow that those persons would
be guilty of attempted murder if a killing did not occur. They
would not be guilty of attempted murder because they did
not intend to commit murder—they only intended to commit
a felony or to commit bodily harm.
Id. (quoting Commonwealth v. Griffin, 456 A.2d 171, 177–178 (Pa.Super.
1983)).
Here, McVicker was convicted and sentenced for a crime that does not
exist—attempted third-degree murder. We will therefore reverse the
conviction for attempted third-degree murder of Ferguson, vacate the
sentence imposed for it, and remand for re-sentencing.
Conviction for attempted third-degree murder reversed. Judgment of
sentenced affirmed in part and vacated in part. Case remanded for
resentencing. Jurisdiction relinquished.
Judge Stabile joins the memorandum.
Judge Olson concurs in the result.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/13/19
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