Com. v. Corley, C.

J-A21042-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
CHRISTOPHER CORLEY :
:
Appellant : No. 2597 EDA 2021
Appeal from the PCRA Order Entered December 9, 2021
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0007418-2016
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
CHRISTOPHER CORLEY :
:
Appellant : No. 29 EDA 2022
Appeal from the PCRA Order Entered December 9, 2021
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0007422-2016
BEFORE: LAZARUS, J., MURRAY, J., and McCAFFERY, J.
MEMORANDUM BY McCAFFERY, J.: FILED MARCH 16, 2023
Christopher Corley (Appellant) appeals from the orders1 entered in the
Philadelphia County Court of Common Pleas denying his first timely petition
____________________________________________
1 Related to the crimes at issue in this appeal, Appellant was charged under
two criminal dockets. He filed two separate notices of appeal at both and has
therefore complied with Commonwealth v. Walker, 185 A.3d 969, 977 (Pa.
2018) (separate notices of appeal must be filed when a single order resolves
(Footnote Continued Next Page)
J-A21042-22
filed under the Post-Conviction Relief Act (PCRA).2 In 2017, Appellant was
convicted of first-degree murder, conspiracy to commit first-degree murder,3
and related charges, and sentenced to two terms of life imprisonment and a
consecutive term of 10 to 20 years’ imprisonment. On appeal, he asserts the
PCRA court erred when it dismissed, without holding an evidentiary hearing,
his challenge to trial counsel’s effectiveness for failing to object to the trial
court’s jury instruction defining reasonable doubt. We deny relief on his
claims, but we sua sponte determine the life without parole sentence for
conspiracy to commit murder was illegal, and thus vacate it.4 Accordingly, we
affirm the PCRA court’s order, vacate Appellant’s judgment of sentence in part,
and remand to the trial court for resentencing.
The PCRA court summarized the underlying facts of this case as follows:
[On April 17, 2014, Appellant] and four co-conspirators —
Nysare Alston, Deforest Johnson, Brandon McKelvey, and Kenneth
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issues arising on more than one trial court docket), overruled in part,
Commonwealth v. Young, 265 A.3d 462, 477 (Pa. 2021) (reaffirming that
Pa.R.A.P. 341 requires separate notices of appeal when single order resolves
issues under more than one docket, but holding Pa.R.A.P. 902 permits
appellate court to consider appellant’s request to remediate error when notice
of appeal is timely filed). This Court consolidated these appeals sua sponte
on January 21, 2022. Order, 1/21/22.
2 42 Pa.C.S. §§ 9541-9546.
3 18 Pa.C.S. §§ 2502(a) and 903(a), respectively.
4 See 18 Pa.C.S. § 1102(c).
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Thomas[5] — lured the decedent, Carl Johnson, and surviving
victim Ryan Hardy to the Strawberry Mansion neighborhood of
Philadelphia under the pretense of buying cocaine. Instead,
[Appellant and his co-conspirators] abducted the victims from
[Victim] Johnson’s [car]. The victims were bound with duct tape
and placed in a Ford van driven by [Appellant]. The co-
conspirators stole approximately $20,000 worth of cocaine, a
television set, and jewelry.
After doing so, co-defendant McKelvey shot [Victim]
Johnson and [Victim] Hardy using a 9mm firearm[,] which
belonged to [Appellant. Victim] Johnson died at the scene.
[Victim] Hardy suffered two gunshot wounds but survived.
Following the shooting, the co-conspirators reconvened at
McKelvey’s house in [W]est Philadelphia to divide the proceeds of
the robbery and abandoned [Victim] Johnson’s [car] after washing
it in bleach.
PCRA Ct. Op. 1/31/22, at 2.
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5 Appellant had a joint trial with co-conspirators Alston and McKelvey, who
were found guilty of, inter alia, first-degree murder, attempted murder, and
conspiracy to commit first-degree murder. N.T., 11/16/17, at 4, 6, 10, 12.
Co-conspirator Johnson was tried separately after the trial court granted his
motion for severance, and was found guilty of second-degree murder,
kidnapping, robbery, and related offenses. Commonwealth v. Johnson,
1991 EDA 2019 (unpub. memo. at 1-2) (Pa. Super. June 9, 2020), appeal
denied, 201 EAL 2020 (Pa. Feb. 23, 2021); Trial Ct. Op. 6/6/18, at 3 n.1. Co-
conspirator Thomas entered an open guilty plea to third-degree murder,
kidnapping, conspiracy to commit robbery, firearms charges, aggravated
assault, possession of an instrument of crime (PIC), and avoiding
apprehension. Trial Ct. Op. 6/6/18, at 3 n.1. Thomas testified at the instant
trial pursuant to an agreement with the Commonwealth, and at the time of
trial, had not yet been sentenced. Id.
We also note that although the cover of the November 16, 2017,
transcript identifies the proceeding as “Volume 1” of trial, that proceeding was
the last day of trial, and includes the jury’s verdicts. The covers for the
November 9th, 13th, and 15th trial transcripts similarly identify those
proceeding as “Trial (Jury) Volume 1.” To avoid confusion, we cite these trial
transcripts by their dates only, without reference to the purported volume
number.
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Regarding Victim Johnson, Appellant was charged at Criminal Docket
No. CP-51-CR-0007418-2016 with one count each of first-degree murder,
conspiracy, robbery, kidnapping, firearms not to be carried without a license,
carrying a firearm in public in Philadelphia, and PIC.6 Relating to Victim Hardy,
Appellant was charged at Criminal Docket No. CP-51-CR-0007422-2016 with
attempted murder, aggravated assault, robbery, and kidnapping.7
On November 7, 2017, a jury trial for both criminal dockets commenced,
for Appellant and co-conspirators Alston and McKelvey. The Commonwealth
presented the testimony of, inter alia, co-conspirator Thomas, who testified
to the facts summarized above. He stated that Appellant: (1) agreed to
kidnap, torture, and if necessary, kill Victim Johnson; (2) was present during
preparations to execute this plan; and (3) was on the phone with co-
conspirator Thomas over the course of the crime. N.T., 11/8/17, at 97-101,
103-04, 108-09, 115, 121, 133, 144, 146, 165.
On November 16, 2017, the jury found Appellant guilty of the above
offenses. That same day, the trial court sentenced Appellant to two
concurrent terms of life without parole for his convictions of first-degree
____________________________________________
6 18 Pa.C.S. §§ 3701(a)(1)(i), 2901(a)(1), 6106(a)(1), 6108, 907(a), and
903(c), respectively.
Appellant was also charged with possession of a firearm (prohibited
persons), 18 Pa.C.S. § 6105(a)(1). The Commonwealth nolle prossed this
charge at trial. See N.T., 11/16/17, at 22-23.
7 18 Pa.C.S. §§ 901(a), 2702(a).
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murder and conspiracy to commit first-degree murder, and a consecutive term
of 10 to 20 years’ incarceration for attempted murder.8 Appellant filed a post-
sentence motion, which was denied on November 27th.
This Court affirmed Appellant’s judgment of sentence on May 13, 2019.
Commonwealth v. Corley, 209 EDA 2018 (unpub. memo.) (Pa. Super. May
13, 2019), appeal denied, 292 EAL 2019 (Sept. 24, 2019). Appellant filed a
petition for allowance of appeal with the Pennsylvania Supreme Court, which
was denied on September 24th. See id.
Appellant filed the underlying timely pro se PCRA petition, his first, on
October 22, 2020. The PCRA court appointed Coley O. Reynolds, Esquire, who
filed an amended PCRA petition on May 26, 2021, where he raised a claim of
ineffective assistance of trial counsel for failing to object to a jury instruction
defining reasonable doubt. Appellant’s Amended Post-Conviction Relief Act
Petition, 5/26/21, at 4. The Commonwealth filed a motion to dismiss
Appellant’s petition on August 19th. The PCRA court filed a notice to dismiss
without a hearing pursuant to Pa.R.Crim.P. 907 on October 29th and
dismissed Appellant’s petition on December 9th. Appellant filed this timely
notice of appeal. The PCRA court did not order Appellant to file a Pa.R.A.P.
1925(b) concise statement of errors complained of on appeal. Nevertheless,
he filed one on January 17, 2022.
____________________________________________
8 Appellant’s conviction for aggravated assault merged for purposes of
sentencing and the trial court imposed no further penalty on the remaining
charges.
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Appellant raises the following on appeal:
Did the PCRA court err by denying Appellant an evidentiary
hearing and post-conviction relief on his claim alleging trial
counsel provided ineffective assistance of counsel by not objecting
to the trial court’s jury instruction on reasonable doubt because
the instruction improperly elevated the level of reasonable doubt
required for acquittal in violation of the due process clause of the
Fourteenth Amendment to the United States Constitution[?]
Appellant’s Brief at 3 (some capitalization omitted).
In his sole claim, Appellant argues trial counsel was ineffective for not
objecting to the trial court’s reasonable doubt jury instruction and the PCRA
court erred when it did not grant an evidentiary hearing on this issue.
Appellant’s Brief at 8.
Preliminarily, we note the relevant standard of review for denial of a
PCRA petition:
We must determine whether the findings of the PCRA court are
supported by the record and whether the court’s legal conclusions
are free from error. The findings of the PCRA court and the
evidence of record are viewed in a light most favorable to the
prevailing party. The PCRA court’s credibility determinations,
when supported by the record, are binding; however, this [C]ourt
applies a de novo standard of review to the PCRA court’s legal
conclusions. We must keep in mind that the petitioner has the
burden of persuading this Court that the PCRA court erred and
that such error requires relief. Finally, this Court may affirm a
valid judgment or order for any reason appearing of record.
Commonwealth v. Montalvo, 205 A.3d 274, 286 (Pa. 2019) (citations
omitted).
With respect to the PCRA’s timeliness requirements, this Court has
explained:
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Section 9545 of the PCRA expressly states that a PCRA petition
“shall be filed within one year of the date the judgment becomes
final.” 42 Pa.C.S. § 9545. A judgment of sentence becomes final
at the conclusion of direct review, including discretionary review,
or at the expiration of time for seeking the review. [42 Pa.C.S.]
§ 9545(b)(3). “Our courts have strictly interpreted this
requirement as creating a jurisdictional deadline.” A court may
not address the merits of the issues raised if the PCRA petition
was not timely filed.
Commonwealth v. Whiteman, 204 A.3d 448, 450 (Pa. Super. 2019) (some
citations omitted).
In the instant case, this Court affirmed Appellant’s judgment of sentence
on May 13, 2019, and the Pennsylvania Supreme Court denied his petition for
allowance of appeal on September 24th. See Corley, 209 EDA 2018, appeal
denied, 292 EAL 2019. Therefore, he had 90 days — or until December 23rd
— to file a writ of certiorari with the United States Supreme Court. See S.Ct.R.
13(1). Appellant did not, and thus, his judgment of sentence became final on
December 23rd. Appellant then had one year, or until December 23, 2020, to
file a PCRA petition. See 42 Pa.C.S. § 9545(b)(1). Appellant filed the present
petition on October 22, 2020, and as such, it is timely.
Appellant challenges the PCRA court’s dismissal of his petition without
an evidentiary hearing on his ineffectiveness claim. We note counsel is
presumed to have rendered effective assistance. Commonwealth v.
Charleston, 94 A.3d 1012, 1019 (Pa. Super. 2014) (citation omitted). To
prevail on an ineffectiveness claim, the petitioner must establish the following
factors: (1) the underlying claim has arguable merit; (2) counsel had no
reasonable basis for his action or inaction; and (3) the petitioner was
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prejudiced. Id. at 1020. Further, the defendant’s claims “must meet all three
prongs of the test for ineffectiveness[;] if the court can determine without an
evidentiary hearing that one of the prongs cannot be met, then no purpose
would be advanced by holding an evidentiary hearing.” Id. (citation omitted).
Where a court has dismissed a PCRA petition without an evidentiary
hearing, we review the decision for an abuse of discretion:
[T]he right to an evidentiary hearing on a post-conviction petition
is not absolute. It is within the PCRA court’s discretion to decline
to hold a hearing if the petitioner’s claim is patently frivolous and
has no support either in the record or other evidence. It is the
responsibility of the reviewing court on appeal to examine each
issue raised in the PCRA petition in light of the record certified
before it in order to determine if the PCRA court erred in its
determination that there were no genuine issues of material fact
in controversy and in denying relief without conducting an
evidentiary hearing.
Commonwealth v. Wah, 42 A.3d 335, 338 (Pa. Super. 2012) (citations
omitted). “[T]o obtain reversal of a PCRA court’s decision to dismiss a petition
without a hearing, an appellant must show that he raised a genuine issue of
fact which, if resolved in his favor, would have entitled him to relief, or that
the court otherwise abused its discretion in denying a hearing.”
Commonwealth v. Johnson, 139 A.3d 1257, 1273 (Pa. 2016).
We are guided by the following. “[I]t is an unquestionable maxim of
law in this Commonwealth that a trial court has broad discretion in phrasing
its instruction, and may choose its own wording so long as the law is clearly,
adequately, and accurately presented to the jury for its consideration.”
Commonwealth v. Antidormi, 84 A.3d 736, 754 (Pa. Super. 2014)
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(citations omitted). Thus, this Court will not find jury instructions erroneous
when, taken as a whole, they adequately and accurately set forth the
applicable law. Commonwealth v. Daniels, 963 A.2d 409, 430 (Pa. 2009).
In the present matter, at the conclusion of trial, the court gave the jury
the following instruction regarding the “reasonable doubt” standard:
Although the Commonwealth has the burden of proving that
[Appellant] is guilty, this does not mean that the Commonwealth
must prove its case beyond all doubt or to a mathematical
certainty nor must the Commonwealth demonstrate the complete
impossibility of innocence.
A reasonable doubt is a doubt that would cause a reasonably
sensible and careful person to pause, hesitate or refrain from
acting upon a matter of highest importance to that person’s own
affairs or to that person’s own best interests.
A reasonable doubt must fairly arise out of the evidence
presented or out of the lack of evidence presented with respect to
some element of each of the crimes charged. A reasonable doubt
must be a real doubt. It may not be an imagined one nor may it
be a doubt manufactured by you in order to avoid carrying out an
unpleasant duty.
To summarize: You may not find [Appellant] guilty based
upon a mere suspicion of guilt. The Commonwealth has the
burden of proving [Appellant] guilty beyond a reasonable doubt.
If the Commonwealth has met its burden, then [Appellant] is no
longer presumed to be innocent and you should find him guilty.
However, if the Commonwealth has not met its burden, then you
must find [Appellant] not guilty.
What I tell people, ladies and gentlemen, is this, if a
reasonable, sensible person were making a really important life
decision, not an everyday decision, what to eat, what to wear,
where to go, if you screw that up, it has no effect on your life
really but a major life-changing decision, whether to pick up your
whole family and move across the country, whether to marry,
whether to join the Armed Forces, whether to have serious
surgery, the kind of decision that a person, a reasonable, sensible
person is going to think hard about before they make it, if that
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reasonable, sensible person gathers the information to help them
to make this decision and deliberates upon it, considers all the
various aspects but then in the end, pauses, hesitates, just cannot
go forward in acting, that is what we call a reasonable doubt.
N.T., 11/15/17, at 8-10.
Returning to Appellant’s argument, he asserts the above jury instruction
improperly elevated the reasonable doubt standard by lowering the
Commonwealth’s burden of proof and making it “overly easy” for the jury to
“resolve or simply ignore” any reasonable doubt. See Appellant’s Brief at 11,
13. Appellant alleges the trial court’s instruction
inserted a requirement that any doubt worthy of acquittal must be
so serious and grave that it would rise to the level of causing a
person not to pick up the whole family and move across the
country, marry, join the Armed Forces, and not to have needed
serious surgery.
Id. at 12-13. Appellant relies on Cage v. Louisiana, 498 U.S. 39 (1990),
which held that “use of the words ‘substantial’ and ‘grave’” improperly lowered
the prosecution’s burden of proof. Id. at 14. He maintains the jury instruction
in the present case is “no different[.]” Id. Appellant then argues the
instruction used an “improper example” which “require[d] a substantial
doubt[,]” instead of a reasonable doubt. Id. at 14-15, relying on inter alia,
Taylor v. Kentucky, 436 U.S. 478, 488 (1978) (trial court’s jury instruction
defining reasonable doubt as “substantial doubt” is confusing). Appellant also
claims the instruction in this case is “similar” to the one found unconstitutional
in the federal decision Brooks v. Gilmore, 2017 WL 3475475 (E.D. Pa. 2017)
(unreported). Appellant’s Brief at 15. Specifically, Appellant insists the
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instruction here “comprise[d] about half of what was said” in the
unconstitutional Brooks instruction. Id. at 17.
Appellant also argues the instruction improperly “directed [the jury] to
rely exclusively” on whether it would “refrain from acting” or “mov[e] beyond”
its reasonable doubt when deciding guilt. Appellant’s Brief at 18-19. Instead,
he maintains the court should have instructed the jurors to acquit Appellant if
they “pause[d]” or “hesitate[d].” Id. Appellant avers counsel had a duty to
object to this “highly unusual” instruction. Id. at 19, 22. Lastly, Appellant
insists that since the jury instruction contained a “structural” defect, prejudice
is presumed. Id. at 24. Alternatively, Appellant maintains that he suffered
prejudice because the “only” evidence of his guilt came from corrupt and
polluted sources, insisting there was a “reasonable probability” that the jury
may have had reasonable doubts as to his guilt. Id.
Relevant to Appellant’s argument, we briefly summarize Cage and
Brooks. In Cage, the defendant was convicted of first-degree murder and
sentenced to death. Cage, 498 U.S. at 39. He appealed to the Supreme
Court of Louisiana, arguing, inter alia, that the trial court gave a
constitutionally defective reasonable doubt instruction. Id. at 40. The
instruction stated, in relevant part:
This doubt . . . must be a reasonable one; that is one that is
founded upon a real tangible substantial basis and not upon mere
caprice and conjecture. It must be such doubt as would give
rise to a grave uncertainty, raised in your mind by reasons of
the unsatisfactory character of the evidence or lack thereof. A
reasonable doubt is not a mere possible doubt. It is an actual
substantial doubt. It is a doubt that a reasonable man can
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seriously entertain. What is required is not an absolute or
mathematical certainty, but a moral certainty.
Id. (emphasis in original). The Louisiana Supreme Court rejected the
defendant’s argument, finding that when read as a whole, the instruction
properly relayed the reasonable doubt standard. Id. at 40-41.
The Supreme Court of the United States granted the defendant certiorari
on this claim, concluding that “the words ‘substantial’ and ‘grave,’ as they are
commonly understood, suggest a higher degree of doubt than is required for
acquittal under the reasonable-doubt standard[.]” Cage, 498 U.S. at 41.
Further, the Court determined that a “reasonable juror could have interpreted
the instruction to allow a finding of guilt based on a degree of proof below that
required by the Due Process Clause.” Id. at 41.
In the present case, as the PCRA court points out, Appellant
mischaracterizes the trial court’s reasonable doubt instruction. The court
explained:
Despite [Appellant’s] characterizations of [the] instruction, the
court at no point used the phrases “substantial doubt” or “grave
uncertainty” and certainly did not direct the jury to reach a verdict
based on moral clarity, but rather properly instructed the jury that
a reasonable doubt must rise out of “the evidence presented or
out of the lack of evidence presented.”
See PCRA Ct. Op. at 6, citing N.T., 11/15/17, at 8-10. We agree with the
PCRA court and conclude Appellant’s assertions — that the instruction here is
“no different” from that in Cage, and implied the need for a “substantial
doubt” — is a blatant mischaracterization of the instruction. See Appellant’s
Brief at 14-15. As such, Cage is not applicable to the present facts.
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Next, we examine Brooks. In this case, the defendant was convicted
in the Philadelphia Court of Common Pleas of first-degree murder and related
offenses. Brooks, 2017 WL 3475475, at *2. His judgment of sentence was
affirmed on direct appeal and his PCRA petition was denied by the Court of
Common Pleas. Id. The defendant then filed a petition for a writ of habeas
corpus in the Eastern District of Pennsylvania, challenging, inter alia, the
reasonable doubt jury instruction given at his trial. Id. His petition was
denied, and he filed for a writ of habeas corpus in the Eastern District of
Pennsylvania. In pertinent part, the challenged instruction stated:
It’s helpful to think about reasonable doubt in this manner. . . .
Each one of you has someone in your life who’s absolutely
precious to you. If you were told by your precious one’s physician
that they had a life-threatening condition and that the only
known protocol or the best protocol for that condition was an
experimental surgery, you’re very likely going to ask for a second
opinion. You may even ask for a third opinion. You’re probably
going to research the condition, research the protocol. What’s the
surgery about? How does it work? You’re going to do everything
you can to get as much information as you can. You’re going to
call everybody you know in medicine: What do you know? What
have you heard? Tell me where to go. But at some point the
question will be called. If you go forward, it’s not because you
have moved beyond all doubt. There are no guarantees. If you
go forward, it is because you have moved beyond all reasonable
doubt.
Id. at **7-8 (emphasis added).
The federal court concluded that the instruction violated the defendant’s
due process rights. It stated the instruction employed the emotionally
charged “precious ones” example affording “a single life-saving option for a
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loved one[,]” thus elevating the level of doubt required for acquittal. Brooks,
2017 WL 3475475, at **9-10. The court also opined:
The problem is compounded by the fact that the trial judge
structured the hypothetical in terms of the jury proceeding to take
action on behalf of their family member, twice using the phrase “if
you go forward . . . .” The Supreme Court has made clear,
however, that a charge on reasonable doubt should be expressed
“in terms of the kind of doubt that would make a person hesitate
to act rather than the kind on which he would be willing to act.”
In the context of an otherwise sufficient charge, such error would
not amount to a constitutional violation. But taken in
combination with the trial court’s hypothetical here, which
would require an excessively high degree of doubt to reach an
acquittal, the deficiency of the charge is clear. . . .
Id. at **10-11 (emphasis added).
Once more, Appellant has mischaracterized the trial court’s reasonable
doubt instruction. The PCRA court stated the instruction here and the
instruction in Brooks were distinguishable. PCRA Ct. Op. at 6. We agree.
First, we note Appellant again embellishes the trial court’s instruction to
compare it to the instruction in Brooks. He asserts the court referenced a
“needed serious surgery” as opposed to merely “a serious surgery.”
Appellant’s Brief at 13 (emphasis added); compare N.T., 11/15/17, at 10. We
disagree with Appellant’s contention that the trial court’s single mention, of a
“serious surgery” that one would think hard about, “comprises about half of
what was said” in the Brooks instruction. See Appellant’s Brief at 17.
Ultimately, the instruction the trial court gave at Appellant’s trial is
substantially dissimilar to the unconstitutional instruction in Brooks.
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Regarding the language, to “mov[e] forward” in the instruction, we also
find Appellant’s comparison unavailing. While the trial court made this
statement in its charge, it was dissimilar to the same phrase as it appeared in
Brooks. The federal court in Brooks noted that the expression in
combination with the specific “precious ones” hypothetical was problematic.
See Brooks, 2017 WL 3475475, at **10-11. As we determine the trial court’s
use of the words “serious surgery” and “think[ing] hard” about a decision do
not rise to issues of the Brooks instruction, the reference to “moving forward”
does “not amount to a constitutional violation.” See id. at *11.
Though Appellant relies on Brooks, we note that the Pennsylvania
Supreme Court recently found a jury instruction, similar to that in Brooks,
was “constitutionally defective.” See Commonwealth v. Drummond, 285
A.3d 625, 628, 646 (Pa. 2022) (holding instructions like the “precious ones”
charge in Brooks are likely to cause a jury to apply a diminished standard of
proof, but counsel was not ineffective for not objecting because the
Pennsylvania Superior Court previously affirmed sentences where the
appellant challenged this instruction).9 In any event, this new decision would
still not entitle Appellant to relief. As stated above, the instruction in this case
is distinguishable from the one in Drummond and Brooks.
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9 Drummond and Brooks both involved the same trial judge, who gave
almost identical reasonable doubt jury instructions in each case. See
Drummond, 285 A.3d at 631-32, 644; compare Brooks 2017 WL 3475475,
at **7-8.
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We agree with the PCRA court that Appellant’s arguments have no merit.
The court provided an instruction to the jury whereby it accurately described
the reasonable doubt standard. The court’s further explanation of the
standard by way of example did not, as Appellant suggests, elevate the level
of doubt needed for acquittal. See Appellant’s Brief at 11, 13. Moreover,
even if such a comparison could be made between the instructions, we would
deny relief on the basis that at the time of his trial, this Court regularly
rejected similar arguments relying on Brooks. See Drummond, 285 A.3d at
646. As the trial court properly determined that at least one of the
ineffectiveness prongs could not be met, it did not err in dismissing Appellant’s
petition without a hearing. See Charleston, 94 A.3d at 1020. No relief is
due.
Next, we sua sponte consider Appellant’s life without parole sentence
for conspiracy to commit murder. Under 18 Pa.C.S. § 1102(c), the maximum
sentence for conspiracy to commit murder is 40 years where there is serious
bodily injury and 20 years where there is no serious bodily injury. 10 See 18
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10 We note that pursuant to Apprendi v. New Jersey, 530 U.S. 466 (2000),
to impose a 40-year maximum sentence under Section 1102(c), the jury must
make a finding of serious bodily injury specific to the conspiracy to commit
murder charge. See Apprendi, 530 U.S. at 490 (“Other 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, and proved
beyond a reasonable doubt.”) (citation omitted); Commonwealth v. Barnes,
167 A.3d 110, 117-19 (Pa. Super. 2017) (the defendant could not be
sentenced to the enhanced maximum of 40 years’ incarceration for attempted
murder pursuant to Section 1102(c) when: (1) the defendant was not charged
(Footnote Continued Next Page)
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Pa.C.S. § 1102(c). Although Appellant has not raised an illegal sentencing
claim, we may address it sua sponte. See Commonwealth v. DiMatteo,
177 A.3d 182, 192 (Pa. 2018) (reiterating general rule that legality of
sentence can be reviewed in context of timely PCRA petition);
Commonwealth v. Randal, 837 A.2d 1211, 1214 (Pa. Super. 2003) (en
banc) (challenges to an illegal sentence can never be waived and may be
reviewed sua sponte by this Court) (citation omitted). Further, “[w]here a
case requires a correction of sentence, this Court has the option of either
remanding for resentencing or amending the sentence directly.”
Commonwealth v. Klein, 795 A.2d 424, 430 (Pa. Super. 2002) (citation
omitted).
The imposed sentence for conspiracy to commit murder exceeds the
statutory maximum allowed, and as such is illegal and cannot stand.
Accordingly, we vacate Appellant’s life without parole sentence for conspiracy
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with “attempted murder resulting in serious bodily injury[;]” (2) the
Commonwealth did not give the defendant notice that it “sought either to
prove that a serious bodily injury resulted from the attempted murder or to
invoke the greater maximum sentence[;]” (3) the issue of whether serious
bodily injury occurred as a result of the attempted murder charge “was never
submitted to the jury as an element of the crime or as a special
interrogatory[;]” and (4) a finding of serious bodily injury as an element of a
separate conviction at trial cannot “be used to infer that the jury found serious
bodily injury for the attempted murder charge.”) (citations omitted). See
also 18 Pa.C.S. § 1102(c) (governing the statutory maximum sentences for
both attempted murder and conspiracy to commit murder). Here, the verdict
sheet does not include any question, nor any finding by the jury, as to whether
the conspiracy resulted in serious bodily injury. See Verdict Report,
11/15/17, at 1.
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J-A21042-22
to commit murder at Docket No. CP-51-CR-0007418-2016, and remand for
resentencing on that count only. We do not disturb the remainder of
Appellant’s sentence.
Orders affirmed. Judgment of sentence vacated in part consistent with
this memorandum. Case remanded with instructions. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/16/2023
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