J-S77010-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
SCOTT SCARLOTTA MEINZER
Appellant No. 267 MDA 2016
Appeal from the Judgment of Sentence December 23, 2015
In the Court of Common Pleas of Lancaster County
Criminal Division at No(s): CP-36-CR-0005514-2013
BEFORE: PANELLA, J., OLSON, J., and PLATT, J.*
MEMORANDUM BY PANELLA, J. FILED DECEMBER 09, 2016
Appellant, Scott Scarlotta Meinzer, appeals from the judgment of
sentence entered after a jury convicted him of conspiracy to commit
burglary of an occupied residence. Meinzer contends that the sentence
imposed by the trial court is illegal, as Meinzer believes that the trial court’s
conspiracy instruction was ambiguous. We conclude that the trial court’s
instruction, viewed in context, was not ambiguous. We therefore affirm.
Meinzer was charged with robbery, burglary, and conspiring with
Joshua Hudelson based on allegations that the two broke into an apartment
to steal a firearm, some marijuana, and cash. It is undisputed that, during
its instructions regarding the conspiracy charge to the jury, the trial court
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
J-S77010-16
did not task the jury with determining whether the apartment was occupied
at the time of the crime. See N.T., Trial, 10/7/15, at 356. The jury found
Meinzer not guilty of robbery or burglary, but convicted him of conspiracy to
commit burglary.
At sentencing, Meinzer argued that the conspiracy conviction should be
graded as a second-degree felony, based upon his belief that the jury
instruction was ambiguous. The trial court announced that it did not believe
that Meinzer’s argument was correct, but agreed to impose sentence as if
the conviction was for a second-degree felony. The court sentenced Meinzer
to a term of imprisonment of nine to twenty-three months. The court
subsequently denied Meinzer’s post-sentence motion, and this timely appeal
followed.
The trial court ordered Meinzer to file a concise statement of matters
complained of on appeal pursuant to Pa.R.A.P. 1925. Meinzer’s counsel filed
a statement indicating an intent to file an Anders1 brief in lieu of a concise
statement. As a result, the trial court did not author an opinion on appeal.
However, rather than an Anders brief, Meinzer has now filed a merits
brief raising a single issue. While Meinzer acknowledges that the term of
imprisonment imposed is consistent with his belief that he was convicted of
____________________________________________
1
Anders v. California, 386 U.S. 738 (1967). An Anders brief is filed when
appointed counsel seeks permission to withdraw their appearance in a
matter.
-2-
J-S77010-16
a second-degree felony, he argues that it is still illegally recorded as a first-
degree felony, as the jury instructions were insufficient to render the jury’s
verdict unambiguous. This issue is a challenge to the legality of the sentence
imposed. See Jacobs, 39 A.3d at 977, 982 (Pa. 2012). It therefore cannot
be waived. See Commonwealth v. Jones, 932 A.2d 179, 182 (Pa. Super.
2007). Thus, Meinzer’s failure to include this issue in his concise statement
does not act as a waiver.
Turning to the merits of the argument, we note that we must construe
an ambiguity in a conspiracy conviction in favor of the defendant. See
Commonwealth v. Riley, 811 A.2d 610, 620 (Pa. Super. 2002). In Riley,
[t]he conspiracy count of the information … appears to
encompass both underlying crimes [burglary and theft] as
objects of the conspiracy. [The trial court’s] instructions to the
jury accordingly permitted the jury to find Riley guilty of
conspiracy, as a general matter, if they determined that he
committed the crime of burglary ‘and/or’ theft.
Id., at 618. Thus, we concluded that it was unclear which crime the jury
convicted Riley of conspiring to commit. See id., at 620.
Here, Meinzer’s conviction for conspiracy to commit burglary is not
ambiguous. The trial court instructed the jury that the alleged conspiracy
involved burglary. See N.T., Trial, 10/7/15, at 357. The only burglary at
issue was the burglary of an occupied residence. Meinzer’s defense at trial
was not that he burgled an unoccupied residence; rather, he argued that he
was not involved in this burglary. See N.T., Trial, 10/6/15, at 315-316.
Furthermore, the verdict sheet includes only a single count of burglary,
-3-
J-S77010-16
labeled “Burglary – Person Present.” Exhibit to Defense Objections to
Sentencing Guidelines Computation. There is no indication that Meinzer
objected to the verdict sheet when it was submitted to the jury. See N.T.,
Trial, 10/7/15, at 360-363.
There is simply no ambiguity in the jury’s verdict. The verdicts may
arguably have been inconsistent, but that is permissible under Pennsylvania
law. See Riley, 811 A.2d at 617. It is clear that the jury found Meinzer
guilty of conspiring to commit the only burglary that was before the jury. We
would be forced to imagine an alternate burglary, for which no evidence was
presented at trial, in order to accept Meinzer’s argument. As a result,
Meinzer is due no relief on appeal.
Judgment of sentence affirmed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/9/2016
-4-