Com. v. Rice, S.

J-S77024-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee

v.

SHANTE BRUCE RICE,

Appellant No. 48 MDA 2016

Appeal from the Judgment of Sentence December 16, 2014
In the Court of Common Pleas of Cumberland County
Criminal Division at No(s): CP-21-CR-0003481-2012

BEFORE: PANELLA, OLSON and PLATT,* JJ.

MEMORANDUM BY OLSON, J.: FILED MAY 02, 2017

Appellant, Shante Bruce Rice, appeals from the judgment of sentence

entered on December 16, 2014, following his jury trial convictions for

second-degree murder, criminal conspiracy to commit criminal homicide,

robbery, criminal conspiracy to commit robbery, burglary, and criminal

conspiracy to commit burglary.1 Upon review, we vacate Appellant’s

conviction and sentence for criminal conspiracy to commit criminal homicide

and affirm the judgment of sentence in all other respects.

The trial court set forth the facts of this case as follows:

On October 31, 2012, [Appellant] and [c]o-[d]efendant,
Brandon Mathna (hereinafter “Mathna”) broke a window and
entered 1 Shiloh Court in Mechanicsburg, Pennsylvania,
____________________________________________

1
18 Pa.C.S.A. §§ 2502(b), 903/2501, 3701(a)(1)(i), 903/3701(a)(1),
3502(a), and 903/3502(a), respectively.

*Retired Senior Judge assigned to the Superior Court.
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wherein they took a number of items from the residence,
including jewelry, pocket knives, jars full of coins, alcohol,
and three pistols. Two of the pistols from the Shiloh Court
property were sold, but [Appellant] maintained possession
of the third firearm, a Smith & Wesson revolver. At some
point after taking this firearm from the Shiloh Court
property, but prior to the instant homicide, Mathna, in the
presence of [Appellant], positively test fired the pistol in a
field. Afterwards, [Appellant] again took possession of the
firearm.

At roughly 10:00 p.m. on the evening of November 18,
2012, slightly less than three weeks after [Appellant] and
Mathna had broken into the Shiloh Court property and taken
the Smith & Wesson firearm, co-[d]efendant Christian
Conway (hereinafter “Conway”) received a phone call from
co-defendant [Tyler Mitchell] Bradshaw [(hereinafter
“Bradshaw”)] asking if he could pick Bradshaw up from
work. After Conway picked up Bradshaw, Bradshaw
informed Conway that they would be able to make some
money if they could also pick up [Appellant] in Carlisle.
Conway picked up [Appellant] and, at [Appellant’s] request,
they proceeded to pick up Mathna, who also lived in
Carlisle.

After Conway picked up Bradshaw, Mathna, and [Appellant],
the group began discussing plans to rob a Uni-Mart in
Mechanicsburg, and Conway drove to that location. During
the drive to the Uni-Mart in Mechanicsburg, [Appellant]
pulled out an “Angry Birds” backpack which contained the
Smith & Wesson firearm that had been taken from the
Shiloh Court property. When they arrived at the Uni-Mart in
Mechanicsburg, Conway parked in a development across the
street, and Bradshaw, Mathna, and [Appellant] exited the
vehicle and walked on foot to the Uni-Mart. Their attempt
to rob the Uni-Mart was futile, because the store was
closed, so Bradshaw, Mathna, and [Appellant] returned to
Conway’s vehicle.

After their unsuccessful attempt to rob the Uni-Mart,
Conway began driving back to Carlisle when [Appellant]
suggested that they could rob another convenience store,
specifically, the Hess Express on Carlisle Pike. On the way
to the Hess Express, the group began discussing their roles

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in the prospective robbery. [Appellant] was to go into the
store first to “look around,” and then Bradshaw and Mathna
would follow when they received word to proceed from
[Appellant]. Bradshaw would carry the gun, and Mathna
would carry the backpack. The three of them would call
Conway when they needed to be picked up after the
robbery was complete.

Conway dropped Bradshaw, Mathna, and [Appellant] off
behind the Hess Express and drove away. Bradshaw,
Mathna, and [Appellant] gathered behind a pine tree next to
the Hess Express to prepare themselves for the robbery,
and all three men again discussed their respective roles in
the robbery. At this time, Bradshaw took the firearm from
[Appellant’s] backpack. As they had discussed previously,
[Appellant] entered the convenience store first, looked
around, and called Bradshaw to proceed with the robbery.
Bradshaw and Mathna then entered the store, both wearing
gloves and masks, and proceeded to try to rob the clerk,
Linda Ness (hereinafter “Ness”). Ness was not looking
towards the doorway and center of the store when
Bradshaw first approached the counter, so Bradshaw asked
her to turn around. Bradshaw pointed the gun directly at
Ness and twice ordered her to give him money from the
register. Bradshaw fired one shot, and Ness was fatally
wounded. Ness did not have a weapon on her and did not
put up any fight. Bradshaw and Mathna ran from the store
without taking anything. Eventually, all three men were
picked back up by Conway, as planned.

By the time Sergeant Todd Lindsay of the Silver Spring
Police Department arrived at the Hess Express, Ness was
“without life.” The cause of Linda Ness’s death was
determined to be a single gunshot wound to the chest and
neck. Officer Seth Weikert, Silver Spring Township Police
Department, and Detective Les Freehling of the Cumberland
County Criminal Investigation Division interviewed
[Appellant]. [Appellant] explained that he was the first
individual seen on the Hess Station video surveillance (that
the Commonwealth produced at trial) to enter the Hess
[Express] and that, after leaving the store, he passed the
two individuals that next entered the store. [Appellant]
admitted to providing the gun to the shooter approximately
an hour before the shooting. [Appellant] said that he and

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[the] three other individuals planned the robbery at the
Hess [Express] approximately five minutes before stopping
there. Neither [Appellant] nor Bradshaw testified at trial.

Trial Court Opinion, 5/5/2016, at 2-5 (footnotes and record citations

omitted).

The Commonwealth charged Appellant with various crimes related to

the two incidents, as well as charges related to two other residential

burglaries. One residential burglary occurred the day prior to the Shiloh

Court burglary; the other occurred closely after the Hess Express robbery.

Prior to trial, Appellant filed a motion to sever the charges On July 8, 2014,

the trial court held a hearing on the motion to sever. By order of court

entered on August 26, 2014, the trial court granted Appellant’s motion to

sever in part and denied it in part. The trial court severed the burglary prior

to the Shiloh Court burglary and the burglary subsequent to the Hess

Express robbery. The trial court determined that there was a logical

connection between the Shiloh Court burglary and Hess Express robbery,

because the burglary produced the Smith & Wesson firearm that was used to

kill Linda Ness during the Hess Express robbery. The trial court determined

that evidence of the one crime was admissible as to the other, because the

evidence constituted a chain or sequence of events that formed the history

of the case under the res gestae exception to Pa.R.E. 404(b)(2).

Furthermore, the trial court also concluded, pursuant to Rule 404(b)(2), that

evidence from the Shiloh Court burglary was admissible to prove Appellant’s

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knowledge, opportunity, plans, preparations, and identity in the Hess

Express robbery.

Hence, the case that is the subject of the instant appeal proceeded

only on the charges related to the Shiloh Court burglary and Hess Express

robbery. Following a three-day trial in September 2014, the jury found

Appellant guilty of the aforementioned crimes. On December 16, 2014, the

trial court imposed an aggregate sentence of life imprisonment upon

Appellant. More specifically, the trial court imposed life imprisonment for

second-degree murder. It further imposed terms of imprisonment of 80 to

160 months for conspiracy to commit homicide, 60 to 120 months for

robbery, 40 to 80 months for conspiracy to commit robbery, 12 to 24

months for burglary, and 12 to 24 months for conspiracy to commit

burglary. These sentences were imposed concurrently to the life sentence

for second-degree murder. No direct appeal followed.

On June 1, 2015, Appellant filed a pro se petition pursuant to the Post

Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. The trial court

appointed counsel, who filed an amended PCRA petition. On December 10,

2015, the trial court held a hearing on Appellant’s amended PCRA petition.

The trial court determined that trial counsel was ineffective for failing to file

a direct appeal as directed by Appellant. Accordingly, by order entered on

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December 11, 2015, the trial court reinstated Appellant’s direct appeal rights

nunc pro tunc. This timely direct appeal resulted.2

On appeal, Appellant presents the following issues for our review:

I. Whether the trial court erred when it denied
Appellant’s motion to sever [the charges of] burglary
and criminal conspiracy to [commit] burglary [arising
from the Shiloh Court incident] from [the charges of]
robbery and homicide [relating to the events at the
Hess Express]?

II. Whether the evidence presented at trial was sufficient
to convict Appellant of [] second[-]degree murder?

III. Whether the evidence presented at trial was sufficient
to convict Appellant of criminal conspiracy to
[commit] criminal homicide?

IV. Whether the [trial] court erred when it failed to define
the “in furtherance” element during its instruction on
second[-]degree murder?

Appellant’s Brief at 8 (complete capitalization omitted).

In his first issue presented, Appellant claims, “the trial court erred

when it failed to sever the Shiloh Court burglary case from the Hess Express

robbery case.” Id. at 17. Appellant claims that his “identity was never

raised as a defense at trial nor were Appellant’s knowledge, opportunity,

plans, or preparations.” Id. at 18. He claims there was no “dispute that

____________________________________________

2
Appellant filed a notice of appeal on January 8, 2016. On January 12,
2016, the trial court directed Appellant to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant complied
timely. The trial court issued an opinion pursuant to Pa.R.A.P. 1925(a) on
May 6, 2016.

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Appellant was in possession of the firearm prior to the Hess Express

robbery” but regardless, “such evidence would have been irrelevant as to

whether a gun was used to murder Ness.” Id. Appellant contends that the

evidence would not have been admissible in separate trials because “there

was absolutely no reason the jury needed to know that the gun used in the

[Hess Express] robbery and murder had been stolen by Appellant three

weeks earlier in a burglary.” Id. Appellant contends that he was unduly

prejudiced by the trial court’s failure to sever the charges which allowed the

Commonwealth to “essentially bolster[] the testifying co-defendant’s

credibility by allowing propensity evidence that Appellant was a thief and a

criminal.” Id. at 19.

Appellate review of a trial court's denial of a motion for severance is as

follows:

A motion for severance is addressed to the sound discretion
of the trial court, and its decision will not be disturbed
absent a manifest abuse of discretion. The critical
consideration is whether the appellant was prejudiced by
the trial court's decision not to sever. The appellant bears
the burden of establishing such prejudice.

The Pennsylvania Rules of Criminal Procedure govern the
severance of offenses. Rule 583 states, “The court may
order separate trials of offenses or defendants, or provide
other appropriate relief, if it appears that any party may be
prejudiced by offenses or defendants being tried together.”
Pa.R.Crim.P. 583. Further, Rule 582 provides that offenses
may be tried jointly under the following circumstances:

Rule 582. Joinder–Trial of Separate Indictments or
Informations

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(A) Standards

(1) Offenses charged in separate indictments or
informations may be tried together if:

(a) the evidence of each of the offenses
would be admissible in a separate trial
for the other and is capable of separation
by the jury so that there is no danger of
confusion; or

(b) the offenses charged are based on the
same act or transaction.

Pa.R.Crim.P. 582(A)(1).

Commonwealth v. Mollett, 5 A.3d 291, 305–306 (Pa. Super. 2010)

(ellipsis omitted).

Appellant’s position on severance relies heavily on his contention that

the trial court erred in determining that evidence pertaining to the Shiloh

Court burglary would have been admissible at a separate trial concerning the

Hess Express robbery under Pa.R.E. 404(b). In particular, Appellant

challenges the trial court’s application of the res gestae exception in

concluding that severance was unnecessary because evidence of the Shiloh

Court and Hess Express crimes would be admissible at separate trials.

Bad acts evidence is inadmissible to prove a defendant
acted in conformity with those acts or to demonstrate a
criminal propensity. However, evidence of bad acts is
admissible pursuant to our rules of evidence to prove
motive, opportunity, intent, preparation, plan, knowledge,
identity, and absence of mistake or accident. Pa.R.E.
404(b)(2). This list is non-exclusive. Indeed, prior to the
codification of our rules of evidence, our Supreme Court set
forth the following list of exceptions to the general
prohibition against bad acts evidence:

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(1) motive; (2) intent; (3) absence of mistake or
accident; (4) a common scheme, plan or design
embracing commission of two or more crimes so
related to each other that proof of one naturally
tends to prove the others; (5) to establish the
identity of the person charged with the commission
of the crime on trial where there is such a logical
connection between the crimes that proof of one will
naturally tend to show that the accused is the person
who committed the other; (6) to impeach the
credibility of a defendant who testifies in his trial; (7)
situations where defendant's prior criminal history
had been used by him to threaten or intimidate the
victim; (8) situations where the distinct crimes were
part of a chain or sequence of events which formed
the history of the case and were part of its natural
development (sometimes called “res gestae”
exception).

Our Supreme Court has consistently recognized that
admission of distinct crimes may be proper where it is part
of the history or natural development of the case, i.e., the
res gestae exception.

[…O]ur Supreme Court [has] explained,

the “res gestae” exception to the general
proscription against evidence of other crimes, is also
known as the “complete story” rationale, i.e.,
evidence of other criminal acts is admissible “to
complete the story of the crime on trial by proving
its immediate context of happenings near in time
and place.”

Where the res gestae exception is applicable, the trial court
must balance the probative value of such evidence against
its prejudicial impact. In conducting this balancing test,

courts must consider factors such as the strength of
the “other crimes” evidence, the similarities between
the crimes, the time lapse between crimes, the need
for the other crimes evidence, the efficacy of
alternative proof of the charged crime, and “the

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degree to which the evidence probably will rouse the
jury to overmastering hostility.”

Commonwealth v. Brown, 52 A.3d 320, 325–327 (Pa. Super. 2012)

(some internal citations omitted).

In this case, in weighing the probative value of other crimes evidence

under Rule 404(b) against its prejudicial effect, the trial court relied upon

our Supreme Court’s decision in Commonwealth v. Cousar, 928 A.2d 1025

(Pa. 2007). See Trial Court Opinion, 5/5/2016, at 9. In that case, Cousar

“was charged by three separate bills of information with, inter alia, two

counts of criminal homicide and two counts of robbery” emerging from three

separate criminal episodes that all occurred within one month of each other.

Cousar, 928 A.2d at 1029 (parentheticals omitted). Therein:

On April 5, 1999, [Cousar] shot and killed Luis Santos on a
street corner at point-blank range, and stole a gold chain
necklace from around Santos's neck. Three weeks later, on
April 26, 1999, [Cousar] was seen arguing with William
Townes as [Cousar] stood on a street corner and Townes
sat in his vehicle. [Cousar] drew a gun and shot Townes
three times at close range, killing him. Thereafter, on May
6, 1999, [Cousar], together with three compatriots, forcibly
entered Frank Schoenberger's home, robbed and beat him
at gunpoint, and fled when the police arrived. An officer
apprehended [Cousar] as he was running from the scene.
The following day, Schoenberger discovered that the
intruders had left a handgun inside his home. Police
firearms experts identified the gun as the weapon used to
kill Santos and Townes. All three incidents took place within
several blocks of [Cousar’s] place of residence in the
Hunting Park section of Philadelphia.

Id. at 1029.

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In deeming consolidation of the offenses from the three distinct crimes

proper in Cousar, our Supreme Court concluded:

a crucial piece of evidence linking the two homicides was
the use of the same gun. Any conclusion drawn by the jury
concerning whether [Cousar] was the person who used that
weapon to kill Santos would bear upon the identity of the
individual who shot Townes, and vice versa. Furthermore,
[our Supreme Court] believe[d] the jury was able to
separate the evidence pertaining to the two homicides
because each was (obviously) committed against a different
victim, none of the eyewitnesses to the two incidents
overlapped, and different investigating officers testified at
trial as to each crime. [Our Supreme Court] acknowledge[d]
the potential for prejudice from consolidation, as the
evidence tying [Cousar] to one of the murders could have
affected the jury's consideration of whether [Cousar] was
guilty of the other one. In determining whether
other-crimes evidence is admissible, however, the trial court
must balance this type of potential prejudice against the
probative value of the evidence in question. Here, as
explained above, the evidence was very probative, and
thus, it would not be unreasonable to conclude that its
probative value outweighed the potential for such prejudice.

Along these lines, in considering [Cousar’s] suggestion
concerning the potential introduction of the Schoenberger
evidence at hypothetical separate murder trials, it may be
noted that such proof would not have had the same
probative value if used in this manner: it would only have
tended to prove that the murder weapon used in each
homicide was left in the Schoenberger residence by either
[Cousar] or one of the three other assailants involved in
that case. By contrast [] the proof that the gun that
witnesses placed in [Cousar’s] hands during the Santos
killing was also used to kill Townes carried significant
additional probative value as to the identity of Townes's
killer, and vice versa. Under these circumstances, even if
the Commonwealth could have proceeded on the murder
charges separately as [Cousar] suggest[ed], [the
Pennsylvania Supreme Court] conclude[d] that the trial
court acted within its discretion in permitting consolidation.

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J-S77024-16

Id. at 1038-1039.

In this case, the trial court severed the burglaries that occurred before

and after the Shiloh Court burglary and Hess Express robbery. However, the

trial court declined to sever the Shiloh Court burglary and Hess Express

crimes from each other. As the trial court explained,

[T]he res gestae exception applied to the Shiloh Court
burglary and Hess Express crimes. These incidents took
place within three weeks of one another, only a few miles
apart from one another, and [Appellant] was a key actor in
both incidents. The firearm which was used to kill Linda
Ness in the Hess Express robbery was the fruit of the Shiloh
Court burglary. As such, [the trial court] found that such
evidence “was part of the natural development of facts,” as
contemplated by [our Supreme Court]. These two crimes,
as well as [Appellant’s] actions in the time between crimes,
formed one complete story which shows [Appellant’s]
knowledge, opportunity, plan and preparation for the Hess
Express crimes.

[The trial court] further found that the Shiloh Court burglary
was admissible for the allowable purpose of proving
[Appellant’s] knowledge, opportunity, plans, preparations,
and specifically, [Appellant’s] identity. That [Appellant]
took three firearms from the Shiloh Court property, sold two
of them, and kept the third was admissible to show that
[Appellant] was planning and preparing for another robbery
(which by opportunity later was Hess Express). Mathna’s
testimony that [Appellant] kept possession of the Smith &
Wesson pistol following the Shiloh Court burglary showed
that [Appellant] had the opportunity to bring the firearm in
the Angry Birds backpack on that night and proves the
identity of [Appellant] as a co-conspirator [in the Hess
Express incident]. That [Appellant] and Mathna test-fired
the pistol in a field showed [Appellant’s] knowledge that the
firearm worked and was capable of being used in the
prospective robbery, thereby negating any claim of accident
or mistake.

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The [trial court] further found that the probative value of
the evidence outweighed its potential for prejudice. In []
Cousar, the Supreme Court upheld the trial court’s decision
to conduct a single trial on [Cousar’s] two murder charges
and two robbery charges, despite the fact that these four
charges arose from three separate incidents. The Supreme
Court found the fact that [Cousar] possessed the firearm in
question at the scene of the second murder to be probative
of the whether [Cousar] had committed the other crimes for
which he was being tried.

* * *

Similarly, in the present case, [the trial court] found the fact
that [Appellant was the source of the firearm used at the
Hess Express robbery and homicide], is highly probative of
the fact that it was [Appellant] who burglarized the Shiloh
Court property and stole the firearm. Conversely, the fact
that [Appellant] took the firearm from the Shiloh property
just a few weeks before the homicide makes it more
probable that [Appellant] was the perpetrator who had
possession of the firearm on the night of the Hess Express
robbery and homicide. While the admission of such
evidence is prejudicial to [Appellant], the probative value of
such evidence outweighed any prejudice resulting
therefrom. Thus, [the trial court] found that evidence from
the Shiloh Court incident would be admissible in a separate
trial for the Hess Express incident, and vice versa.

* * *

[Moreover,] the Shiloh Court burglary and Hess [E]xpress
robbery and homicide involved distinct types of crimes, each
crime involved different victims, and the crimes were
distinguishable in time and space. Furthermore, although
[Appellant] and Mathna were involved in both the Shiloh
Court burglary and Hess Express crimes, the Hess Express
crimes involved different co-defendants who were not
involved in the Shiloh Court burglary. Although Mathna
testified about all of the crimes, numerous other witnesses
testified about the Shiloh Court and Hess Express crimes
individually, without overlap. As such, the [trial court]
found that the jury was capable of separating the evidence
of each offense, and found very little chance that the jury

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would be confused. […] To further eliminate any confusion
by the jury, [the trial court] twice gave the jury an
instruction on the separation of such evidence[.]

* * *

[Finally, Appellant] was not unduly prejudiced by the joint
trial and evidence of the Shiloh Court and Hess Express
crimes. As discussed previously, [the trial court] saw little
danger that the jury would be incapable of separating the
evidence of each crime. There was not a significant threat
that the jury would inappropriately cumulate the evidence
to find [Appellant] guilty of [all] crimes. The [trial court]
found that the Shiloh Court burglary and the Hess Express
robbery and homicide were sufficiently intertwined as to
justify a joint trial. As such, the only prejudice [Appellant]
suffered was the type of general prejudice any defendant
suffers when the Commonwealth’s evidence links him to the
crime for which he is being prosecuted[.]

[The trial court] note[d] that it did not so find the same in
weighing the prejudice to [Appellant] in admitting the other
two burglaries the Commonwealth sought to introduce at
trial. Although notably such crimes would have been
admissible to prove common scheme, plan, motive, intent
or lack of accident, and such evidence would have been
capable of separation by the jury, the [trial court] found
that [Appellant] would be unduly prejudiced by the
admission of the burglaries it excluded. No criminal fruits of
the other two burglaries were used during the commission
of the Hess Express crimes. As such, those [burglary]
crimes, albeit highly relevant, were more attenuated than
was the Shiloh Court burglary evidence that was allowed in
at trial. Accordingly, [the trial court] excluded [the] two
other burglary charges and evidence attendant thereto
during the instant trial.

Trial Court Opinion, 5/5/2016, at 8-12 (citations and footnotes omitted).

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We agree and discern no abuse of discretion in consolidating the two

cases for trial. Initially, we reject Appellant’s suggestion that knowledge,

opportunity, plans, preparation and/or his identity were not issues at trial.3

Appellant does not argue that the crimes were not close in time and

proximity. In addition, Appellant concedes that the jury was capable of

separating the evidence between the Shiloh Court burglary and the Hess

Express robbery and murder. Appellant’s Brief at 19. Moreover, we

conclude the trial court properly relied upon the res gestae exception to Rule

404(b) in denying severance. Appellant fails to address the trial court’s

finding that the intervening events between the burglary and robbery were

relevant to understanding Appellant’s role in both the robbery and murder.

Evidence from both crimes showed Appellant’s acquisition, possession,

testing, and control over the firearm, all of which were pivotal components

of the Commonwealth’s burden of showing Appellant’s participation in both

episodes. More specifically, the trial court recognized that Appellant stole
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3
Indeed, even on appeal to this Court, viewing the evidence in the light
most favorable to himself, Appellant attempts to minimize his involvement in
the Hess Express robbery and murder by suggesting that the murder was
not in furtherance of the robbery and that it took place after he left the
store. Appellant’s Brief at 22-23. Appellant also suggests that he did not
know his co-defendant would use the firearm in the robbery. Id. at 23.
Clearly, these contentions relate specifically to knowledge, opportunity,
planning, preparation and/or identity. Moreover, since the Commonwealth
bore the burden of proof to show Appellant’s participation in the crimes as
either a principal actor or co-conspirator (or both), Appellant’s possession
and control of the firearm played key roles at trial despite Appellant’s
position as to what issues he contested before the factfinder.

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the firearm in the burglary, later test-fired it (which showed Appellant’s

knowledge that the weapon was working and capable of use), and, in turn,

presented it to his co-defendant before the robbery. Trial Court Opinion,

5/5/2016, at 9. The trial court found that evidence linking the firearm to

both crimes was highly probative in each prosecution and outweighed the

prejudice to Appellant. Based upon our Supreme Court’s decision in

Cousar, we discern no abuse of discretion.

Appellant’s second and third issues both challenge the sufficiency of

the evidence. When examining a challenge to the sufficiency of evidence,

our standard of review is as follows:

The standard we apply in reviewing the sufficiency of the
evidence is whether viewing all the evidence admitted at
trial in the light most favorable to the verdict winner, there
is sufficient evidence to enable the fact-finder to find every
element of the crime beyond a reasonable doubt. In
applying [the above] test, we may not weigh the evidence
and substitute our judgment for the fact-finder. In addition,
we note that the facts and circumstances established by the
Commonwealth need not preclude every possibility of
innocence. Any doubts regarding a defendant's guilt may
be resolved by the fact-finder unless the evidence is so
weak and inconclusive that as a matter of law no probability
of fact may be drawn from the combined circumstances.
The Commonwealth may sustain its burden of proving every
element of the crime beyond a reasonable doubt by means
of wholly circumstantial evidence. Moreover, in applying
the above test, the entire record must be evaluated and all
evidence actually received must be considered. Finally, the
trier of fact while passing upon the credibility of witnesses
and the weight of the evidence produced, is free to believe
all, part or none of the evidence

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Commonwealth v. Beasley, 138 A.3d 39, 45 (Pa. Super. 2016) (citation

omitted).

In his second issue presented, Appellant contends there was

insufficient evidence to convict him of second-degree murder under the

theory that he conspired to commit the Hess Express robbery, an

enumerated felony.4 Appellant’s Brief at 20-23. More specifically, Appellant

claims, “the evidence was insufficient to show that [co-defendant]

Bradshaw’s slaying of Ness was in furtherance of the robbery.” Id. at 22.

He further avers that there was insufficient evidence that Appellant knew his

co-defendant would use the firearm in the robbery:

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4
We note that the trial court examined this issue as one involving
Appellant’s liability as an accomplice to criminal homicide and robbery. See
Trial Court Opinion, 5/5/2016, at 12-15 generally; see also id. at 13 n.54
(“Notably, [Appellant] was charged with accomplice liability to homicide and
to the robbery [in the Commonwealth’s a]mended information [filed] on
June 11, 2014.”). However, upon review of the amended information filed
on June 11, 2014, the Commonwealth never charged Appellant as an
accomplice. With respect to the Hess Express incident, the amended
information charged Appellant with second-degree murder, criminal
conspiracy to commit criminal homicide, robbery, and criminal conspiracy to
commit robbery. The information incorporated the language from 18
Pa.C.S.A. § 903 (criminal conspiracy) for both the criminal conspiracy to
commit criminal homicide and criminal conspiracy to commit robbery
charges. Moreover, the jury’s verdict and the trial court’s judgment of
sentence reflect convictions for conspiracy to commit both criminal homicide
and robbery. Therefore, in reviewing Appellant’s sufficiency challenge, we
shall consider whether the Commonwealth proved beyond a reasonable
doubt that Appellant, as a co-conspirator in the robbery of the Hess Express,
was criminally liable for second-degree murder in the death of the
convenience store clerk.

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In fact, Appellant specifically stated that he wanted nothing
to do with the firearm. There was no evidence that
Appellant commanded Bradshaw to take the firearm or that
Appellant knew that Bradshaw intended to brandish the
firearm during the robbery.

Id. at 23.

Regarding conspiracy, our Supreme Court has held:

To convict a defendant of conspiracy, the trier of fact must
find that: (1) the defendant intended to commit or aid in
the commission of the criminal act; (2) the defendant
entered into an agreement with another (a “co-conspirator”)
to engage in the crime; and (3) the defendant or one or
more of the other co-conspirators committed an overt act in
furtherance of the agreed upon crime. The essence of a
criminal conspiracy [] is the agreement made between the
co-conspirators.

As with accomplice liability, “[m]ere association with the
perpetrators, mere presence at the scene, or mere
knowledge of the crime is insufficient” to establish that a
defendant was part of a conspiratorial agreement to commit
the crime. There needs to be some additional proof that the
defendant intended to commit the crime along with his
co-conspirator. Direct evidence of the defendant's criminal
intent or the conspiratorial agreement, however, is rarely
available. Consequently, the defendant's intent as well as
the agreement is almost always proven through
circumstantial evidence, such as by the relations, conduct or
circumstances of the parties or overt acts on the part of the
co-conspirators.

Commonwealth v. Murphy, 844 A.2d 1228, 1238 (Pa. 2004) (internal

quotations and citations omitted).

Moreover, an en banc panel of this Court has determined:

Once there is evidence of the presence of a conspiracy,
conspirators are liable for acts of co-conspirators committed
in furtherance of the conspiracy. Even if the conspirator did
not act as a principal in committing the underlying crime, he

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is still criminally liable for the actions of his co-conspirators
taken in furtherance of the conspiracy.

The general rule of law pertaining to the culpability of
conspirators is that each individual member of the
conspiracy is criminally responsible for the acts of his
co-conspirators committed in furtherance of the conspiracy.
The co-conspirator rule assigns legal culpability equally to
all members of the conspiracy. All co-conspirators are
responsible for actions undertaken in furtherance of the
conspiracy regardless of their individual knowledge of such
actions and regardless of which member of the conspiracy
undertook the action.

The premise of the rule is that the conspirators have formed
together for an unlawful purpose, and thus, they share the
intent to commit any acts undertaken in order to achieve
that purpose, regardless of whether they actually intended
any distinct act undertaken in furtherance of the object of
the conspiracy. It is the existence of shared criminal intent
that is the sine qua non of a conspiracy.

Commonwealth v. Lambert, 795 A.2d 1010, 1016–1017 (Pa. Super.

2002) (en banc).

Regarding second-degree murder, we have stated:

Murder of the second degree is a criminal homicide
committed while a defendant was engaged as a principal or
an accomplice in the perpetration of a felony.
[…P]erpetration of a felony [is defined] as:

the act of the defendant in engaging in or being an
accomplice in the commission of, or an attempt to
commit, or flight after committing, or attempting to
commit robbery, rape, or deviate sexual intercourse
by force or threat of force, arson, burglary or
kidnapping.

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J-S77024-16

The malice or intent to commit the underlying crime is
imputed to the killing to make it second-degree murder,
regardless of whether the defendant actually intended to
physically harm the victim.[5]

[Our Supreme Court discussed] the elements of
[co-conspirator] liability for felony murder [by] saying that:

... the responsibility of persons, other than the
slayer, for a homicide committed in the perpetration
of a felony require[s] proof of a conspiratorial design
by the slayer and the others to commit the
underlying felony and of an act by the slayer causing
death which was in furtherance of the felony.
Moreover, […w]hen an actor engages in one of the
statutorily enumerated felonies and a killing occurs,
the law, via the felony-murder rule, allows the finder
of fact to infer the killing was malicious from the fact
the actor was engaged in a felony of such a
dangerous nature to human life because the actor,
as held to the standard of a reasonable man, knew
or should have known that death might result from
the felony.

[O]ur Supreme Court [has] explained that not only the
killer, but all participants in a felony, including the getaway

____________________________________________

5
Further, we have stated:

The Commonwealth is not relieved of the burden to prove
that the defendant engaged in the underlying felony with
the requisite mens rea. Since each crime enumerated in
the felony-murder statute is a crime of specific intent, the
Commonwealth must prove such intent. Once such intent is
shown, the felony-murder doctrine merely imputes the
malice incident to the intentional felony over to the killing,
which, moreover, must be accomplished in furtherance of
the intentional felony.

Commonwealth v. Rawls, 477 A.2d 540, 543 (Pa. Super. 1984) (emphasis
in original).

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J-S77024-16

driver, are equally guilty of felony murder when a killing by
a felon occurs.

The statute defining second[-]degree murder does not
require that a homicide be foreseeable; rather, it is only
necessary that the accused engaged in conduct as a
principal or an accomplice in the perpetration of a felony.
Whether evidence sufficiently indicates that a killing was in
furtherance of a predicate felony can be a difficult question.
The question of whether the killing was in furtherance of the
conspiracy is a question of proof for the jury to resolve. It
does not matter whether the appellant anticipated that the
victim would be killed in furtherance of the conspiracy.
Rather, the fact finder determines whether the appellant
knew or should have known that the possibility of death
accompanied a dangerous undertaking.

Lambert, 795 A.2d at 1022–1023 (original brackets, quotations and

citations omitted).

Here, the trial court determined there was ample direct and

circumstantial evidence of a conspiracy:

[Appellant] was the one who provided the ultimate murder
weapon, mere minutes before the murder occurred.
[Appellant] also was the one to identify the Hess Express as
the target of the robbery. […T]he nature of and extent of
the conspiracy was developed at trial. Both Mathna and
Conway testified that [Appellant] and the others discussed
their roles in the Hess Express robbery as they drove to the
scene of the crime and they prepared for the robbery
behind a pine tree next to the store. Conway testified that,
while driving to the location of the Hess Express, the group
discussed who was going to actually pull the gun out [] in
the impending robbery. [Appellant] was aware the gun was
going to be used in the robbery. Furthermore, [Appellant]
was aware that the firearm was functional, and Conway’s
testimony that [Appellant] “said he didn’t want anything to
do with the gun because he didn’t want to shoot nobody []”
demonstrated that [Appellant] knew that using the firearm
in the robbery might result in someone getting shot and
killed. The evidence showed that [Appellant] conspired with

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the others to actively plan the crime, and he committed acts
in furtherance of the crime when he gave Bradshaw the gun
and entered the store as a look out.

Trial Court Opinion, 5/5/2016, at 17-18 (record citations, footnotes, and

some quotations omitted).6

We also conclude there was sufficient evidence to establish that

Bradshaw killed Ness in furtherance of the Hess Express robbery, which

Appellant conspired to commit. Our review of the record confirms there was

evidence showing that Appellant conspired to rob the Hess Express

convenience store. Here, a co-conspirator shot and killed Linda Ness after

demanding money. Even though Appellant did not act as a principal in

committing the robbery or murder, his status as a co-conspirator in the

robbery made him criminally liable for the actions of his confederates taken

in furtherance of the conspiracy. Based upon this evidence, the jury

permissibly determined that the killing was in furtherance of the robbery.

Further, the intent to commit the robbery is imputed to the killing of Linda

Ness to support a finding of second-degree murder against all participants in
____________________________________________

6
While this analysis was offered by the trial court in addressing the
sufficiency challenge to Appellant’s conviction for conspiracy to commit
homicide conviction, this factual conclusion supports the theory that
Appellant conspired to commit robbery. Moreover, Appellant does not argue
there was insufficient evidence to support his convictions for robbery and
conspiracy to commit robbery. Because there was sufficient evidence of a
conspiracy to commit robbery, which Appellant does not challenge, Appellant
was liable for all of the crimes committed in furtherance of the robbery,
including second-degree murder.

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J-S77024-16

the conspiracy, regardless of whether actual harm was intended or foreseen.

Hence, we conclude there was sufficient evidence to support Appellant’s

conviction for second-degree murder.

In his third issue presented, Appellant argues that the Commonwealth

did not present sufficient evidence to support his conviction for conspiracy to

commit homicide.7 Appellant’s Brief at 23-25. More specifically, and similar
____________________________________________

7
To understand our disposition fully, we briefly review the factual and
procedural backdrop of this conviction. The Commonwealth charged
Appellant in the amended criminal information with homicide generally and
conspiracy to commit homicide. The jury verdict form asked the jury to first
determine if it found Appellant guilty of criminal conspiracy to commit
homicide. Then, if the jury found Appellant guilty of conspiracy to commit
homicide, it was to specify the degree of homicide under the conspiracy.
The verdict form reflects that the jury found Appellant guilty of criminal
conspiracy to commit criminal homicide and then fixed the degree of
homicide as second-degree. Verdict Form, 9/12/2014. In its subsequent
order announcing the judgment of sentence and throughout its Rule 1925(b)
opinion, the trial court still refers to the conviction as criminal conspiracy to
commit criminal homicide generally. See Order, 12/17/2014, at 1
(unpaginated); see also Trial Court Opinion, 5/5/2016, at 1, 15-18.
Moreover, the trial court sentenced Appellant to 80 to 160 months for
conspiracy to commit homicide. Under the Crimes Code, inchoate crimes,
such as conspiracy, have the same maximum sentences as the underlying
crimes to which they relate. Commonwealth v. Hoke, 962 A.2d 664, 668
(Pa. 2009), citing 18 Pa.C.S.A. §§ 106(b) and 905(a). Thus, upon the jury’s
finding that Appellant was guilty of conspiracy to commit second-degree
murder, the trial court should have sentenced Appellant to
life-imprisonment. Thus, the judgment of sentence on this conspiracy
conviction does not align with the jury’s verdict. We note these
inconsistencies, however, only to show the trial court’s apparent confusion
surrounding the conspiracy to commit homicide charge. Nevertheless, we
need not resolve these sentencing issues because, as discussed at length
infra, 18 Pa.C.S.A. § 903(c) prohibits multiple conspiracy convictions for
multiple crimes that are the object of the same agreement or continuous
conspiratorial relationship.

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to his previous argument, Appellant maintains, “the evidence was insufficient

to prove that Appellant knew Bradshaw would use a firearm during the Hess

Express robbery” or that he “conspired with his co[-]defendants to bring

about harm to Ness.” Id. at 24. We read this claim as an assertion that

there was only one conspiratorial agreement with a single objective.

The conspiracy statute contains the following provision:

(c) Conspiracy with multiple criminal objectives.--If a
person conspires to commit a number of crimes, he is guilty
of only one conspiracy so long as such multiple crimes are
the object of the same agreement or continuous
conspiratorial relationship.

18 Pa.C.S.A. § 903(c).

This Court has stated:

Section 903(c) articulates a concept which is not new in
American jurisprudence, “‘The conspiracy is the crime, and
that is one, however diverse its objects.’” Braverman v.
United States, 317 U.S. 49, 54 (1942), quoting Frohwerk
v. United States, 249 U.S. 204, 210 (1919). See also W.
LaFave and A. Scott, CRIMINAL LAW § 62 (1972) (“An
agreement to commit several crimes is but one
conspiracy.”). In Braverman, supra, the Supreme Court
went on to explain that, “the single agreement is the
prohibited conspiracy, and however diverse its objects it
violates but a single statute....” Id., 317 U.S. at 54.

[…T]his principle [has] been further defined:

A single, continuing conspiracy is demonstrated
where the evidence proves that the essential feature
of the existing conspiracy was a common plan or
scheme to achieve a common, single, comprehensive
goal.... A single, continuing conspiracy may
contemplate a series of offenses, or be comprised of
a series of steps in the formation of a larger, general
conspiracy.... Therefore, where the evidence at trial

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is sufficient for the jury to infer that the essential
features of the existing conspiracy were a common
plan or scheme to achieve a common, single,
comprehensive goal or end, then the conclusion that
the conspiracy was a single, continuing conspiracy is
justified.

Commonwealth v. Troop, 571 A.2d 1084, 1089–1090 (Pa. Super. 1990);

see also Commonwealth v. Henkel, 487 A.2d 1010, 1013 (Pa. Super.

1985) (“[C]onspiracy is not severable as to diverse crimes contemplated by

a single agreement[.]”).

In determining whether a single or multiple conspiracy has been

established, we consider several relevant factors:

The factors most commonly considered in a totality of the
circumstances analysis of the single vs. multiple
conspiracies issue are: 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.

Commonwealth v. Davis, 704 A.2d 650, 654 (Pa. Super. 1997) (ellipsis

omitted).

Here, as set forth in detail above, the conspiratorial agreement was to

rob the Hess Express by threat of force with a firearm. A shooting occurred,

which ultimately caused the death of the victim. The criminal acts took

place simultaneously at the same location, and while pursuing the same

common objective. Because the homicide occurred as a result of a single,

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comprehensive goal to commit robbery, Appellant cannot be punished for

two separate conspiracies. See Commonwealth v. Barnes, 924 A.2d 1202

(Pa. 2007) (defendant's and co-conspirators' conduct in selling cocaine,

robbing victim, and murdering victim was result of one continuous

conspiratorial relationship and could support only one conviction for

conspiracy to deliver cocaine, that crime being the underlying foundation of

agreement upon which conspiracy charges were based; events occurred

within one 24-hour period, and all pertinent events took place in the same

location, involved the same actors, and were in furtherance of the same

objective). The homicide here occurred in furtherance of a single

conspiratorial goal – the robbery of the Hess Express.8 Accordingly, we

vacate Appellant’s judgment of sentence for conspiracy to commit homicide.

____________________________________________

8
As we have explained, Appellant was liable for the second-degree murder
regardless of an agreement to harm or kill the victim. Although Appellant
supplied an operable firearm for the robbery, there is simply no evidence of
record that there was a separate conspiracy to harm or kill the victim.
Finally, even if there were a separate conspiracy to kill the victim, this Court
recently questioned the viability of a conviction for conspiracy to commit
second-degree murder:

The Crimes Code does not expressly set forth that one can
be found guilty of second-degree murder as a conspirator.
Other jurisdictions have determined that one cannot
conspire to commit felony murder. Evanchyk v. Stewart,
340 F.3d 933, 939–940 (9th Cir. 2003) (holding that, under
Arizona law, one cannot conspire to commit felony murder);
see also Evanchyk v. Stewart, 47 P.3d 1114, 1119
(2002); State v. Wilson, 43 P.3d 851, 853–854 (2002)
(opining that Kansas does not recognize the crime of
(Footnote Continued Next Page)

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However, because the trial court imposed a concurrent sentence for

Appellant’s conspiracy to commit homicide conviction, we have not upset the

trial court’s sentencing scheme and we need not remand this case for

resentencing. See Commonwealth v. Thur, 906 A.2d 552, 570 (Pa.

Super. 2006) (finding no need for remand because vacating sentence did not

disturb sentencing scheme where that sentence was concurrent with other

terms and did not increase the aggregate length of incarceration).

Finally, in this fourth issue presented, Appellant argues the trial court

erred by failing to define the term “in furtherance of” in its jury instruction

regarding the elements of second-degree murder, as set forth under

Pennsylvania Suggested Standard Jury Instruction 2502B. Appellant’s Brief

at 25-26. He claims that “[t]he omission of this definition amounted to a

fundamental error because [the trial court] failed to define an essential

element of proof required for a jury to return a verdict of guilty.” Id. at 26.

_______________________
(Footnote Continued)

conspiracy to commit felony murder because conspiracy
requires a specific intent). This Court has also repeatedly
noted that one cannot attempt to commit felony murder
because an attempt is a specific intent crime, as is
conspiracy. Commonwealth v. Spells, 612 A.2d 458, 460
n.5 (Pa. Super 1992); Commonwealth v. Griffin, 456
A.2d 171, 177 (Pa. Super. 1983). We note, however, that
our Supreme Court has concluded that one can conspire to
commit third-degree murder, which does not require proof
of a specific intent to kill. Commonwealth v. Fisher, 80
A.3d 1186 (Pa. 2013).

Commonwealth v. Mitchell, 135 A.3d 1097, 1101 n.2 (Pa. Super. 2016).

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This issue is waived. Appellant did not make an on-the-record,

contemporaneous objection when the trial court reviewed the relevant

portion of its instructions to the jury. See N.T., 9/10/2014, at 181, 185;

N.T., 9/11/2014, at 73-74 (no objection to written form jury instructions).

“Issues not raised in the [trial] court are waived and cannot be raised for the

first time on appeal.” Pa.R.A.P. 302(a). “[I]t is axiomatic that issues are

preserved when objections are made timely to the error or offense.”

Commonwealth v. Baumhammers, 960 A.2d 59, 73 (Pa. 2008). “The

purpose of contemporaneous objection requirements respecting trial-related

issues is to allow the court to take corrective measures and, thereby, to

conserve limited judicial resources.” Commonwealth v. Sanchez, 36 A.3d

24, 42 (Pa. 2011). “[A] party may not remain silent and afterwards

complain of matters which, if erroneous, the court would have corrected.”

Commonwealth v. Strunk, 953 A.2d 577, 579 (Pa. Super. 2008).

Accordingly, Appellant waived his fourth appellate issue.

Conviction and sentence for conspiracy to commit homicide vacated.

Judgment of sentence affirmed in all other respects. Jurisdiction

relinquished.

Judge Panella joins.

Judge Platt files a Concurring and Dissenting Memorandum.

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Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 5/2/2017

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