[J-69-2019] [MO: Donohue, J.]
IN THE SUPREME COURT OF PENNSYLVANIA
EASTERN DISTRICT
COMMONWEALTH OF PENNSYLVANIA, : No. 3 EAP 2019
:
Appellee : Appeal from the Order of Superior
: Court entered on September 7,
: 2018 at No. 2883 EDA 2016,
v. : reversing and affirming the
: Judgment of Sentence entered on
: August 31, 2016 in the Court of
JIMEL KING, : Common Pleas, Philadelphia
: County, Criminal Division at No. CP-
Appellant : 51-CR-0007769-2015.
:
: ARGUED: September 11, 2019
CONCURRING AND DISSENTING OPINION
JUSTICE MUNDY DECIDED: July 21, 2020
I join Parts I and II of the majority opinion. I agree with the rejection of King’s claim
that the Commonwealth’s failure to provide technical notice of its intent to seek the
enhanced sentence for attempted murder causing serious bodily injury under 18 Pa.C.S.
§ 1102(c) resulted in an illegal sentence. Majority Opinion at 20-21. However, for the
reasons that follow, I respectfully dissent from Part III of the majority opinion, which holds
that King’s sentences for attempted murder and conspiracy to commit aggravated assault
were illegal under 18 Pa.C.S. § 906.1 Id. at 31.
1Section 906 provides “[a] person may not be convicted of more than one of the inchoate
crimes of criminal attempt, criminal solicitation or criminal conspiracy for conduct
designed to commit or to culminate in the commission of the same crime.” 18 Pa.C.S.
§ 906. We have interpreted the term “convicted” to mean “the entry of a judgment of
sentence, rather than a finding of guilt by the jury.” See Commonwealth v. Jacobs, 39
A.3d 977, 983 (Pa. 2012) (plurality).
In order to conclude that King’s sentences for attempted murder and conspiracy to
commit aggravated assault were impermissible, the majority first insists “the jury did not
find King guilty of both conspiracy to commit [murder] and conspiracy to commit
aggravated assault[,]” but rather only conspiracy to commit murder. Id. If this were the
case, Section 906 would plainly preclude separate sentences for attempted murder and
conspiracy to commit murder, as each inchoate offense was clearly designed to culminate
in the commission of the same crime of murder. However, the verdict sheet indicates the
jury found King guilty of conspiracy to commit murder and conspiracy to commit
aggravated assault. Neither the Commonwealth nor King dispute the fact that King was
found guilty of both conspiracy to commit murder and conspiracy to commit aggravated
assault. A review of the verdict sheet in this matter further dispels any confusion on this
point. See Attached Verdict Sheet (Redacted). Notwithstanding the intent the
Commonwealth or King had regarding the two conspiracy charges, the verdict sheet
plainly shows the jury found King guilty of two separate counts of conspiracy. 2 Because
of this, King maintains that both conspiracy convictions were improper under 18 Pa.C.S.
§ 903(c).3 However, despite his conviction for both crimes, King was only penalized for
conspiracy to commit aggravated assault. Therefore, King’s sentence for conspiracy to
commit aggravated assault does not offend Section 903(c).
2 King’s argument is premised upon his understanding that he was convicted of two
conspiracy counts. Nevertheless, the record is devoid of any evidence that King objected
to the verdict sheet or otherwise preserved the argument the majority now relies on that
the conspiracy counts on the verdict slip, in fact, represented aspects of only one general
count of conspiracy.
3 Section 903(c) provides that “[i]f 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. § 903(c). The majority
bypasses an extensive portion of King’s argument addressing Section 903(c) by
summarily concluding there was only one conspiracy.
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The majority alternatively reasons that even if convicted of two conspiracies, King’s
sentences for attempted murder and conspiracy to commit aggravated assault violate
Section 906. King’s sentences for these offenses do not run afoul of Section 906. The
majority broadly interprets the phrase “designed to commit or to culminate in the
commission of the same crime” as used in Section 906, leading it to conclude that both
attempted murder and conspiracy to commit aggravated assault were intended to
culminate in the commission of the same crime, specifically the murder of the victim.
However, these crimes were not necessarily designed to culminate in the commission of
the same crime in the narrowest sense, as the object crime of murder requires the specific
intent to kill, while aggravated assault merely requires the intent to cause serious bodily
injury. See 18 Pa.C.S. §§ 1102(a), 2702(a).
Finally, I am unpersuaded that a narrow interpretation is inconsistent with our
precedent addressing Section 906 in either Commonwealth v. Graves, 508 A.2d 1198
(Pa. 1986) (per curiam), or Commonwealth v. Jacobs, 39 A.3d 977 (Pa. 2012) (plurality).
In Graves, this Court affirmed Graves’ separate sentences for conspiracy and solicitation
related to an incident during which Graves and fellow members of a motorcycle gang
attacked three undercover police officers. We explained that these offenses did not
merge under Section 906 because “each was directed at a different end[,]” specifically
“[t]he conspiracy was for the purpose of furthering an assault with several co-defendants
upon three police officers; the solicitation to murder had as its object the death of one of
the officers.” Graves, 508 A.2d at 1198. In Jacobs, this Court affirmed Jacobs’ separate
sentences for attempted escape and conspiracy to commit escape related to his failed
attempt to escape from county jail along with fellow-inmate Frank Seretich. We explained
that “each inchoate crime had a separate criminal purpose: the attempt was to culminate
in [Jacobs’] escape, and the conspiracy was to culminate in either Seretich’s or both of
[J-69-2019] [MO: Donohue, J.] - 3
their escapes.” Jacobs, 39 A.3d at 986. Similar to Graves and Jacobs, King’s inchoate
crimes had distinct purposes, one to kill and another to seriously injure the victim.
Indeed, I agree with the Superior Court’s conclusion in Commonwealth v. Kelly, 78
A.3d 1136 (Pa. Super. 2012), that Section 906 does not preclude separate sentences for
attempted murder and conspiracy to commit aggravated assault. Kelly was convicted
and sentenced separately for several offenses, including attempted murder and
conspiracy to commit aggravated assault arising from a shooting incident involving one
victim. The majority reasoned that the offenses of attempted murder and conspiracy to
commit aggravated assault are not designed to culminate in the commission of the same
crime, specifically, murder.4 Id. at 1145. The majority therefore construed the statute in
a narrow sense and found that “[s]ince aggravated assault and murder are not the same
crime, [Section 906] does not automatically apply to the conspiracy to commit aggravated
assault and attempted murder convictions.” Id. Despite reaching this conclusion, the
majority vacated Kelly’s conspiracy conviction on the separate basis that the jury’s
general conspiracy verdict was ambiguous. Id. at 1146.
Like Kelly, King’s separate sentences for attempted murder and conspiracy to
commit aggravated assault were not improper because these offenses were not designed
to culminate in the commission of the same crime. Unlike Kelly, however, there is no
ambiguity concerning the jury’s conspiracy verdicts in this case. As explained previously,
the jury’s verdict indicates that it found two separate conspiratorial objectives, one to
seriously injure and one to kill the victim. For this reason, King’s sentences for attempted
4 The majority further supported this position by noting that these offenses would not
merge under traditional merger principles because each offense included an additional
element absent from the other. In particular, the majority reasoned that “attempted
murder requires a specific intent to kill, which conspiracy to commit aggravated assault
does not, and the conspiracy crime requires an agreement that is not included in
attempted murder.” Kelly, 78 A.3d at 1145.
[J-69-2019] [MO: Donohue, J.] - 4
murder and conspiracy to commit aggravated assault are inchoate crimes that did not
result in the commission of the same crime under Section 906. Adopting the majority’s
broad interpretation of Section 906 results in no punishment for King’s involvement in a
conspiracy. I would not find King entitled to such a windfall.
Accordingly, I join Parts I and II of the majority opinion but dissent from Part III.
Justice Dougherty joins this concurring and dissenting opinion.
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[J-69-2019] [MO: Donohue, J.] - 6