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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
LAFAYETTE MILLER,
Appellant No. 2272 EDA 2015
Appeal from the Judgment of Sentence of June 15, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0007177-2013
BEFORE: OLSON, OTT and MUSMANNO, JJ.
MEMORANDUM BY OLSON, J.: FILED NOVEMBER 03, 2016
Appellant, Lafayette Miller, appeals from the judgment of sentence
entered on June 15, 2015, as made final by the denial of his post-sentence
motion on June 25, 2015. We affirm.
The factual background and procedural history of this case are as
follows. On April 5, 2013, Appellant and Phonso Simmons robbed Simon Tan
(“Tan”) at gunpoint in the foyer of an apartment building owned by Tan. On
June 12, 2013, The Commonwealth charged Appellant via criminal
information with robbery,1 criminal conspiracy,2 burglary,3 possession of a
1
18 Pa.C.S.A. § 3701(a)(1)(ii).
2
18 Pa.C.S.A. § 903.
3
18 Pa.C.S.A. § 3502(a)(1).
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firearm by a prohibited person,4 carrying a firearm without a license,5
carrying a firearm on the streets of Philadelphia,6 possessing an instrument
of crime,7 and aggravated assault.8
On March 10, 2015, a jury found Appellant guilty of conspiracy;
however, the jury found Appellant not guilty of possessing an instrument of
crime and aggravated assault. The remaining charges were nolle prossed.9
On June 15, 2015, Appellant was sentenced to 8½ to 20 years’
imprisonment. On June 23, 2015, Appellant filed a post-sentence motion.
On June 25, 2015, the trial court denied the motion. This timely appeal
followed.10
Appellant presents one issue for our review:
Did the trial court impose an illegal sentence by failing to
interpret the vague [v]erdict [form] in Appellant’s favor?
Appellant’s Brief at 4.
4
18 Pa.C.S.A. § 6105(a)(1).
5
18 Pa.C.S.A. § 6106(a)(1).
6
18 Pa.C.S.A. § 6108.
7
18 Pa.C.S.A. § 907(a).
8
18 Pa.C.S.A. § 2702(a).
9
The trial court declared a mistrial as to the robbery and burglary charges;
however, the Commonwealth later nolle prossed those two charges.
10
Appellant and the trial court complied with Pennsylvania Rule of Appellate
Procedure 1925.
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In his lone issue, Appellant argues that the trial court incorrectly
graded his conspiracy conviction as a first-degree felony. He argues that the
trial court should have graded his conspiracy conviction as a first-degree
misdemeanor because the verdict form did not identify which offense
Appellant conspired to commit. Cf. 18 Pa.C.S.A. § 905(a) (“[A]ttempt,
solicitation[,] and conspiracy are crimes of the same grade and degree as
the most serious offense which is attempted or solicited or is an object of the
conspiracy.”). Thus, according to Appellant, his conspiracy conviction must
be graded the same as the lowest graded object offense, i.e., a first-degree
misdemeanor. The Commonwealth, on the other hand, argues that
Appellant’s claim does not relate to the legality of his sentence. Rather, the
Commonwealth argues that Appellant’s argument relates to the grading of
his conviction. As Appellant’s statement of questions involved only
addresses the legality of his sentence, the Commonwealth argues that he
waived his lone claim included in the argument section of his brief. See
Pa.R.A.P. 2101, 2116(a). Moreover, the Commonwealth contends that even
if Appellant preserved his claim, the trial court properly graded Appellant’s
conspiracy conviction as a first-degree felony.
We agree with Appellant that his claim implicates the legality of his
sentence. The Commonwealth cites Commonwealth v. Spruill, 80 A.3d
453 (Pa. 2013), in support of its argument that Appellant’s claim does not
implicate the legality of his sentence. In Spruill, however, the defendant
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was seeking an arrest of judgment. Thus, our Supreme Court determined
that she challenged the underlying conviction, not the legality of her
sentence. See id. at 462. In this case, Appellant concedes that he was
lawfully convicted of conspiracy. He argues, however, that the conviction
should not have been graded as a first-degree felony. As this Court recently
stated, “the proper grading of an offense pertains to the legality of the
sentence. . . . Our standard of review over such questions is de novo and
our scope of review is plenary.” Commonwealth. v. Aikens, 139 A.3d
244, 245 (Pa. Super. 2016) (citations omitted). Therefore, waiver is not
appropriate under Rules 2101 and 2116 and we proceed to consider the
merits of Appellant’s argument.
Appellant argues that the jury’s verdict was vague because the verdict
form did not specify which offense he conspired to commit. Thus, according
to Appellant, the jury could have found him guilty of conspiring to commit a
first-degree misdemeanor offense. Our Supreme Court, however, has
previously rejected a similar argument. In Commonwealth v. Jacobs, 39
A.3d 977 (Pa. 2012), the verdict form was similarly vague with respect to a
conspiracy conviction. The defendant in Jacobs made the same argument
that Appellant makes in this case, i.e., that the vague jury verdict must be
interpreted in the manner most favorable to the defendant. Our Supreme
Court rejected this argument and held that a trial court may consider “the
record, including the evidence, the [charging document], and the jury
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instructions” when determining what crime a jury finds as the object of a
conspiracy. Id. at 985.
In this case, the trial court correctly concluded that the jury found
Appellant guilty of conspiring to commit robbery. Specifically, the criminal
information in this case charged Appellant with conspiracy to commit
robbery, trespass, and assault. See Criminal Information, 6/12/13, at 1-2.
During trial, the Commonwealth pursued only the charge of conspiracy to
commit robbery. This is evidenced by the assistant district attorney’s closing
argument. During argument the Commonwealth made clear that the aim of
prosecution was to convict Appellant of conspiracy to commit robbery, not
conspiracy to commit trespass or conspiracy to commit assault. See N.T.,
3/9/15, at 47, 62. Most importantly, the jury instructions addressing
conspiracy only discussed conspiracy to commit robbery. See N.T., 3/9/15,
at 92 (Appellant “is charged with conspiracy to commit robbery.”). There is
no mention in the jury instructions of conspiracy to commit trespass or
conspiracy to commit assault. Viewed in its entirety, the record indicates
that the jury found Appellant guilty of conspiring to commit robbery.
Appellant relies upon this Court’s decision in Commonwealth v.
Riley, 811 A.2d 610 (Pa. Super. 2002), in support of his argument that the
trial court erred by grading his conspiracy conviction as a first-degree felony.
Riley, however, supports the trial court’s determination. In Riley, like in
the case at bar, the defendant was charged with conspiring to commit
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several offenses. Unlike in the case at bar, however, the trial court in Riley
instructed the jury that it could find the defendant guilty of conspiring to
commit any of the object offenses listed in the criminal information. See id.
at 618 (citation omitted) (“Thus, you may find the [d]efendant guilty if you
are satisfied that he conspired with at least one alleged co-conspirator to
commit at least one alleged object crime[.]”). In view of these
circumstances, this Court felt compelled to conclude that the trial court
lacked a basis to hold that the jury found Riley guilty of the more serious
offense of conspiracy to commit burglary because it was “impossible to tell
from the jury’s general verdict which underlying crime the jury determined
Riley conspired to commit.” Id. at 618-619. As noted above, the opposite
occurred in the case sub judice. Here, the trial court specifically instructed
the jury that it could find Appellant guilty of conspiracy only if it found that
he conspired to commit robbery. See N.T., 3/9/15, at 92. Thus, following
the same rationale that this Court applied in Riley, the trial court properly
determined that the jury convicted Appellant of conspiracy to commit
robbery.11
11
Advancing his claims, Appellant relies exclusively on the generality of the
verdict form. Both Jacobs and Riley, however, permit the trial court to
consider other material, including jury instructions, in ascertaining the object
of a conspiracy. See Jacobs, 39 A.3d at 985 (trial court may consider, inter
alia, jury instructions in determining object of conspiracy); Riley, 811 A.2d
at 620 (general conspiracy verdict to be resolved in defendant’s favor as a
conspiracy to commit the least serious underlying offense only “in the
absence of clear evidence of the jury’s intent to the contrary”). Here, the
(Footnote Continued Next Page)
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Appellant also argues that grading his conspiracy conviction as a first-
degree felony leads to an inconsistent verdict because the jury did not reach
a verdict on the robbery charge. This argument is without merit. “[U]nder
longstanding federal and state law, [inconsistent verdicts] are allowed to
stand so long as the evidence is sufficient to support the conviction.”
Commonwealth v. Tucker, 143 A.3d 955, 965 (Pa. Super. 2016) (citations
omitted). Thus, we may not rely upon the jury’s inability to reach a verdict
on the robbery charge when determining whether it properly convicted
Appellant of conspiracy to commit robbery. Therefore, the trial court
properly graded the conspiracy charge the same as the object offense of
robbery, a first-degree felony. Accordingly, Appellant’s sentence is legal.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/3/2016
_______________________
(Footnote Continued)
jury instructions supported the trial court’s determination that the jury found
that Appellant conspired to commit robbery.
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