Commonwealth v. Weimer , 602 Pa. 33 ( 2009 )

OPINION

Justice EAKIN.

On January 26, 2001, appellant and Curtis Haith fought— appellant sustained a black eye and split lip. Appellant solicited Joseph Stenger and two other unidentified men to retaliate. The four made a stop to retrieve weapons (a baseball bat and a crow bar), then drove to Haith’s home. While the two unidentified men hid near the door, appellant lured Haith outside; the two men beat him with the weapons, while appellant repeatedly kicked him and bit his right hand. Stenger got out of the vehicle and shot Haith in the face; the bullet entered his left cheek, exited near his mouth, and produced only superficial wounds. Haith died the following day from the head trauma sustained during the attack.

Police interviewed appellant later that day, at which time she handed over the mud and blood-splattered clothing she was wearing during the attack. Appellant was not arrested until 2004, after she confessed to her ex-boyfriend that she participated in the attack on Haith. Forensic evidence indicated the mud on appellant’s clothing was consistent with soil samples from the crime scene, and her dental molds matched the bite mark on Haith’s hand.

Appellant was charged with criminal homicide and conspiracy to commit criminal homicide, plus assault charges. A jury found appellant guilty of third degree murder and conspiracy to commit criminal homicide. Notably, the criminal homicide verdict slip provided the option of finding appellant guilty of first degree murder, third degree murder, voluntary manslaughter, or not guilty; the jury indicated third degree murder. The conspiracy verdict slip read “Criminal Conspiracy-Criminal Homicide,” and the jury wrote the word “Guilty” below the charge, which provided no gradation options.

At sentencing, the trial court improperly referred to appellant’s conspiracy conviction as “criminal conspiracy to commit murder in the third degree.” N.T. Sentencing Hearing, 4/19/06, at 4. The original sentencing orders perpetuated the error; listed at improper docket numbers, these orders identified the convictions as “Criminal Homicide Murder 3rd Degree (F-l),” and “Criminal Conspiracy Murder 3rd Degree (F-l).” Sentencing Orders at No. 1496 of 2004, 4/18/06, & No. 1496-1/4 of 2004, 4/19/06. The sentencing orders were amended to reflect the correct docket numbers, but both amended orders still identified the charge as “Criminal Conspiracy Murder 3rd Degree (F-l).” Amended Sentencing Orders at Nos. 498 & 498-1/4 of 2004, 4/19/06. Both the original and amended orders set forth the same sentence: 12 and one-half to 25 years imprisonment for the murder conviction, and a consecutive two and one-half to five years imprisonment for the conspiracy conviction.

The trial court denied appellant’s timely motion to modify sentence, in which she argued her third degree murder and conspiracy to commit criminal homicide charges merged for sentencing purposes. Appellant filed a direct appeal, raising several claims, including whether the conspiracy count was based on insufficient evidence. The trial court held the evidence was sufficient to support the conspiracy verdict; thus, it deemed meritless her argument regarding the validity of the criminal conspiracy to commit homicide verdict. The Superior Court affirmed.

This Court granted allowance of appeal, limited to the issue of “[w]hether it is possible, as a matter of law, to be convicted of conspiracy to commit murder in the third degree?” Commonwealth v. Weimer, 594 Pa. 32, 934 A.2d 1148 (2007) (Table). “As this is a purely legal question, our standard of review is de novo,” and our scope of review is plenary. In re Milton Hershey School, 590 Pa. 35, 911 A.2d 1258, 1261 (2006) (citation omitted). Appellant argues:

It is not possible under the law to commit the crime of conspiracy to commit murder in the third degree. The essence of third degree murder is a homicide that occurs as the unintended consequence of a malicious act. It is impossible for one to intend to commit an unintentional act.

Appellant’s Brief, at 10 (citation omitted). Appellant’s claim is rooted in sufficiency. “Specifically, [appellant] argues that the Commonwealth failed to present sufficient evidence ... to establish beyond a reasonable doubt that she was guilty of the crimes charged.... ” Id., at 12.¹

Our Superior Court has dealt with various cases involving conspiracy and third degree murder. See Commonwealth v. Johnson, 719 A.2d 778, 785-86 (Pa.Super.1998) (en banc) (defendant can be charged with conspiracy to commit third degree murder because death was natural and probable consequence of such attack, even if defendant did not personally participate in killing); Commonwealth v. La, 433 Pa.Super. 432, 640 A.2d 1336, 1345 (1994) (if killing is natural and probable consequence of co-conspirator’s conduct, murder is not beyond scope of conspiracy); Commonwealth v. Bigelow, 416 Pa.Super. 449, 611 A.2d 301, 304 (1992) (defendant’s participation in conspiracy supported third degree murder conviction as victim’s death was natural and probable consequence of co-conspirator’s conduct); see also Commonwealth v. Wanamaker, 298 Pa.Super. 283, 444 A.2d 1176, 1178 (1982) (defendant’s conduct revealed conscious disregard of great risk of inflicting death or serious bodily harm upon victim— manifested malice constituted criminal conspiracy to commit third degree murder); but see Commonwealth v. Clinger, 833 A.2d 792, 795-96 (Pa.Super.2003) (because it is impossible for one to intend to commit an unintentional act, it is impossible to commit crime of conspiracy to commit third degree murder).

The flaw in appellant’s argument is factual — the jury found appellant guilty of conspiracy to commit criminal homicide, not conspiracy to commit third degree murder. See Criminal Conspiracy — Criminal Homicide Verdict Slip, 4/7/06. Appellant was neither charged with nor convicted of conspiracy to commit any specific degree of murder, much less third degree murder — as such, the issue for which we granted allowance of appeal can only be addressed by putting the proverbial rabbit in the hat, for it is not made out by these facts. Whatever intellectual appeal the syllogism of the appellant’s argument may have, it begs the question. One may certainly be convicted of conspiracy to commit homicide, and the jury’s decision to convict of murder in the third degree does not render the preexisting conspiracy a nonentity.

Put another way, the ultimate gradation of the crime accomplished does not in and of itself delimit the degree of crime originally planned — the crime ultimately accomplished does not retroactively limit the scope of the original conspiracy. A jury’s determination of the degree of homicide accomplished does not limit the conspiracy’s scope. If appellant conspired to intentionally, knowingly, recklessly, or negligently cause the death of Haith, she may be found guilty regardless of which of those adverbs are found or not found by the jury.

To sustain a criminal conspiracy conviction, the Commonwealth must establish a defendant entered into an agreement to commit or aid in an unlawful act with another person or persons, with a shared criminal intent, and an overt act was done in the conspiracy’s furtherance. 18 Pa.C.S. § 903;² Commonwealth v. Rios, 546 Pa. 271, 684 A.2d 1025, 1030 (1996) (citations omitted). The overt act need not accomplish the crime — it need only be in furtherance thereof. In fact, no crime at all need be accomplished for the conspiracy to be committed.

The evidence showed appellant solicited Stenger and two other men to drive to Haith’s home; after appellant lured him outside, the two men clubbed Haith while appellant kicked him repeatedly, and Stenger shot Haith in the face at close range. Clearly, this evidence supported the jury’s finding appellant conspired to cause Haith’s death. See 18 Pa.C.S. § 2501(a). The evidence clearly supported the jury’s finding appellant entered in an agreement to commit or aid in the unlawful act alleged with Stenger and two others, and an overt act was done in the conspiracy’s furtherance. See id., § 903. Accordingly, appellant’s conspiracy to commit criminal homicide conviction was proper, and we affirm the Superior Court’s order.

Jurisdiction relinquished.

Chief Justice CASTILLE, Justice BAER and McCAFFERY and Justice GREENSPAN join the opinion. Justice GREENSPAN files a concurring opinion in which Chief Justice CASTILLE joins. Justice TODD files a dissenting opinion in which Justice SAYLOR joins.

1 . The Commonwealth, to its discredit, declined to file a brief in the present matter.

2 . Section 903 provides, in relevant part:

(a) Definition of conspiracy. — A person is guilty of conspiracy with another person or persons to commit a crime if with the intent of promoting or facilitating its commission he:

(1) agrees with such other person or persons that they or one or more of them will engage in conduct which constitutes such crime or an attempt or solicitation to commit such crime; or

(2) agrees to aid such other person or persons in the planning or commission of such crime or of an attempt or solicitation to commit such crime.

(b) Scope of conspiratorial relationship. — If a person guilty of conspiracy, as defined by subsection (a) of this section, knows that a person with whom he conspires to commit a crime has conspired with another person or persons to commit the same crime, he is guilty of conspiring with such other person or persons, to commit such crime whether or not he knows their identity.

(e) Overt act. — No person may be convicted of conspiracy to commit a crime unless an overt act in pursuant of such conspiracy is alleged and proved to have been done by him or by a person with whom he conspired.

18 Pa.C.S. § 903(a)-(b),(e).