Com. v. Emel, J. ( 2015 )

J-S38027-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JOSEPH S. EMEL
Appellant No. 1923 MDA 2014
Appeal from the Judgment of Sentence entered September 4, 2014
In the Court of Common Pleas of Clinton County
Criminal Division at No: CP-18-CR-0000133-2014
BEFORE: WECHT, STABILE, and MUSMANNO, JJ.
MEMORANDUM BY STABILE, J.: FILED JULY 20, 2015
Appellant, Joseph S. Emel, appeals from the judgment of sentence1
entered for his conviction of criminal conspiracy. Appellant contends the
trial court violated his due process rights in sentencing him to a crime with
which he was not charged. After review, we affirm.
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1
The trial court imposed sentence on September 4, 2014. Appellant filed a
timely post-sentence motion. In response, the trial court vacated the
judgment of sentence, even though Rule 720 provides, “[t]he judge shall
not vacate sentence pending decision on the post-sentence motion, but
shall decide the motion as provided in this paragraph.” Pa.R.Crim.P.
720(B)(3) (emphasis added). The trial court’s ultra vires vacatur of the
judgment of sentence is a legal nullity. Because of the breakdown in the
operation of the court, we will construe the trial court’s “sentence” re-
imposed on October 28, 2014, as an order denying Appellant’s post-
sentence motion.
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Appellant was an inmate at the Clinton County Correctional Facility.
He and other inmates, including his son, accused a corrections officer of
exposing his penis to them. After investigation, authorities determined the
inmates had contrived to submit a false accusation. Police charged
Appellant and his cohorts with several crimes of false reporting. The exact
charges lodged against Appellant changed several times before trial.
Following the Commonwealth’s filing of a second amended information, the
charges were: (1) solicitation to commit false reports to law enforcement
authorities;2 (2) false reports to law enforcement authorities;3 (3 and 4)
unsworn falsification to authorities;4 and (5 and 6) conspiracy to commit
unsworn falsification to authorities.5
Following the close of the Commonwealth’s case, the trial court denied
Appellant’s motion for judgment of acquittal. It then conferred with counsel
regarding the jury instructions and verdict slip. Appellant’s counsel noted
that the Commonwealth essentially alleged two acts of falsity: the false
internal grievance to prison authorities and the submission of false
statements to the Pine Creek Township Police Department, which
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2
18 Pa.C.S.A. § 902(a)
3
18 Pa.C.S.A. § 4906(a).
4
18 Pa.C.S.A. § 4904(a)(1) and (2).
5
18 Pa.C.S.A. § 903(a).
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investigated the internal grievance. During the colloquy, the following
occurred:
THE COURT: Well, it just seems to me that the best way to
submit this is one count of unsworn falsifications that the
[Appellant] did, and one count of false reports the [Appellant]
did, and then just a general count of conspiracy and let it go at
that.
***
The [jury will] have three counts: Number one, whether or not
the [Appellant] committed unsworn falsification[s] by his report
to the correctional facility; number two, whether he committed
false reports by his written statement to Pine Creek Police
Department, and three, just a general conspiracy count.
N.T. Jury Trial (Partial), 8/14/14, at 6-7 (emphasis added). Following a brief
recess, the trial court showed counsel at sidebar the verdict slip to be used.
Notwithstanding the above, the verdict slip listed count 3 as “Conspiracy to
File False Reports.” Verdict, 9/9/14 (emphasis added). The trial court
showed both counsel the verdict slip.
THE COURT: The [c]ourt has shown counsel the verdict slip
which the [c]ourt proposes to use. Mr. Ryan [i.e., the
prosecutor], any objection?
MR. RYAN: No.
THE COURT: Mr. Strouse[, i.e., defense counsel]?
MR. STROUSE: No, Your Honor.
N.T. Jury Trial (Partial), 8/14/14, at 7-8 (emphasis added). On Count 3, the
trial court then charged the jury as follows:
THE COURT: I’ve tried to simplify this for you by breaking down
the charges into three separate categories.
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Counts 1 and 2 have to do with statements made allegedly by
the [Appellant], himself. Count 3 involves conspiracy, that is, the
alleged discussion among all of the various players in this
particular case. . . .
***
Now, the third count involves the general concept of conspiracy
that involves this entire scenario that we’ve been talking about
to today, and that is the filing of the grievance report by the first
gentleman and then this admission of other reports by the other
various inmates that were part of this cell block area. The
[Appellant] is charged with conspiracy to commit the offenses of
false reports and unsworn falsifications which are the first
two counts. In Pennsylvania, joining in a conspiracy or creating
a conspiracy is itself a crime. Even if the crime that people are
planning is not carried out, the members of the conspiracy are
all responsible for the distinct crime of conspiracy. . . .
***
Now, in this case, with regard to the charge of conspiracy, the
Commonwealth alleges that the [Appellant] conspired with the
other folks in the cell block and that they would make up a story
about what the correctional officer did, and proceed with a
grievance procedure and then investigation that followed the
grievance procedure and continue to put forth false accusations
regarding the correctional officer.
Id. at 8, 12, 13-14 (emphasis added).
After completing its charge, the trial court asked counsel at sidebar
whether they had any objections. Appellant did not object. The
Commonwealth requested clarification regarding the conspiracy count, so
the trial court gave the following corrective charge:
THE COURT: When I had typed up [sic] with regard to Count 3, I
did put down conspiracy to file false reports, but the conspiracy
charge refers both to filing false reports to the Pine Creek
Township [Police Department] as well as the unsworn
falsification to the correctional facility. So anything within the
context of what we’ve been talking about today.
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Id. at 15 (emphasis added).
The jury acquitted Appellant of false reports and unsworn falsifications,
and convicted him of conspiracy. On September 4, 2015, the trial court
sentenced Appellant to 4 to 24 months in prison. Appellant filed a post-
sentence motion claiming that the jury instructions were erroneous and that
the trial court improperly sentenced him for a crime with which he was never
charged. The trial court denied the post-sentence motion, see supra, note
1, and this appeal followed.
On appeal, Appellant frames his argument as follows:
Whether the trial court erred as a matter of law by sentencing
[Appellant] on one count of conspiracy where the jury convicted
Appellant on a conspiracy offense listed on the verdict slip for
which Appellant had not been charged by the Commonwealth.
Appellant’s Brief at 8 (all-caps font removed).
Sentencing a defendant for an uncharged crime implicates due
process. See Commonwealth v. Sims, 919 A.2d 931, 938 (Pa. 2007).
Whether Appellant was “denied due process is a question of law. ‘As with all
questions of law, the appellate standard of review is de novo and the
appellate scope of review is plenary.’” Commonwealth v. Moody, 46 A.3d
765, 771 (Pa. Super. 2012) (quoting In re Wilson, 879 A.2d 199, 214 (Pa.
Super. 2005) (en banc)), appeal granted in part on other grounds, 79 A.3d
1093 (Pa. 2013).
We reject Appellant’s argument for two reasons. First, he waived any
claims of error regarding the jury instructions and jury verdict slip. Second,
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the record does not show that Appellant was convicted of an uncharged
crime.
To preserve an issue on appeal, a party must timely object.
Commonwealth v. Gonzalez, 112 A.3d 1232, 1240 (Pa. Super. 2015).
Appellant did not object to the verdict slip; thus, we cannot review
Appellant’s claim of error regarding it. “Trial counsel did not object to the
use of the verdict slip, and therefore this issue has been waived.”
Commonwealth v. duPont, 730 A.2d 970, 984-85 (Pa. Super. 1999).
Similarly, we cannot review any claim of error regarding the jury
instructions. To preserve error regarding jury instructions, a defendant must
make a specific objection at trial. Pa.R.Crim.P. 647(B); Pa.R.A.P. 302(b).
“A specific and timely objection must be made to preserve a challenge to a
particular jury instruction. Failure to do so results in waiver.”
Commonwealth v. Charleston, 16 A.3d 505, 527 (Pa. Super. 2011)
(quoting Commonwealth v. Moury, 992 A.2d 163, 178 (Pa. Super. 2010)).
Here, Appellant raised his objection to the jury charge for the first time in a
post-sentence motion. Therefore, he waived any claim of error to the
charge.6
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6
The constitutional nature of Appellant’s contention does not vitiate the
requirement to preserve error by timely objecting. See Commonwealth v.
Strunk, 953 A.2d 577, 579, 581 (Pa. Super. 2008) (noting that even
constitutional claims may not be raised for the first time on appeal, and
holding defendant waived his claim that he was denied his Sixth Amendment
(Footnote Continued Next Page)
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Second, we disagree with Appellant’s contention that the trial court
sentenced him to a crime with which he was not charged. The flaw in
Appellant’s logic is that it conflates the substantive, inchoate crime of
conspiracy with the offenses that are the object or objects of the conspiracy.
The Crimes Code defines conspiracy as follows:
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.
18 Pa.C.S.A. § 903(a). The elements of conspiracy are:
(1) the defendant intended to commit or aid in the commission
of the criminal act;[7] (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-
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(Footnote Continued)
right to a fair trial by an impartial jury when he failed to request removal of
sleeping juror).
7
Section 903 requires that the conspiracy have a criminal objective. This
clarifies the law of conspiracy, which previously extended conspiracy to any
agreement “to do any other dishonest, malicious, or unlawful act . . . .” 18
Pa.C.S.A. § 903 Official Comment – 1972 (quoting Penal Code of 1939, Act
of June 24, 1939, P.L. 872, § 302 (formerly found at 18 P.S. § 4302)); see
also Model Penal Code Commentaries pt. 1, § 5.03, at 394-97 (1985)
(explaining the purpose of the “criminal objective” requirement of Model
Penal Code § 5.03 (from which 18 Pa.C.S.A. § 903 is derived) was to narrow
the law of conspiracy).
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conspirators committed an overt act in furtherance of the agreed
upon crime.
Commonwealth v. Murphy, 844 A.2d 1228, 1238 (Pa. 2004). A
conspiracy is complete when one of the conspirators commits an overt act in
pursuance of the conspiracy. 18 Pa.C.S.A. § 903(e). “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.”
Commonwealth v. Weimer, 977 A.2d 1103, 1105-06 (Pa. 2009). In other
words, the conspiracy does not need to be successful for the conspirators to
be criminally liable.
Because conspiracy is both an inchoate offense and a distinct,
substantive crime from the object of the conspiracy, the elements of the
underlying crime are not elements of conspiracy. Rather, to convict, the
Commonwealth needed prove only that Appellant agreed with his fellow
inmates to commit a criminal act. Therefore, Appellant errs in comparing
the disparate elements of false reports and unsworn falsifications. The
record shows that the jury was charged that it could find Appellant guilty of
conspiracy based broadly on the criminal acts he and the other inmates
agreed to accomplish. The Commonwealth was not required to prove the
specific elements of the crimes that Appellant conspired to commit.
Finally, Appellant baldly claims a violation of due process based on
alleged lack of notice and inability to prepare a defense. Appellant,
however, fails to identify any prejudice incurred by the alleged lack of notice.
We find none.
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We reject Appellant’s sole assignment of error that he was convicted of
a crime with which he was not charged. Accordingly, we affirm.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/20/2015
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