COMMONWEALTH of Pennsylvania, Appellee v. Andre JACOBS, Appellant.
39 A.3d 977
Supreme Court of Pennsylvania.
Decided Feb. 21, 2012.
Submitted March 14, 2011.
All sorts of people in all sorts of situations identify themselves without a word-there really is such a thing as “someone who needs no introduction,” and these officers in this situation were just such people. Had these officers been undercover, rather than merely in plain clothes, others might not know their identity or official purpose, and no crime would be committed by lying to them. However, when identity and purpose are clearly recognized by any reasonable sentient person, and in fact were manifestly understood by this less-than-naïve subject and the attendant crowd of jeering onlookers, the circumstances afford sufficient proof that the officers identified themselves and their purpose. Accordingly, I must dissent.
Francesco Lino Nepa, Michael Wayne Streily, Pittsburgh, Allegheny County District Attorney‘s Office, for Commonwealth of Pennsylvania.
BEFORE: CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, ORIE MELVIN, JJ.
OPINION ANNOUNCING THE JUDGMENT OF THE COURT
Justice BAER.
Appellant Andre Jacobs was convicted and sentenced for attempted escape and conspiracy to commit escape. We accepted review to determine whether Appellant‘s sentences for these two inchoate crimes are illegal under
In the early morning hours of January 12, 2006, Seretich fell to his death while trying to escape from his window with a 225-foot makeshift rope composed of bed sheets, uniforms, and towels. Although Seretich‘s rope was long enough to reach the ground, he apparently lost his grip while descending. Upon discovering his body at 6:00 a.m., authorities instituted a lock-down and unit search to investigate his death. During the ensuing investigation, authorities looked first into Seretich‘s cell, where they discovered the makeshift rope, with one end attached to the bed. They further discovered that the interior Lexan window in Seretich‘s cell had been removed and was on the floor, that the screen had been cut and pushed aside, that the metal window bar was missing and could not be located in the cell, and a one-by-four inch hole in the wall between Appellant‘s and Seretich‘s cells.
In Appellant‘s cell, from which Appellant had been removed to permit the investigation, authorities discovered that Appellant‘s interior window was similarly removed, the exterior screen was similarly cut and pushed aside, and the metal
Appellant was charged with possession of implements of escape, attempted escape, and conspiracy to commit escape.3 The attempt and conspiracy charges specifically related to escape. Escape is defined as follows: “A person commits an offense [of escape] if he unlawfully removes himself from official detention....”
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.
The criminal information alleged that Appellant attempted to escape when, “with intent to commit the crime of Escape, [he] ... assembled ropes, clothes and blankets, [and] removed the window[,] which constituted a substantial step toward the commission of the aforesaid crime [of escape]....” Appellant‘s Brief at 8. With respect to conspiracy to commit escape, the
At Appellant‘s trial, the Commonwealth presented much of the testimony detailed above through personnel from the Allegheny County Police Department and the Allegheny County Department of Corrections, who had recovered evidence from Seretich‘s and Appellant‘s cells that allegedly showed a conspiracy had been entered between the two inmates, which had as its objective an escape by both inmates or Seretich alone. Specifically, the Commonwealth introduced evidence that after Seretich‘s fall, jail personnel discovered that Seretich‘s interior window and metal bar had been removed, and the window and rope were in his cell. The Commonwealth also presented evidence of the hole in the wall between Appellant‘s and Seretich‘s cells, and testimony that after Seretich fell, Appellant admitted that he pulled the rope up and threw it into Seretich‘s cell through the broken window. The Commonwealth additionally introduced the evidence found in Appellant‘s cell, including Appellant‘s removed interior window, the screen that had been cut and pushed aside, the metal pry bar that was used to remove the rivets from both inmates’ windows, the metal bars removed from both inmates’ windows, and strips of cloth.
Appellant‘s defense was that he had the misfortune to be assigned a cell next-door to Seretich, and there was no direct evidence that Appellant had anything to do with Seretich‘s escape. Specifically, Appellant testified that he did not attempt to escape, did not plan to escape with Seretich, and was not aware Seretich was attempting to escape that morning. According to Appellant, he had no knowledge of the evidence discovered in his cell; he did not make the hole in the wall between his cell and Seretich‘s; he did not admit that he
At the close of trial, the court instructed the jury with regard to conspiracy in accord with the statutory language of Section 903(a) as follows, in relevant part:
Before any Defendant can be convicted, all 12 jurors must agree on the same person whom the Defendant allegedly conspired with, the same object of the crime and the same overt act.
In order to find the Defendant guilty of conspiracy to commit escape, you must be satisfied that the following three elements have been proven beyond a reasonable doubt: First, that the Defendant agreed with the other person, that is, Frank Seretich, that one or more of them would engage in conduct for the planning and/or commission of the crime of escape; second that the Defendant and the other person intended to promote or facilitate the crime of escape; in other words, they shared the intention to bring about that crime or to make it easier to commit the crime; and third, that the Defendant or the other person did the acts that are alleged to be overt acts and did them in furtherance of their conspiracy.
Notes of Testimony (N.T.) April 23-28, 2008, at 214.
The jury returned a guilty verdict on all counts. Concerning the conspiracy, the verdict was a general one, with no special findings regarding the object of the conspiracy. On July 1, 2008, Appellant was sentenced to two concurrent terms of sixteen to thirty-two months of imprisonment for attempted escape and conspiracy to commit escape, and a consecutive term of thirty-three to sixty-six months for possession of escape tools, for an aggregate term of forty-nine to ninety-eight months.
Appellant filed his statement of issues complained of on appeal pursuant to
In its opinion pursuant to Rule 1925(a), the trial court rejected Appellant‘s three sufficiency arguments. Relevant to this appeal, with respect to the conspiracy conviction, the trial court rejected Appellant‘s contention that there was insufficient evidence that Appellant and Seretich agreed to assist each other in their escape attempts. The trial court found instead that the evidence was sufficient for the conspiracy conviction based on the items found in Appellant‘s cell, the hole between the cells, and Seretich‘s escape.
Regarding Appellant‘s Section 906 sentencing issue, the trial court agreed with Appellant that it had improperly sentenced him for both attempted escape and conspiracy to commit escape in violation of Section 906 because both inchoate crimes were solely directed toward the commission of the crime of escape. Because Appellant had already filed a notice
On appeal to the Superior Court, Appellant challenged the trial court‘s rejection of his sufficiency challenges and the imposition of two distinct sentences for the two inchoate crimes of attempt and conspiracy. Appellant agreed with the trial court‘s assessment of his Section 906 challenge and requested a remand to allow the trial court to correct this perceived sentencing error. Regarding Section 906, the Commonwealth responded that Appellant‘s sentences were proper because each inchoate crime had a separate criminal objective. Specifically, the Commonwealth argued that Appellant‘s sentence for attempted escape pertained to his actions in attempting his own escape, whereas his sentence for conspiracy to commit escape involved his effort to assist in Seretich‘s escape from jail. Consequently, according to the Commonwealth, the bar on multiple sentences for inchoate crimes in Section 906 was not implicated because each inchoate crime was designed to culminate in the commission of a separate and distinct crime.
The Superior Court agreed with the trial court‘s rejection of Appellant‘s sufficiency claims. The Superior Court disagreed, however, with the trial court‘s 1925(b) analysis of Section 906. In accord with the Commonwealth‘s argument, the Superior Court held that the evidence, including the fact that Seretich escaped, however briefly, demonstrated that the conspiracy
Upon further appeal to this Court, we granted review to address whether Appellant‘s separate sentences for attempted escape and conspiracy to commit escape were barred by Section 906‘s prohibition of multiple sentences for inchoate crimes designed to culminate in the commission of the same crime. As this question relates to the legality of sentence, it presents a question of law. See Commonwealth v. Gordon, 596 Pa. 231, 942 A.2d 174 (2007). When addressing such questions of law, we employ a plenary scope of review, and our standard of review is de novo. Id. As this case requires us to engage in statutory interpretation, we are mindful of our paramount objective to give effect to the intent of our General Assembly in enacting the particular statute under review. See
The full text of Section 906 of the Crimes Code, entitled “Multiple convictions of inchoate crimes barred,” provides as follows: “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.”
Applying Section 906, we have held that “inchoate crimes merge only when directed to the commission of the same crime, not merely because they arise out of the same incident.” Commonwealth v. Graves, 510 Pa. 423, 508 A.2d 1198, 1198 (1986) (per curiam). In determining whether inchoate crimes are directed to the commission of the same crime, we have taken a narrow view of the object crime. In Graves, for example, the defendant was convicted and sentenced for criminal conspiracy and criminal solicitation for his part in an incident in which he conspired with fellow gang members to assault three police officers, and individually solicited one gang member to murder one police officer. Id. at 1199 (Zappala, J., dissenting). Consecutive sentences were imposed for the conspiracy and solicitation. On appeal, this Court approved of the two sentences. We held that our review of the record revealed that even though the two inchoate crimes arose out of the “same incident,” they were
Accordingly, pursuant to the plain language of Section 906, if, in the case before us, the attempted escape and conspiracy to commit escape were designed to culminate in the same crime, then Appellant may only receive one judgment of sentence. If, on the other hand, the attempt and conspiracy did not share the same criminal objective, the two sentences did not run afoul of Section 906‘s prohibition. Because Appellant asserts and the Commonwealth agrees that the attempt sentence was premised on Appellant‘s own attempted escape, the question is whether the record demonstrates that the conspiracy to commit escape was designed to culminate in Appellant‘s escape, Seretich‘s escape, or both. To the extent the conspiracy was designed to culminate solely in Appellant‘s escape, then it shared the objective of the attempt and the two sentences cannot stand. If, however, the conspiracy was designed to culminate in Seretich‘s escape alone, it did not share the same criminal objective as the attempt, and Section 906 does not bar the two sentences. If the goal of the conspiracy was the escape of both men, then the conspiracy had two separate criminal objectives, and the two sentences were proper. Indeed, Appellant, for his part, does not assert that Section 906 is violated if the conspiracy had two objectives, one of which was his escape. Rather, his argument is that the attempt and conspiracy had only one objective: his escape alone. With this framework in mind, we address the parties’ arguments.
Appellant argues that the jury could possibly have concluded one of three alternatives, i.e., that the objective of the conspiracy was solely his escape; solely Seretich‘s escape; or the escape of both men. As support for this position, Appellant relies generally on the evidence presented at trial; he
To the extent the jury could have concluded that the object of the conspiracy to commit escape was the same as the object of the attempted escape, specifically, to achieve solely Appellant‘s escape, Appellant argues that the jury‘s verdict is ambiguous. According to Appellant, we should resolve this ambiguity in his favor. As support for his position, Appellant directs our attention to a Superior Court case, Commonwealth v. Riley, 811 A.2d 610, 620-21 (Pa.Super.2002), which held that “in the absence of clear evidence of the jury‘s intent to the contrary, a general conspiracy verdict must be resolved in favor of the defendant, and may be construed only as a conviction of conspiracy to commit the least serious underlying offense for which the jury could properly have found the defendant to have conspired to commit.”
Appellant also argues that we must resolve any ambiguity in the jury‘s verdict in his favor to be consistent with the philosophical undergirding of Apprendi v. New Jersey, 530 U.S. 466, 490 (2000), which held that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved
The Commonwealth responds that it is apparent from the record that the jury‘s verdict evinced a specific finding that the conspiracy verdict was premised on Appellant‘s involvement, at least in part, in Seretich‘s escape. The Commonwealth argues that a finding that the goal of the conspiracy was Appellant‘s escape alone was not a possibility, because, based on the evidence presented and the arguments of counsel pertinent to the issue of conspiracy, the only question for the jury to decide was whether Appellant was involved in Seretich‘s escape. Because it was never put before the jury that the object of the conspiracy was solely Appellant‘s escape, there was no ambiguity in the guilty verdict.
Upon our review of the record, including the evidence, the criminal information, and the jury instructions, we are in material agreement with the Commonwealth. Turning first to the evidence presented at trial, it demonstrated that Seretich fell to his death during a botched escape. During the investigation, a hole was discovered between Seretich‘s and Appellant‘s cell, and the metal bar from Seretich‘s window was found in Appellant‘s cell, as was a metal pry bar used to remove the interior Lexan glass from both Seretich‘s and Appellant‘s windows. Both men had removed the Lexan glass and pushed aside the screen in the same manner, using the same tools. Strips of cloth similar to those used in Seretich‘s rope were found in Appellant‘s cell. After Seretich fell, according to the Commonwealth‘s evidence, Appellant reached out of the window and pulled the rope back inside. It was therefore established that Seretich technically had escaped,
Given the surreptitious nature of conspiracy, the existence of a formal agreement is often proven circumstantially, such as by “the relations, conduct, or circumstances of the parties or overt acts on the part of co-conspirators.” Commonwealth v. Johnson, 604 Pa. 176, 985 A.2d 915, 920 (2009) (quoting Commonwealth v. Spotz, 552 Pa. 499, 716 A.2d 580, 592 (1998)). To that end, in order to place this evidence in context, the Commonwealth conveyed to the jury that the evidence demonstrated the objective of the conspiracy was either an escape by both men or by Seretich alone. During closing arguments, the Commonwealth described the conspiracy between Appellant and Seretich as having as its object Seretich‘s escape, with Appellant acting as a look-out. N.T. April 23-28, 2008, at 196 (“They both busted out their windows, and [Appellant] acted as Frank Seretich‘s lookout. Frank Seretich took the opportunity to exit first, and maybe [Appellant] was not going to escape at all. Maybe he wasn‘t going to even escape at all. He acted as Mr. Seretich‘s co-conspirator.“); id. at 200, 985 A.2d 915 (“We have all these other pieces of material that suggest that they agreed to escape together or at least [Appellant] helped [Seretich] to escape. And that‘s the conspiracy.“); id. at 198, 985 A.2d 915 (“[Seretich] is dead, and this is the man that acted in concert with Mr. Seretich.“).
At trial, Appellant completely denied involvement in any criminal conduct. Thus, there were three scenarios placed before the jury: (1) Appellant and Seretich agreed that Seretich would escape; (2) Appellant and Seretich agreed that they both would escape; or (3) there was no agreement at all. However, there was no evidence or argument that the objective of the conspiracy was Appellant‘s escape alone, as Appellant now asserts.
Given the evidence adduced at trial and the theories argued to the jury, the interpretation of the evidence proffered by Appellant on appeal was never presented as a possibility to
We now turn to the criminal information and jury charge. Appellant bases his argument in part on language in the criminal information alleging that he “conspired and agreed with Frank Seretich that they or one or more of them would” escape, Appellant‘s Brief at 9, and, similarly, on the trial court‘s jury charge that to find Appellant guilty of conspiracy, the jury had to find that Appellant agreed with Seretich that “one or more of them would” escape. N.T. at 214.
Although the phrase “one or more of them” allowed for the theoretical possibility that Appellant and Seretich agreed solely that Appellant would escape, as explained above, there was no evidence presented to support this theory. Given the evidence that was placed before the jury, the only issue for them to decide with regard to the conspiracy charge was whether Appellant was involved in Seretich‘s escape, or whether he was simply an innocent bystander who had the misfortune to be assigned the cell next to Seretich. By finding Appellant guilty of conspiracy, the jury clearly agreed with the Commonwealth that at least one of the criminal purposes of the conspiracy was Seretich‘s escape. Consequently, although the criminal information and jury charge did not expressly identify the object of the conspiracy, and theoretically allowed for the possibility that the conspiracy was solely for Appellant‘s escape, it was made clear to the jury in
Moreover, by employing this specific language, both the criminal information and the trial court tracked the statutory definition of conspiracy. See
Appellant argues that the Superior Court‘s decision in Riley supports his argument that an ambiguous jury verdict must be read in a defendant‘s favor. In Riley, the defendant was charged with conspiracy, burglary, and theft by unlawful taking or disposition. The jury found the defendant guilty of conspiracy, but not of the remaining charges. Because the statutory maximum sentence for conspiracy is based on the object crime, a sentence for conspiracy to commit burglary would have far exceeded a sentence for conspiracy to commit theft by unlawful taking or disposition. Although it was not clear which object crime the jury‘s verdict was premised on, the sentencing court believed it was appropriate to sentence him consistent with conspiracy to commit burglary. On appeal, the Superior Court agreed with the defendant that grading his conspiracy conviction as the more serious offense of conspiracy to commit burglary was erroneous. The court held that “in the absence of clear evidence of the jury‘s intent to the contrary, a general conspiracy verdict must be resolved in favor of the defendant, and may be construed only as a conviction of conspiracy to commit the least serious underlying offense for which the jury could properly have found the defendant to have conspired to commit.” 811 A.2d at 620.
Appellant also relies on Apprendi, in which the United States Supreme Court held that, with limited exception, judicial findings which result in punishment beyond statutory maximums must be submitted to a jury and proved beyond a reasonable doubt. Appellant does not argue that his sentence violates Apprendi, but simply urges us to be consistent with Apprendi‘s directive. Because there is no argument, however, that our rejection of Appellant‘s Section 906 argument will result in a sentence beyond the statutory maximum, Apprendi simply is not implicated either directly or by compelling analogy. Moreover, there was no judicial finding of fact that increased Appellant‘s maximum term of imprisonment. Appellant‘s reliance on the Superior Court decision in Johnson is likewise misplaced, as Johnson turned on a direct violation of Apprendi. See 910 A.2d 60.
Finally, to the extent Appellant faults the general verdict here for not specifying the object of the conspiracy, we observe that there is no authority for special verdicts in criminal trials, and “[t]he proposal of special verdicts in criminal trials to determine what issues the jury actually resolved has been almost universally condemned.” Commonwealth v. Samuel, 599 Pa. 166, 961 A.2d 57, 64 (2008).
Accordingly, for the reasons stated above, we hold that because the record in this case establishes that the crimes of attempted escape and conspiracy to commit escape were not designed to culminate in the same crime, the separate sentences are permitted in accord with Section 906. Therefore, the trial court did not violate Section 906 when it sentenced Appellant for both attempted escape and conspiracy to commit escape. We affirm the order of the Superior Court, and remand this case to the trial court for sentence reformation unrelated to the issue disposed of herein.
Justices TODD and McCAFFERY join the opinion.
Justice SAYLOR files a concurring opinion in which Chief Justice CASTILLE joins.
Justice EAKIN files a dissenting opinion.
Justice SAYLOR, concurring.
The lead Justices address this appeal based on what they regard as “clear evidence of the jury‘s intent.” Opinion Announcing the Judgment of the Court, op. at 680, 39 A.3d at 987. For my own part, I am unable to glean such clear intent from a general verdict rendered on instructions permitting convictions based on divergent circumstances. If I were to guess, based on the record presented, I would surmise the jury grounded the attempt and conspiracy verdicts upon the conclusion that both crimes related to the planned escape of both Appellant and Seretich. Of course, for purposes of this appeal, we are foreclosed from doing so, since Appellant, for reasons of his own, has limited his argument to the position that the attempt conviction pertained to his escape alone. See id. at 670, 674-675, 39 A.3d at 981, 983-84. This idiosyncratic aspect of the case alone seems to me to militate against issuance of an opinion by this Court which may be read as having more general application.
The matter also seems problematic in that, at least according to the lead opinion, the trial court authorized the jury to return a guilty verdict based on a theory which there was insufficient evidence to support. See id. at 677, 39 A.3d at 985. In this and other respects, I find that the decision to accord Supreme Court error review here may yield more trouble than it is worth. If the determination of whether and what offenses should be preserved in light of Section 906‘s proscription against multiple convictions for inchoate crimes is truly one connected with the sentencing stage (as we are presuming under the lead Justices’ approach, see id. at 672-673, 39 A.3d at 982-83), I see little reason why the trial judge should not make it at sentencing upon his own view of the
Finally, at least in the post-Apprendi landscape, and in matters which are governed by the decision, serious arguments are being made to the effect that the courts ought to reconsider the policy against special jury findings. See, e.g., Meghan A. Ferguson, Balancing Lenity, Rationality, and Finality: A Case for Special Verdict Forms in Cases Involving Overlapping Federal Criminal Offenses, 59 DUKE L.J. 1195, 1208 n. 85 (2010) (collecting decisions reflecting the use of special verdict forms in the wake of Apprendi). Therefore, I would refrain from continuing to suggest an inflexible position on the subject. See Opinion Announcing the Judgment of the Court, op. at 679-680, 39 A.3d at 986-87.
I support the result obtained under the lead opinion on the basis of the waiver ensuing from Appellant‘s peculiar framing of his argument.
Chief Justice CASTILLE joins this concurring opinion.
I respectfully dissent. As Justice Saylor aptly points out, this was “a general verdict rendered on instructions permitting convictions based on divergent circumstances” which makes the jury‘s intent much less clear than the majority suggests. Concurring Op., at 682-683, 39 A.3d at 987-88 (Saylor, J., concurring).
The charges in the informations here were two: (1) criminal attempt by appellant to escape; and (2) conspiracy between appellant and Seretich that they or one of them would escape. Appellant cannot be sentenced on both counts unless the object crimes of the attempt and the conspiracy were different. That is, if the conspiracy encompassed appellant‘s escape, he cannot be sentenced separately for attempting that same escape; conversely, if the conspiracy encompassed only the escape of Seretich, a separate sentence for the attempt count, dealing with his own escape, is permissible.
The conspiracy allegation does not differentiate as to whether the conspiracy was for appellant, Seretich, or both to escape. Such a count may certainly be framed broadly, and a finding of any of three objects (appellant‘s escape, Seretich‘s escape, or the escape of both) would justify conviction of conspiracy. However, if it is framed so broadly, the jury verdict is necessarily as broad and sweeping-one cannot but guess which object of the conspiracy was accepted by the jury. Indeed, it may have found all three objects to be within general conspiracy, or just one-no one can tell. One thing for certain is that the jury did convict for a conspiracy that excluded appellant‘s escape. If the jury was allowed to convict appellant of conspiracy to accomplish his own escape-and clearly it was-then the attempt and the conspiracy have the same object crime, the escape of appellant. As such, § 906 precludes sentencing for more than one inchoate crime in that circumstance.
My colleagues accept the argument that despite the charging document, the theory was never that appellant conspired to escape alone-that may be true, but the information and the court‘s instructions allowed a conviction for just that.
Here, the conspiracy was charged broadly, and it allowed the jury to convict for an agreement that appellant would escape. To say the jury did not do so is to guess and speculate, which we may not do. The prosecution could have charged appellant with attempt for his escape and conspiracy for Seretich‘s escape. It did not. Accordingly, appellant‘s separate sentences are prohibited by