COMMONWEALTH of Pennsylvania, Appellee v. Crystal Dawn WEIMER, Appellant.
No. 594 Pa. 32
Supreme Court of Pennsylvania.
Submitted March 6, 2008. Decided Aug. 17, 2009.
977 A.2d 1103
Accordingly, I respectfully caution against ruling upon this issue until it is raised, briefed, and argued by the parties in the appropriate case. See Commonwealth v. Dickson, 591 Pa. 364, 918 A.2d 95, 108 n. 15 (2007) (holding that “[w]e find it ill-advised, generally, to consider substantial questions not squarely presented and fully argued by the parties below and before this Court.“). Absent a “real world” premise, we cannot begin to anticipate and analyze the peculiar positions advanced by thoughtful parties. Thus, it is inappropriate for this Court to hold that a PCRA petitioner per se forfeits his entire collateral review when a trial court exercises its discretion, for what one may presuppose is an appropriate reason, to dispose of a certain claim(s) of ineffectiveness on direct appeal, while leaving other collateral issues for the more typical post-judgment scrutiny anticipated by Grant. This is an especially important observation when one considers the already significantly limited nature of collateral review, via the one-year jurisdictional time restriction.
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
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.
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
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.
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
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.
Justice GREENSPAN, concurring.
I agree with the majority that “the issue for which we granted allowance of appeal ... is not made out by these facts.” Majority Op. at 37, 977 A.2d at 1105. For that reason, it may be we should dismiss this case as improvidently granted. Nevertheless, I agree with the majority that Appellant‘s judgment of sentence must be affirmed because there is ample evidence of record to support the verdicts rendered, namely, third-degree murder and conspiracy to commit homicide.
I view this case as posing not so much an inquiry into the legality of a conviction for conspiracy to commit third-degree
Despite this fact, the manner in which a criminal defendant is charged in a murder/conspiracy case, and the manner in which a trial court instructs the jury on those charges, indeed can affect the sentence ultimately imposed. This case does not raise the question of whether the trial court‘s instructions to the jury were proper or whether Appellant‘s sentence was appropriate.1 Nonetheless, it is important to ensure that a jury is instructed in accordance with the charges that have been brought and the evidence that has been presented. In that way, a proper verdict is rendered and the proper sentencing range prescribed.
There is more to be said on this issue. As Justice Eakin observes, the Superior Court‘s jurisprudence is replete with cases that involve both conspiracy and third degree murder. I would encourage the Standard Jury Instruction Advisory Committee to consider amending its suggested conspiracy instruction to reflect the need for specificity when a defendant is charged with conspiracy in a case involving homicide.
Finally, I note that despite the seriousness of the charges and the complexity of the issues raised, the Commonwealth declined to file a brief in this case. This lack of advocacy on the Commonwealth‘s part complicates our review, particularly as it pertains to what charges were actually brought, withdrawn, and pursued. The Commonwealth‘s decision to forego
Chief Justice CASTILLE joins this concurring opinion.
Justice TODD, dissenting.
As I believe that the record supports Appellant‘s assertion that she was convicted of the specific offense of conspiracy to commit third-degree murder, which I conclude is a non-cognizable offense, I would hold that the trial court‘s sentence is illegal and must be vacated. For this reason, I respectfully dissent.
As the Majority recognizes, there were two jury verdict sheets in the instant case. One verdict sheet identified the charge as “Criminal Homicide,” and provided the option of finding Appellant guilty of first-degree murder, third-degree murder, voluntary manslaughter, or not guilty. The jury marked the space for third-degree murder. The second jury verdict sheet identified the charge as “Criminal Conspiracy—Criminal Homicide,” but provided no separate options. On this verdict sheet, the jury foreman simply wrote “Guilty.” Thus, it is unclear from the jury‘s verdict sheets what type of criminal homicide formed the predicate offense for Appellant‘s conspiracy conviction.
A number of additional factors, however, indicate that Appellant was convicted of the specific offense of criminal conspiracy to commit third-degree murder. A reading of the trial court‘s jury instructions, for example, reveals that the jury repeatedly was instructed that it could convict Appellant of conspiracy to commit third-degree murder.1,2 Furthermore,
the trial court expressly stated that it was sentencing Appellant for the specific offense of conspiracy to commit third-degree murder:
At Number 1496 of 2004 the OTN Number is H-966964-5. It‘s a felony of the first degree and murder in the third degree. The maximum fine is $50,000.00. The maximum term of imprisonment is up to forty years. It‘s a level five offense. The prior record score is one. The offense gravity score is fourteen. We intend to impose a sentence that will fall in the standard range of the Sentencing guidelines.
...
AND NOW, April 19, 2006, the sentence of the Court is that the defendant, CRYSTAL DAWN WEIMER, ... undergo IMPRISONMENT in a State Correctional Institution for a period of not less than TWELVE AND ONE-HALF (12-1/2) years nor more than TWENTY-FIVE (25) years.
***
At Number 1496-1/4 of 2004 the OTN Number being H-966964-5, being criminal conspiracy to commit murder in the third degree having a maximum fine of $50,000.00. The maximum term of imprisonment is up to forty years. The Sentencing Guidelines remain the same.
AND NOW, April 19, 2006, the sentence of the Court is that the defendant, CRYSTAL DAWN WEIMER, undergo IMPRISONMENT at a State Correctional Institution for a period of not less than TWO AND ONE-HALF (2-1/2) years nor more than FIVE (5) years.
N.T. Sentencing Hearing, 4/19/2006, at 4 (emphasis added).
Additionally, the original record includes two separate sentencing orders by the trial judge dated April 19, 2006, one for “Criminal Homicide Murder 3rd Degree (F-1),” and another for “Criminal Conspiracy Murder 3rd Degree (F-1).” There are also two separate amended sentencing orders, dated April 25, 2006, and the one pertaining to Appellant‘s conspiracy conviction and sentence identified the charge as “Criminal Conspiracy Murder 3rd Degree (F-1).”3 Finally, in its 1925(a) opinion, the trial court specifically stated that Appellant was sentenced to 2½ to 5 years “on the conviction of criminal conspiracy to commit third degree murder.” Trial Court Opinion, 8/1/06, at 1.
Notwithstanding the above, the Majority concludes “Appellant‘s claim is rooted in sufficiency” and states:
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.... 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.... 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.
Majority Op. at 38, 977 A.2d at 1105. The Majority then concludes the evidence was sufficient to support Appellant‘s conviction for conspiracy to commit criminal homicide.
While I acknowledge, as the Majority concludes, that a jury may convict a defendant of third-degree murder and conspiracy to commit first-degree murder, I cannot agree that is what occurred in the instant case.4 Rather, I find the record strongly indicates that Appellant was convicted of and sentenced on the specific offense of criminal conspiracy to commit third-degree murder.
Although, as the Majority states, “the crime ultimately accomplished does not retroactively limit the scope of the original conspiracy,” Majority Op. at 38, 977 A.2d at 1105, in sentencing a defendant on a conviction for conspiracy to commit criminal homicide, a court is required to determine the object crime underlying the conspiracy conviction,
The Pennsylvania Crimes Code defines the various degrees of murder as follows:
(a) Murder of the first degree.—A criminal homicide constitutes murder of the first degree when it is committed by an intentional killing.
(b) Murder of the second degree.—A criminal homicide constitutes murder of the second degree when it is commit-
(c) Murder of the third degree.—All other kinds of murder shall be murder of the third degree. Murder of the third degree is a felony of the first degree.
It is well established that malice is an essential element of all degrees of murder. Commonwealth v. Gribble, 550 Pa. 62, 77, 703 A.2d 426, 433-34 (1997), abrogated on other grounds, Commonwealth v. Burke, 566 Pa. 402, 781 A.2d 1136 (2001). In the legal sense, malice “exists not only where there is a particular ill will, but also whenever there is a wickedness of disposition, hardness of heart, wanton conduct, cruelty, recklessness of consequences and a mind regardless of social duty.” Commonwealth v. Young, 494 Pa. 224, 228, 431 A.2d 230, 232 (1981) (citations omitted). First-degree murder also requires the finding of a specific intent to kill, a requirement that distinguishes it from all other kinds of murder. Commonwealth v. Butcher, 451 Pa. 359, 364, 304 A.2d 150, 153 (1973); see also Commonwealth v. Anderson, 538 Pa. 574, 582, 650 A.2d 20, 24 (1994) (a necessary element of first-degree murder is the specific intent to kill).
Second-degree murder includes all of the elements of first-degree murder except the specific intent to kill, and occurs when a defendant is engaged as a principal or an accomplice in the perpetration of a felony. Commonwealth v. Malone, 354 Pa. 180, 47 A.2d 445 (1946);
Finally, “[m]urder of the third degree is a killing done with legal malice but without specific intent to kill. Murder of the
While third-degree murder may involve an intentional act committed with malice, a key element of third-degree murder is the absence of a specific intent to kill. It is the unintended death that results from a malicious intentional act that distinguishes third-degree murder from first-degree murder: if a defendant commits an intentional act with malice, with a specific intent to kill, any resulting death constitutes murder of the first-degree. Thus, an individual may be convicted of third-degree murder if he or she engaged in an intentional and malicious act, which resulted in an unintentional death.6
The crime of conspiracy is defined under the Crimes Code as follows:
(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
Pennsylvania‘s conspiracy statute is derived from Section 5.03 of the Model Penal Code.
Although this Court has not yet spoken to this specific issue, in my view, there is overwhelming support for the Superior Court‘s conclusion in Clinger. As previously noted, Pennsyl-
when recklessness or negligence suffices for the actor‘s culpability with respect to a result element of a substantive crime, as for example, homicide through negligence is made criminal, there could not be a conspiracy to commit that crime. This should be distinguished, however, from a crime defined in terms of conduct that creates a risk of harm, such as reckless driving or driving above a certain speed limit. In this situation the conduct rather than any result it may produce is the element of the crime, and it would suffice for guilt of conspiracy that the actor‘s purpose was to promote or facilitate such conduct—for example, if he urged the driver of the car to go faster and faster.
Model Penal Code § 5.03 cmt. 2(c)(i) at 408 (Official Draft and Revised Comments 1985).
In his treatise on criminal law, Wayne R. LaFave also opined that, because conspiracy is a specific intent crime, it is not possible to conspire to commit a crime that results from an unintended consequence:
the fact that conspiracy requires an intent to achieve a certain objective means that individuals who have together committed a certain crime have not necessarily participated in a conspiracy to commit that crime.... It follows, therefore, that there is no such thing as a conspiracy to commit a crime which is defined in terms of recklessly or negligently causing a result.
Wayne R. LaFave, Criminal Law, § 12.2(c), at 630 (4th ed.2003).
The high courts of a number of our sister states have adopted the reasoning of LaFave and the Model Penal Code and concluded that it is impossible to conspire to commit a crime that is defined by its unintended consequence. For example, in Palmer v. People, 964 P.2d 524 (Colo.1998), the Supreme Court of Colorado concluded that conspiracy to commit reckless manslaughter was not a cognizable crime. In
The culpable mental states for conspiracy and for reckless manslaughter are legally and logically inconsistent. The crime of conspiracy to commit reckless manslaughter would require that the defendant have the specific intent to commit reckless manslaughter. Crimes of recklessness are, by definition, crimes that are committed unintentionally, but with a conscious disregard for a substantial and unjustifiable risk that a result will occur. Thus, the state of mind required for reckless manslaughter is irreconcilable with the specific intent required for conspiracy.... Logic dictates that one cannot agree in advance to accomplish an unintended result.
Id. at 529. The court specifically rejected the state‘s argument that it need only establish that the defendant had the conscious objective to engage in conduct involving a substantial and unjustifiable risk, emphasizing that the conspiracy requires the specific intent to cause the result of the crime to which the conspirators agreed. Id. (italics added).
In State v. Donohue, 150 N.H. 180, 834 A.2d 253 (2003), the Supreme Court of New Hampshire reversed an appellant‘s conviction for conspiracy to commit reckless second-degree assault, first stating that in order to establish liability for conspiracy, “the State must demonstrate that the defendant had a true purpose to effect the criminal result.” Id. at 255. The court then noted that the Model Penal Code, from which New Hampshire‘s Criminal Code is largely derived, “explicitly recognizes that one cannot conspire to commit a crime where mere recklessness or negligence with respect to a result element suffices for the actor‘s culpability.” Id. at 256. Recognizing that numerous other state courts have subscribed to the position set forth in the Model Penal Code that one cannot conspire to achieve an unintended result, the Donohue court likewise expressly adopted the view that “one cannot
[a] person cannot be guilty of conspiracy to commit a reckless assault because an assault, like a reckless manslaughter, is controlled by the resulting harm.... In other words, a person cannot agree, in advance, to commit a reckless assault, because, by definition, a reckless assault only arises once a future harm results from reckless behavior.
Id. at 257.
In State v. Baca, 124 N.M. 333, 950 P.2d 776 (1997), the Supreme Court of New Mexico reversed an appellant‘s conviction for conspiracy to commit “depraved mind murder” because, under New Mexico law, the crime of conspiracy “requires both an intent to agree and an intent to commit the offense which is the object of the conspiracy.” Id. at 788. The court noted that depraved-mind murder, as defined at that time by statute and case law, “is an unintentional killing resulting from highly reckless behavior,” and, citing the Model Penal Code, concluded that it could not be the object of a conspiracy. Id.8
The Supreme Court of Connecticut also repeatedly has held that “persons cannot attempt or conspire to commit an offense that requires an unintended result.” State v. Foster, 202 Conn. 520, 522 A.2d 277, 281 (1987); see State v. Beccia, 199 Conn. 1, 505 A.2d 683, 684-85 (1986) (conspiracy to commit arson in third degree is not a cognizable offense because third-degree arson requires reckless mental state and conspirators cannot agree to accomplish a required specific result recklessly); State v. Almeda, 189 Conn. 303, 455 A.2d 1326, 1330-31 (1983) (attempted manslaughter is not a cognizable offense because it is not possible to have specific intent to commit unintentional killing).
A number of intermediate appellate courts have reached similar conclusions. Cf., e.g., Evanchyk v. Stewart, 340 F.3d
As previously noted, Section 903 of our Crimes Code is derived from the Model Penal Code, which contemplates that one cannot conspire to commit a crime for which the actor‘s culpability is dependent on an unintended result. The statutory definitions and case law regarding the offense of conspiracy and the offense of third-degree murder in Pennsylvania are, on their face and in their application, logically inconsistent and irreconcilable. Thus, as did the courts of our sister states in the decisions identified above, I would hold that conspiracy to commit third-degree murder is not a cognizable offense under Pennsylvania law.
Because, in my view, the record supports the conclusion that Appellant was convicted and sentenced for the specific crime of conspiracy to commit third-degree murder, a non-cognizable offense, I would find that the sentencing court did not have the authority to impose the subject sentence, and that the sentence is, therefore, illegal. Accordingly, I would vacate Appellant‘s judgment of sentence, and remand the case for resentencing.
Justice SAYLOR joins this dissenting opinion.
Notes
When two or more people are charged with the crime of first degree murder and one or more of the accused did not actually commit the murder, that is, strike or inflict the fatal blow, the person who did not
N.T. Trial, 4/7/06, at 10-12 (emphasis added).
(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.