Appeal from the Order of the Superior Court entered April 3, 2007 at No. 926 WDA 2006, affirming the Judgment of Sentence of the Court of Common Pleas of Fayette County entered April 19, 2006 at No. CP-26-CR-0001496-2004.
The opinion of the court was delivered by: Mr. Justice Eakin
CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, GREENSPAN, JJ.
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-1)," and "Criminal Conspiracy Murder 3rd Degree (F-1)." 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-1)." 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, 934 A.2d 1148 (Pa. 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, 911 A.2d 1258, 1261 (Pa. 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.*fn1
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, 640 A.2d 1336, 1345 (Pa. Super. 1994) (if killing is natural and probable consequence of co-conspirator's conduct, murder is not beyond scope of conspiracy); Commonwealth v. Bigelow, 611 A.2d 301, 304 (Pa. Super. 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, 444 A.2d 1176, 1178 (Pa. Super. 1982) (defendant's conduct revealed conscious disregard of great risk of inflicting death or serious bodily harm upon victim - manifested malice constituted criminal conspiracy ...