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Commnowealth v. Fisher

Supreme Court of Pennsylvania

October 30, 2013

COMMONWEALTH of Pennsylvania, Appellant,
v.
Nashir FISHER, Appellee. Commonwealth of Pennsylvania, Appellant,
v.
Kinta Stanton, Appellee. Commonwealth of Pennsylvania, Appellant,
v.
Ameer Best, Appellee.

Argued March 5, 2013.

Appeal from the Judgment of Superior Court entered on 2/2/2011 at No. 3583 EDA 2009, vacating and affirming the Judgment of Sentence entered on 10/29/2009 in the Court of Common Pleas, Philadelphia County, Criminal Division at No. CP-51-CR-0007251-2008. Trial Court Judge: Jeffrey P. Minehart, Judge. Intermediate Court Judges: John T. Bender, Judge, Judith F. Olson, Judge, Paula Francisco Ott, Judge.

Appeal from the Judgment of Superior Court entered on 2/2/2011 at No. 3497 EDA 2009 vacating and affirming the Judgment of Sentence entered on 10/29/2009 in the Court of Common Pleas, Criminal Division, Philadelphia County at No. CP-51-CR-0007248-2008. Trial Court Judge: Jeffrey P. Minehart, Judge. Intermediate Court Judges: John T. Bender, Judge, Judith F. Olson, Judge, Paula Francisco Ott, Judge.

Appeal from the Judgment of Superior Court entered on 2/2/2011 at No. 3273 EDA 2009 vacating and affirming the Judgment of Sentence entered on 10/29/2009 in the Court of Common Pleas, Criminal Division, Philadelphia County at No. CP-51-CR-0007253-2008. Trial Court Judge: Jeffrey P. Minehart, Judge. Intermediate Court Judges: John T. Bender, Judge, Judith F. Olson, Judge, Paula Francisco Ott, Judge.

Hugh J. Burns Jr., Esq., Philadelphia, Peter Carr, Esq., Ronald Eisenberg, Esq., Philadelphia District Attorney's Office, Joseph E. McGettigan III, Esq., Rufus Seth Williams, Esq., Office of the District Attorney of Philadelphia County, for Commonwealth of Pennsylvania.

Lee Mandel, Esq., Lee Mandel, P.C., for Nashir Fisher.

J. Michael Farrell, Esq., for Kinta Stanton.

Page 1187

Richard T. Brown Jr., Esq., Philadelphia, for Ameer Best.

CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, ORIE MELVIN, JJ.

OPINION

EAKIN, Justice.

In this appeal, we are asked to determine whether conspiracy to commit third degree murder is a cognizable offense under Pennsylvania law. Because we hold conspiracy to commit third degree murder is a cognizable offense, we reverse the order of the Superior Court and remand for reinstatement of the sentences.

Appellees Fisher, Stanton, and Best were teenagers at the time of the offense. They traveled to downtown Philadelphia with two other male cohorts to get one young man's cell phone fixed. When that plan fell through, the group decided to " jump" the next person they saw, so their trip downtown would not have been " for nothing." Trial Court Opinion (Best), 2/2/10, at 2. The young men saw the 36-year-old victim walking alone in a subway concourse and decided to attack him. At the goading of his four friends, one of the young men struck the victim from behind. The others promptly joined the attack; they punched, kicked, and stomped on the victim's head and chest. Two Southeastern Pennsylvania Transportation Authority (SEPTA) police officers heard the commotion and responded. One officer heard Best say, " You bitch," and saw him punch the victim in the head. Id. The other officer heard laughter from the group as they engaged in the attack. The group scattered when the officers approached. One officer tried to help the victim, who was holding onto a railing and gasping for air. The victim lost consciousness and was taken to the hospital, where an examination revealed he suffered numerous contusions, abrasions, blunt force trauma, and fractured ribs. As a result of the beating, the victim suffered a fatal asthma attack.

Appellees and their two cohorts were apprehended and charged with involuntary manslaughter, third degree murder, and conspiracy to commit third degree murder. During individual police interviews, appellees admitted to participating in the attack. They were tried as adults in a joint jury trial, at which the Commonwealth introduced their police statements, the two SEPTA officers' testimony, and the testimony of one group member who pled guilty. [1] The jury convicted Fisher and Best of third degree murder and conspiracy to commit third degree murder, and convicted Stanton of involuntary manslaughter and conspiracy to commit third degree murder. Fisher and Best were each sentenced to 12 1/2 to 25 years imprisonment for third degree murder, with a concurrent term of ten to 20 years imprisonment for conspiracy to commit third degree murder. Stanton received a sentence of 12 1/2 to 25 years imprisonment for conspiracy to commit third degree murder, with a concurrent term of two and one-half to five years imprisonment for involuntary manslaughter.

Appellees filed individual appeals with the Superior Court. In a trio of memorandum decisions, the court affirmed the third degree murder and involuntary manslaughter convictions, but vacated the conspiracy to commit third degree murder conviction, concluding this offense was a legal nullity. See Commonwealth v. Fisher, No. 3583 EDA 2009, unpublished memorandum at 6, 24 A.3d 443 (Pa.Super. filed February 2, 2011); Commonwealth v. Stanton, No. 3497 EDA 2009, unpublished memorandum at 9, 24 A.3d 443 (Pa.Super. filed February 2, 2011);

Page 1188

Commonwealth v. Best, No. 3273 EDA 2009, unpublished memorandum at 7, 24 A.3d 443 (Pa.Super. filed February 2, 2011). The court based its holdings on this Court's interpretation of Commonwealth v. Clinger, 833 A.2d 792 (Pa.Super.2003), contained in a parenthetical in Commonwealth v. Weimer, 602 Pa. 33, 977 A.2d 1103, 1105 (2009).

Weimer involved the same issue as the present case: whether conspiracy to commit third degree murder is a cognizable offense. However, this Court did not reach the issue because the defendant was charged with and convicted of conspiracy to commit homicide generally; there was no gradation of homicide, as in the instant case. Accordingly, we concluded the conspiracy to commit homicide conviction was valid. We further noted the Superior Court dealt with various cases involving conspiracy and third degree murder, most of which held conspiracy to commit third degree murder was a cognizable offense. See id. (collecting cases). However, we also cited the Superior Court's decision in Clinger as a contrary holding, noting it stood for the proposition that " because it is impossible for one to intend to commit an unintentional act, it is impossible to commit [the] crime of conspiracy to commit third degree murder." Id. (citing Clinger, at 795-96).[2]

In the instant matter, the Superior Court concluded, " In light of our Supreme Court's reading of Clinger, we are compelled to conclude that the offense of conspiracy to commit third-degree murder is a legal nullity." Fisher, at 6 (footnote omitted); Stanton, at 9; Best, at 6-7. Accordingly, the court vacated appellees' convictions for conspiracy to commit third degree murder. In Fisher and Best's cases, the court held remand for resentencing was unnecessary because their conspiracy sentences ran concurrently with their third degree murder sentences, which were longer; therefore, the length of the aggregate sentences was unaffected. In Stanton's case, the court concluded remand for resentencing was necessary because Stanton's aggregate sentence was significantly reduced by vacation of the conspiracy conviction from 12 1/2 to 25 years to two and one-half to five years.

Judge Olson filed identical dissenting memoranda in all three cases, opining since neither Clinger nor Weimer directly addressed whether conspiracy to commit third degree murder is a cognizable offense, any reference those cases made regarding the issue was dicta. The dissent noted Commonwealth v. Johnson, 719 A.2d 778 (Pa.Super.1998) ( en banc ), " expressly held that a defendant can be charged with conspiracy to commit third-degree murder, reasoning that if murder is the natural and probable consequence of actions of a conspiracy done with malice, murder is not beyond the conspiracy." Fisher, at 1-2 (Olson, J., dissenting); Stanton, at 1-2 (Olson, J., dissenting); Best, at 1-2 (Olson, J., dissenting). Accordingly, the dissent would have held Johnson controlled, and would have affirmed appellees' convictions for conspiracy to commit third degree murder.

The Commonwealth appealed, and we consolidated the cases for argument on the following issues:

1. Is conspiracy to commit third[ ]degree murder a cognizable offense under Pennsylvania law?

Page 1189

2. In the alternative, if conspiracy to commit third[ ]degree murder is not a cognizable offense under Pennsylvania's law, did the Superior Court contradict this Court's precedent by failing to modify the judgment to a cognizable offense, i.e., conspiracy to commit aggravated assault?

Commonwealth v. Fisher, 614 Pa. 456, 38 A.3d 767 (2012) ( per curiam ). As these are questions of law, our scope of review is plenary, and our standard of review is de novo. Commonwealth v. Crawley, 592 Pa. 222, 924 A.2d 612, 614 (2007) (citation omitted).

The Commonwealth claims the Superior Court essentially adopted the Weimer dissent's view, which noted " a key element of third[ ]degree murder is the absence of a specific intent to kill." Weimer, at 1111 (Todd, J., dissenting). According to the dissent, because " the essence of third[ ]degree murder is a homicide that occurs in the absence of a specific intent to kill [,] ... to be guilty of conspiracy to commit third[ ]degree murder, an individual would have to intend to commit an unintentional killing, a logical impossibility." Id., at 1112. The Commonwealth contends this logic misses the mark because lack of specific intent is not an element of third degree murder; the offense requires malice, which means the defendant recklessly, knowingly, or intentionally caused the victim's death. See Commonwealth's Brief, at 9-10 (citing 18 Pa.C.S. § 2502(c) (homicide statute does not specify requisite mental state for third degree murder); id., § 302(c) (where statute does not prescribe culpability sufficient to establish material element of offense, such element is established if defendant acted intentionally, knowingly, or recklessly)). Therefore, the Commonwealth argues, as long as a defendant intended to facilitate a crime involving reckless or knowing behavior, he can be convicted of conspiracy to commit third degree murder.

The Commonwealth further posits where, as here, the evidence shows appellees possessed the highest mental state mentioned in § 302(c)— intentional conduct— when they agreed to attack the victim, the third degree murder conviction merely represents an act of mercy by the fact-finder, as the evidence was sufficient to support a first degree murder conviction. Therefore, a conviction for conspiracy to commit third degree murder is appropriate, as specific intent was shown. The Commonwealth criticizes the Weimer dissent's reliance on the American Law Institute's commentary to the Model Penal Code for the view that there cannot be a conspiracy to commit a crime for which the minimum required mens rea is negligence or recklessness; the Commonwealth notes although § 903 of the Crimes Code is derived from the Model Penal Code, the General Assembly has never adopted the commentary thereon. See id., at 15 (citing Commonwealth v. Brown, 473 Pa. 458, 375 A.2d 331, 334 n. 4 (1977) (while comments to Model Penal Code may be helpful in interpreting statutes, they were not specifically adopted by legislature and therefore are not binding)).

In the alternative, the Commonwealth argues even if conspiracy to commit third degree murder is not a cognizable offense, the Superior Court erred in completely vacating the sentences for conspiracy to commit third degree murder; rather, the proper course would have been to modify the sentences to be for the lesser-included offense of conspiracy to commit aggravated assault. The Commonwealth contends this course is consistent with an appellate court's statutory authority to modify an appealable order, as well as with precedent holding when an error affects only a discrete element of an offense, the proper remedy is to modify the judgment to a lesser-included offense not containing that

Page 1190

element. See id., at 18-19 (citing 42 Pa.C.S. § 706; collecting cases).

Appellees' arguments mirror the rationale of the Weimer dissent: [3] because conspiracy is a specific intent crime, and a key element of third degree murder is the absence of specific intent, it is a logical impossibility to agree to commit an unintended killing. Appellees also rely on cases holding attempted third degree murder is not a cognizable offense, analogizing these decisions' reasoning that because attempt is a specific intent crime, one cannot attempt to do something unintentionally. See Fisher's Brief, at 11 (citing Commonwealth v. Williams, 730 A.2d 507, 511-12 (Pa.Super.1999); Commonwealth v. Griffin, 310 Pa.Super. 39, 456 A.2d 171, 177 (1983)).

Appellees further argue the Superior Court properly vacated their sentences for conspiracy to commit third degree murder. Appellees contend modifying their sentences to ones for conspiracy to commit aggravated assault would require the court to guess at what the jury believed; as the jury charge fused the elements of aggravated assault and third degree murder,[4] it is impossible to tell what the jury found concerning aggravated assault.

In determining whether conspiracy to commit third degree murder is a cognizable offense, we look first to the pertinent statutes. The Crimes Code defines conspiracy 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
(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.
* * *
(e) Overt act.— No person may be convicted of conspiracy to commit a crime unless an overt act in pursuance 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), (e). Thus, " [t]o sustain a conviction for criminal conspiracy, the Commonwealth must establish that the defendant (1) entered into an agreement to commit or aid in an unlawful act with another person or persons, (2) with a shared criminal intent and, (3) an overt act was done in furtherance of the conspiracy."

Page 1191

Commonwealth v. Rios, 546 Pa. 271, 684 A.2d 1025, 1030 (1996) (citations omitted).

Section 2502 of the Crimes Code defines the three degrees of murder. This section sets forth the mens rea for first degree murder, see 18 Pa.C.S. § 2502(a) (an intentional killing), and defines second degree murder as that occurring during the perpetration of a felony. See id., § 2502(b). Regarding third degree murder, however, the statute simply states, " All other kinds of murder shall be murder of the third degree." Id., § 2502(c). Importantly, § 2502(c) does not set forth the requisite mens rea for third degree murder; however, § 302(c) of the Crimes Code provides, " When the culpability sufficient to establish a material element of an offense is not prescribed by law, such element is established if a person acts intentionally, knowingly or recklessly with respect thereto." Id., § 302(c) (emphasis added).

Case law has further defined the elements of third degree murder, holding:

[T]o convict a defendant of the offense of third[ ]degree murder, the Commonwealth need only prove that the defendant killed another person with malice aforethought. This Court has long held that malice comprehends not only a particular ill-will, but ... [also a] wickedness of disposition, hardness of heart, recklessness of consequences, and a mind regardless of social duty, although a particular person may not be intended to be injured.

Commonwealth v. Santos, 583 Pa. 96, 876 A.2d 360, 363 (2005) (alteration in original) (internal citation, quotation, and emphasis omitted); see also Commonwealth v. Drum, 58 Pa. 9, 15 (1868) (defining malice as quoted above). This Court has further noted:

[T]hird degree murder is not a homicide that the Commonwealth must prove was committed with malice and without a specific intent to kill. Instead, it is a homicide that the Commonwealth must prove was committed with malice, but one with respect to which the Commonwealth need not prove, nor even address, the presence or absence of a specific intent to kill. Indeed, to convict a defendant for third degree murder, the jury need not consider whether the defendant had a specific intent to kill, nor make any finding with respect thereto.

Commonwealth v. Meadows, 567 Pa. 344, 787 A.2d 312, 317 (2001) (quoting Commonwealth v. Young, 561 Pa. 34, ...


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