Opinion
No. 2045 EDA 2004.
Filed: September 27, 2005.
Appeal from the Judgment of Sentence July 15, 2004, In the Court of Common Pleas of Philadelphia County Criminal Division at No. 0303-0076.
Before: DELSOLE, P.J., BENDER and OLSZEWSKI, JJ.
¶ 1 This is an appeal from a judgment of sentence imposed upon Appellant after he was convicted, in a jury trial, of one count of conspiracy to commit murder. Appellant raises three issues for our consideration, whether Appellant is entitled to an arrest of judgment as the evidence was insufficient to establish a conspiracy; whether Appellant is entitled to a new trial due to the trial court's allowing the introduction of inadmissible hearsay and whether Appellant is entitled to a remand for resentencing since the sentence imposed was excessive and not reflective of the character, history and condition of Appellant. We vacate and remand for a new trial.
The issues listed above are those raised and briefed by counsel. Appellant also filed a pro se supplemental brief. Pursuant to Commonwealth v. Ellis, 626 A.2d 1137 (1993), we shall not address issues raised pro se when the appellant is represented by counsel and counsel has filed a brief with this Court.
¶ 2 On October 24, 2002, Philadelphia Police Officer Joseph Mears responded to a report of gunshots fired at an abandoned house located at 34 North 54th Street in Philadelphia. Upon arriving at the scene and entering the house, Officer Mears discovered a black male lying on the floor of a second floor bedroom curled up in a fetal position. The man, later identified as William "Will" Logan, had sustained several gunshot wounds and was pronounced dead at the scene. A search of the area of the shooting yielded 10 shell casings and some bottles. Sometime later, fingerprinting tests matched a print found on one of the bottles to Appellant's fingerprint.
¶ 3 On December 5, 2002, a warrant was issued for Appellant's arrest and Appellant was taken into custody on January 6, 2003. Appellant was charged with, inter alia, murder and criminal conspiracy to commit murder. Appellant proceeded to a jury trial on June 2, 2004. At trial, the Commonwealth presented the testimony of Steven Jackson, the victim's brother. Jackson indicated that he last saw his brother alive on the day of his murder at approximately 9:15 p.m. at a store located on the corner of 22nd and Norris Streets in Philadelphia. At that time, a white car containing three occupants pulled up and Jackson observed his brother get in the car after which the car drove away. Jackson testified that the three occupants were Appellant, who was driving, Keith Moore, who was in the passenger seat, and Anthony Oglesby, situated in the back seat.
¶ 4 The Commonwealth also presented the testimony of Anthony Oglesby. Oglesby testified that on the night in question he was picked up by Appellant and Moore at the corner of Croskey and Norris Streets. After Oglesby had entered the car, he was told that the men were heading to "West Philly" to get some guns. After Appellant picked up Oglesby, the three men went looking for and found the victim. Moore told the victim to "take a ride" with them and the victim complied and entered the car. Appellant then drove to 54th and Market Streets and parked the car. After parking the car, Appellant and Moore entered the house located at 34 North 54th Street while Oglesby and the victim went to a nearby store to purchase some beverages. After buying four bottles of beverages, the two men approached the house where Appellant and Moore had entered and observed Moore leaving the house. Moore told the two men that he was "going to see a girl."
¶ 5 Oglesby and the victim then approached the house where Appellant opened the door for them. The three men then went upstairs to a bedroom located near the rear of the house. Once there, Appellant and Oglesby began smoking marijuana and chatting. After several minutes passed, Appellant pulled out a handgun prompting the victim to tell Appellant to put the gun away. Appellant said "yeah, I am," and then made a motion as if to put the gun away but then suddenly pointed the gun at the victim and shot. The victim reacted as if he had been shot; making a noise and bending over while holding his stomach. Upon seeing the victim get shot, Oglesby ran down the stairs and out of the house, eventually catching a bus back to his own neighborhood. As he ran down the stairs Oglesby heard several more gunshots ring out.
¶ 6 Oglesby also testified that he witnessed an incident approximately two weeks before the victim was murdered wherein Appellant was involved in a fight with another man and then came under gunfire and ultimately suffered a gunshot wound himself. Oglesby testified that during this incident, Appellant asked the victim for his gun but that the victim did not give Appellant his gun. Oglesby also testified that a few days after this incident, Appellant and he were discussing the incident and Appellant stated that he was going to kill the victim. N.T. Trial, 6/02/04, at 133.
¶ 7 Lastly, the Commonwealth introduced a pre-trial statement of Jameel Green. Green's statement, made prior to trial during questioning, indicated that Moore and Green had a discussion about the incident in which Appellant was shot and the victim was present but did not assist Appellant. During this conversation, Moore indicated to Green that Moore and the victim had an argument over this incident. Green further indicated that Moore also asked the victim if he could "hold his gun," and that the victim also refused to give his gun to Moore. Finally, Green indicated that Moore stated to him, "I swear to God, Meel, MF-ers are going to start disappearing." Id. at 201.
¶ 8 On June 4, 2004, after hearing the above, and other, evidence, the jury returned a verdict of guilty of criminal conspiracy to commit murder but not guilty of murder in the first or third degrees. On July 15, 2004, Appellant was sentenced to a period of twenty to forty years of incarceration. On July 20, 2004, Appellant filed a notice of appeal to this Court.
¶ 9 Appellant first contends that the evidence was insufficient to sustain a conviction for criminal conspiracy to commit murder. We disagree. In Commonwealth v. DeJesus, 787 A.2d 394, 398 (Pa. 2001), our Supreme Court recited the relevant standard of review of a challenge to the sufficiency of the evidence:
The standard for reviewing the sufficiency of the evidence is whether the evidence admitted at trial and all reasonable inferences drawn therefrom, when viewed in the light most favorable to the Commonwealth as the verdict winner, is sufficient to support all the elements of the offenses beyond a reasonable doubt.
Moreover, the Commonwealth may sustain its burden of proving every element of the crime beyond a reasonable doubt by means of wholly circumstantial evidence. Commonwealth v. Griscavage, 512 Pa. 540, 543, 517 A.2d 1256, 1257 (1986). Lastly, and of considerable significance given our resolution of Appellant's second issue, we must review the sufficiency of the evidence based upon all evidence admitted, even improperly admitted evidence. Commonwealth v. Sanford, 863 A.2d 428 (Pa. 2004).
¶ 10 Somewhat inexplicably, given the evidence produced at trial, the jury acquitted Appellant of murder but found him guilty of criminal conspiracy to commit murder. Criminal conspiracy is defined 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.18 Pa.C.S. § 903(a).
¶ 11 We have stated that "[a]n individual is guilty of conspiracy if, with the intent to promote or facilitate a crime, he or she agreed to aid another person in the attempt, solicitation, planning, or commission of the crime." Commonwealth v. Neckerauer, 617 A.2d 1281, 1288 (Pa.Super. 1992) (en banc). "The essence of a criminal conspiracy is a common understanding, no matter how it came into being, that a particular criminal objective be accomplished." Commonwealth v. Keefer, 487 A.2d 915, 918 (Pa.Super. 1985). "Therefore, a conviction for conspiracy requires proof of the existence of a shared criminal intent." Commonwealth v. Sattazahn, 631 A.2d 597, 602 (Pa.Super. 1993).
¶ 12 In the present case, the Commonwealth's theory of the case provided that Appellant and Keith Moore conspired to take the victim to an abandoned house so that the victim could be executed. Although there was no direct evidence that the two men conspired to kill the victim, there is considerable circumstantial evidence tending to prove this fact.
¶ 13 Initially, we acknowledge that the direct evidence establishes that Appellant shot the victim and that the shooting was essentially unprovoked. The evidence of record indicates that Appellant and Moore picked up the victim's friend, Anthony Oglesby, on a street corner and then proceeded to pick up the victim. Appellant and Moore told both Oglesby and the victim that they were going to pick up a gun. They then drove to an abandoned house where, it appears, no transaction took place and where the victim was shot for no apparent reason. As such, the evidence certainly supports the premise that the victim was taken, as part of a preconceived plan, to an abandoned house for the purpose of executing him. The question that remains is whether Appellant acted on his own accord or whether he conspired with another, namely Moore, to murder the victim.
¶ 14 Since Moore and Appellant were both in the vehicle prior to picking up Oglesby and the victim, it is quite conceivable that the two men were acting in concert. Of course, it is also quite plausible that the decision to shoot the victim was that of Appellant's alone. However, additional evidence supporting the idea of a conspiracy came in the form of the motive testimony provided by Jameel Green. As capsulized above, Green testified that a few weeks previous to the victim's murder, the victim failed to assist Appellant by passing him a gun while Appellant was being shot at by another man. Green further indicated that not only was Appellant upset with the victim over this incident, but that Moore also became upset with the victim over the victim's refusal to give the gun to Appellant. Then, according to Green's statement, Moore became further upset with the victim when Moore asked the victim for his gun and the victim also refused to give his gun to Moore. Green further testified that Appellant and Moore were close. Lastly, Green indicated that Moore stated that people "are going to start disappearing." Of course, these words indicate a threat that certain individuals would be killed.
¶ 15 In our opinion, the evidence that both Appellant and Moore were upset with the victim and that Moore had indicated that people "are going to start disappearing" along with the circumstances of the murder, namely that Appellant and Moore were together when they summoned first, Oglesby, and then the victim, allow the inference that Moore and Appellant worked in concert to drive the victim to the abandoned house for the purpose of murdering him. Thus, contrary to Appellant's assertion, we find the evidence sufficient to support the verdict.
¶ 16 Appellant next contends that he is entitled to a new trial as the result of the trial court's ruling allowing the introduction of hearsay testimony. We agree with this contention.
¶ 17 Hearsay is defined in the Pennsylvania Rules of Evidence as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Pa.R.E. 801(c). "Hearsay testimony is per se inadmissible in this Commonwealth, except as provided in the Pennsylvania Rules of Evidence by other rules prescribed by the Pennsylvania Supreme Court, or by statute." Commonwealth v. Cunningham, 805 A.2d 566, 572 (Pa.Super. 2002).
¶ 18 To address this issue, it is essential that we examine more closely the reading during trial of Jameel Green's pre-trial statement. During the questioning of Jameel Green, Green was asked if Moore had harsh feelings toward the victim. Green responded by stating that Moore never said that he had harsh feelings toward the victim. This testimony contradicted a statement that he had given to police previously. In light of the inconsistent position, the prosecutor, over objection and after a sidebar conference, then began using the statement to essentially impeach the witness and question him as if on cross-examination. This process led to the verbatim reading of Green's prior statement into evidence. Two passages in particular are relevant to the present challenge. The first passage reads:
Q. Did Will have any problems with Daray Harvey, also known as Ray-Ray?
A. Well, Dion [Moore] told me that he and Will had an argument because about two weeks before Will got killed, Ray-Ray had got shot at Croskey and Norris Street. Dion told me that he argued with Will because Will had a burner, a gun, and didn't pass it off to Ray-Ray when he was getting shot at.
N.T. Trial, 6/02/04, at 195. The second passage reads:
Q. Tell me everything Dion told you about the argument?
A. Dion said he asked Will why he didn't pass the burner when they were shooting at Ray-Ray. Dion said that Will said he didn't have nothing to do with that. Then Dion asked Will if he could hold Will's gun. Will said no. They started-I'm sorry. Then they started arguing about Will not letting Dion hold his gun.
Just so that it is clear who the "he" was that Green referred to in the above two statements, on cross-examination, Green clarified that the person having the argument with the victim was Moore. N.T. Trial, 6/02/04, at 200.
¶ 19 A review of the statements attributed to Moore indicates that they are indeed hearsay. That is, for the statements to have any relevance to the case, they must be accepted for the truth of the matter set forth in the statements. In the first statement Green indicates that Moore told him that Moore had had an argument with the victim. The fact of relevance with respect to Moore is that Moore and the victim had an argument, and the fact that Moore and the victim had an argument is derived strictly by crediting as truthful the out-of-court statement attributed to Moore. Undoubtedly, from the fact that the two had argued, the Commonwealth hoped to create an inference that Moore had motive to kill the victim and, thus, Moore and Appellant conspired to kill the victim. Apparently this desire was realized, as the jury found Appellant guilty of conspiracy, thereby suggesting that that jury believed that Moore and Appellant worked in concert to kill the victim.
¶ 20 The trial court concludes that statements were not hearsay because they "were not admitted to prove that Mr. Moore or the defendant was in fact upset with Mr. Logan, but to show a motive for the killing. As Mr. Green's testimony was introduced for the limited purpose of showing Mr. Moore's animosity towards Mr. Logan, his testimony was clearly admissible." Trial Court Opinion, at 5. The court's argument for the admissibility of the statement appears to us to be wholly contradictory. The court avers that the statement was not admitted to prove that Moore was actually upset with the victim, but to show a motive for killing. However, if Moore was not upset with the victim, there is no motive for the killing. The court then states that the statement was admitted only to show Moore's animosity with the victim, yet as we understand the term, animosity is essentially a synonym for being upset with another. As such, the trial court's support of the admissibility of the statement amounts to this: the statement was not admitted for purposes of showing that Moore was in fact upset with the victim, but rather to show that there was animosity between Moore and the victim. This rationale appears contradictory to this panel.
One could argue that the statements at issue provide Moore with a motive to kill the victim even if Moore was not upset with the victim for failing to pass the gun. That is, Moore may not have been personally upset over the victim's failure to pass the gun, but felt because of the failure that the victim could not be trusted and therefore must be killed. However, in this case, the statement clearly would have been admitted for the truth of the matter asserted therein and therefore would still constitute hearsay. Thus, viewed in either fashion, the statement was indeed offered for the truth of the matter asserted therein.
"Animosity" is defined as "bitter hostility or open enmity." The American Heritage Dictionary 34 (4th Ed. 2001).
¶ 21 In supporting the out-of-court statements as it does, the court appears to be confusing the statement at issue here with one where the person testifying actually witnessed the argument and then attempts to disclose on the witness stand statements made by the participants of the argument. Had Green personally witnessed the argument itself, he could have conveyed not only this fact without creating a hearsay problem, but quite possibly he could have detailed the contents of the statements of the two parties that he overheard without running afoul of the hearsay rule. In this context, the contents of the statements of the persons arguing would not necessarily have been admitted for the purpose of establishing the truth of the contents of the statements but, rather, the contents of the statements might have been relevant to show the heat of the argument which would then be relevant to demonstrate a growing animosity between Moore and the victim.
¶ 22 To illustrate this point further by using a hypothetical scenario, had Green testified that he heard someone tell Moore that the victim had had sexual relations with Moore's girlfriend, the statement would not have been hearsay if viewed in the context that the statements here were admitted. The statement would not have been hearsay because the fact of relevance was not whether the victim had actually had sex with Moore's girlfriend but the fact that Moore was told this by another, a fact which was within the personal observation of Green. In this hypothetical, the ultimate truth of the statement, that the victim had sex with Moore's girlfriend, is immaterial. What would be material is that the statement, true or false, might incite Moore to kill the victim. On the other hand, if the fact of relevance to the case was actually whether the victim had had sex with Moore's girlfriend, the statement would constitute hearsay.
¶ 23 Turning to the second hearsay statement, the second statement is akin to the first in that Green indicates that Moore told Green that he had an argument and then goes on to detail what the argument was about. Even if one were to argue that the details of the argument were not admitted for the truth of the matter contained therein, the fact that an argument occurred comes only from the out-of-court statement. That is, we only know that an argument occurred because Moore told Green that one occurred. As such, Green's statement to the effect that Moore told him that Moore and the victim had an argument constitutes hearsay.
We will not analyze the statement attributed to Moore that people "are going to start disappearing," as that statement was prompted by questioning from Appellant's counsel.
¶ 24 Additionally, assuming that Jameel Green's statement to the police might be admissible under Pa.R.E. 803.1 as a written prior inconsistent statement signed and adopted by the declarant, the portion of the statement which details what Keith Moore told Green constitutes double hearsay. In Commonwealth v. Laich, 777 A.2d 1057, 1060 (Pa. 2001), our Supreme Court made the following commentary with respect to double hearsay:
Hearsay is an out-of-court statement offered to prove the truth of the matter asserted in the statement. Commonwealth v. Puksar, 559 Pa. 358, 740 A.2d 219, 225 (1999), cert. denied, 531 U.S. 829, 121 S. Ct. 79, 148 L. Ed. 2d 42 (2000). An out-of-court declaration containing another out-of-court declaration is double hearsay. Chmiel, 738 A.2d at 417. "In order for double hearsay to be admissible, the reliability and trustworthiness of each declarant must be independently established. This requirement is satisfied when each statement comes within an exception to the hearsay rule." Id.
With respect to what Moore told Green, we see no exception to the hearsay rule which would allow those statements to be introduced. As such, the statements attributed to Moore within the written statement constitute double hearsay to which no exception applies. Thus, the admission of that portion of the written statement violated the hearsay rule.
To the extent the statement was admitted for the sole purpose of impeaching Jameel Green, the evidence would have been unavailable for purposes of proving the conspiracy between Appellant and Moore. Thus, viewing the admission of the evidence in this matter would have altered our analysis of the sufficiency issue and may very well have commanded a different result.
¶ 25 We further believe that the remedy for the admission of the inadmissible hearsay must be a new trial as we cannot conclude that the admission of the evidence was harmless error. As indicated above, the evidence was sufficient to allow a jury to conclude that Appellant acted in concert with Keith Moore to take the victim to an abandoned house for the purposes of murdering Appellant. However, the evidence supporting the verdict was hardly overwhelming and was largely circumstantial. While there was evidence to show that Appellant had motive for killing the victim, there was no direct evidence either that Moore wished to see the victim dead or to explain why Moore would want to see the victim dead. The admission of the hearsay statements provided a potential reason that both Appellant and Moore might desire the victim dead, as it demonstrated that Moore was also upset with the victim. Under these circumstances, this joint motive could then be considered crucial evidence, particularly when it is considered that Oglesby, Moore and the victim knew each other most of their lives while they knew Appellant much more briefly. Had the hearsay evidence been excluded, there would be a critical lack of evidence tying Moore to the commission of the crime and, possibly, insufficient evidence to support the verdict. As such, we are constrained to conclude that the improperly admitted evidence was critical to the Commonwealth's case and that, therefore, Appellant must be awarded a new trial.
"An error is harmless only if the appellate court is convinced beyond a reasonable doubt that the error is harmless. An error cannot be held harmless unless the appellate court determines that the error could not have contributed to the verdict. Whenever there is a reasonable possibility that an error might have contributed to the conviction, the error is not harmless. Thus, `for a reviewing court to conclude that an error is harmless, it must be convinced beyond a reasonable doubt that the error did not contribute to the verdict.' The burden of establishing that an error is harmless beyond a reasonable doubt rests with the Commonwealth." Commonwealth v. Rush, 605 A.2d 792, 794 (Pa. 1992) (quoting Commonwealth v. Baez, 431 A.2d 909, 914 (Pa. 1981)).
¶ 26 For the above reasons, we must vacate the judgment of sentence and remand the case for a new trial.
Our resolution of Appellant's second issue eliminates the need to consider his third issue regarding the severity of his sentence.
¶ 27 Judgment of sentence vacated, remanded for new trial. Jurisdiction relinquished.
¶ 28 Judge Olszewski files a concurring and dissenting opinion.
¶ 1 While I agree with the majority's conclusion that the evidence was sufficient for appellant's conviction of conspiracy to commit murder, I disagree with the majority's analysis of the sufficiency issue and I disagree with the majority's conclusion that appellant is entitled to a new trial based on the hearsay testimony issue. This matter involves two areas of law, the admission of testimony into evidence and the sufficiency of the evidence for a conviction of conspiracy to commit murder. Because I believe the majority misconstrued the law with regard to the testimony admitted at trial and misevaluated the sufficiency of the evidence issue, I am constrained to dissent.
I note that in this matter, the Commonwealth amazingly only addressed the issues raised in appellant's original, pro se brief, and did not file a brief addressing the hearsay issue, raised in appellant's counseled brief.
¶ 2 Appellant claims that he is entitled to a new trial as the result of the trial court's ruling that allowed the introduction of hearsay testimony. As the majority opinion noted, hearsay is "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Pa.R.E. 801(c). There is an exception to the hearsay rule if "the declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement [and the statement is an] inconsistent statement of a witness." Pa.R.E. 803.1. An inconsistent statement of a witness is "a statement by a declarant that is inconsistent with the declarant's testimony, and (a) was given under oath subject to the penalty of perjury at a trail, hearing, or other proceeding, or in a deposition, or (b) is a writing signed and adopted by the declarant, or (c) is a verbatim contemporaneous recording of an oral statement." Pa.R.E. 803.1(1). Nevertheless, each statement of hearsay within hearsay must be independently admissible as well, as "hearsay included within hearsay is not excluded under the hearsay rule if each part of the combined statements conforms with an exception to the hearsay rule . . ." Pa.R.E. 805. Additionally, a witness "may be examined concerning a prior inconsistent statement made by the witness, whether written or not . . ." Pa.R.E. 613(a). In this regard, inconsistent statements of a witness that do not qualify as exceptions to the hearsay rule may still be introduced to impeach the credibility of the witness. See Comment, Pa.R.E. 803.1.
¶ 3 The trial court ruled that the statements at issue were not hearsay because they "were not admitted to prove that Mr. Moore or the defendant was in fact upset with Mr. Logan, but to show . . . animosity toward Mr. Logan." Trial Court Opinion, 9/22/04, at 5. The majority opinion plainly determined that the two statements at issue constituted hearsay because they were both offered to prove the truth of the matter asserted. While the majority was compelled to address the possible exceptions to the hearsay rule, the majority did not substantially address the possible applicability of Rule 613, under which statements are offered, not to prove the truth of the matter asserted, but for impeachment purposes as prior inconsistent statements.
The statements in question are: "[w]ell, Dion told me that he and Will had an argument because about two weeks before Will got killed, Ray-Ray had got shot at Croskey and Norris Street. Dion told me that he argued with Will because Will had a burner, a gun, and didn't pass it off to Ray-Ray when he was getting shot at" and "Dion said he asked Will why he didn't pass the burner when they were shooting at Ray-Ray. Dion said that Will said he didn't have nothing to do with that. Then Dion asked Will if he could hold Will's gun. Then they started arguing about Will not letting Dion hold his gun." N.T., 6/2/04, at 195, 197.
¶ 4 Here, while I agree that the trial court erred in its analysis of the issue, I believe the majority's analysis is equally flawed. Initially, I note that the majority did address a possible exception to the hearsay rule in this matter, Rule 803.1, even though, as here, the exception is ultimately inapplicable. The Rule 803.1 exception does not apply in this case, as the majority stated, because, while it appears the witness's statements meet the strictures of the exception to the hearsay rule, the hearsay within the statement does not satisfy the requirements of Rule 805.
The majority's discussion of the hearsay issue is also replete with references to relevancy, stating while analyzing the hearsay issue, "that is, for the statements to have any relevance to the case . . ." and "the fact of relevance with respect to Moore . . ." Majority Opinion, at 10-13. Relevancy, however, a distinct challenge to the admission of evidence at trial, was not raised in the present appeal.
¶ 5 Nevertheless, the majority noted that during the questioning of Jameel Green, Green was asked if Moore had harsh feelings toward the victim; Green responded by stating that Moore never said that he had harsh feelings toward the victim; and ultimately, this testimony contradicted a statement Green had given to the police earlier. Though the majority states that "in light of the inconsistent position, the prosecutor . . . then began using the statements to essentially impeach the witness . . .", the majority failed to properly address the applicability of Rule 613, related to impeachment. These two statements, while inadmissible under the hearsay rule, were clearly admissible under the rules governing impeachment, as these statements were being utilized, not to prove the truth of the matter asserted, but rather, for impeachment purposes, in order to show prior inconsistent statements of the witness. The majority declared, in a footnote, that viewing the evidence in this manner "would have altered our analysis of the sufficiency issue and may very well have commanded a different result." While I do not agree, as the majority alludes, that applying the rules of evidence related to impeachment in this case would have commanded a different result with regard to the sufficiency issue, I do believe that it is our mandate to properly apply the rule of law, specifically the rules of evidence here, even if such an application results in an outcome that alters an earlier, incorrect analysis. Therefore, I cannot agree with the majority that the statements should have been excluded at trial.
¶ 6 Appellant also claims that the evidence was insufficient for his conviction of conspiracy to commit murder. As the majority opinion noted, "an individual is guilty of conspiracy if, with the intent to promote or facilitate a crime, he or she agreed to aid another person in the attempt, solicitation, planning, or commission of the crime." Commonwealth v. Neckerauer, 617 A.2d 1281, 1288 (Pa.Super. 1992). Moreover, "the Commonwealth may sustain its burden of proving every element of the crime beyond a reasonable doubt by means of wholly circumstantial evidence." Commonwealth v. Griscavage, 517 A.2d 1256, 1257 (Pa. 1986).
¶ 7 The majority determined that based in large part on the statements admitted into evidence, as discussed above, the evidence was sufficient for appellant's conviction of conspiracy. While I agree that the evidence was sufficient for appellant's conviction, I believe that there was sufficient evidence, independent of the statements at issue, for his conviction. Both the direct and circumstantial evidence established that appellant and his co-conspirator first obtained weapons and then searched for the victim. After finding the victim, they lured him, following a car ride, to an abandoned house. Therein, appellant, with his co-conspirator present, finally aimed a gun directly at the victim, shot, and killed him. In addition to this evidence, both the victim's brother and an eyewitness, Anthony Oglesby, testified to the events on the day of the murder. The victim's brother testified that appellant and his co-conspirator picked the victim up in a vehicle driven by appellant; and Oglesby testified that appellant wanted to kill the victim and that appellant shot and killed the victim. All of this evidence, as well as all reasonable inferences drawn therefrom, viewed in the light most favorable to the Commonwealth as the verdict winner, independently and sufficiently supported appellant's conviction of conspiracy to commit murder. Therefore, I cannot agree with the majority's analysis of the issue.
¶ 8 Ultimately, the majority determined that the evidence was sufficient for appellant's conviction, but that the statements at issue, used to arrive at the sufficiency determination, were improperly admitted at trial. At the same time, the majority acknowledges that the statements could have been admitted for the sole purpose of impeachment; however, the majority declines to admit the statements for impeachment purposes, claiming that the previously decided sufficiency issue may then be adversely affected. The majority ruled that appellant is now entitled to a new trial. These determinations are as illogical as they are inappropriate. The testimony at issue was properly admitted for impeachment purposes, and concomitantly, the entirety of the properly considered evidence was sufficient for appellant's conviction. As I believe appellant's third issue is also meritless, I would affirm the judgment of sentence.