Opinion
J-S72027-17 No. 3011 EDA 2016
01-26-2018
COMMONWEALTH OF PENNSYLVANIA v. WELDON LUCAS, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence September 9, 2016 in the Court of Common Pleas of Philadelphia County, Criminal Division at No(s): CP-51-CR-0016035-2008 BEFORE: BENDER, P.J.E., MUSMANNO, J., and STEVENS, P.J.E. MEMORANDUM BY MUSMANNO, J.:
Former Justice specially assigned to the Superior Court.
Weldon Lucas ("Lucas") appeals from the judgment of sentence imposed, upon resentencing, for his conviction of criminal conspiracy. See 18 Pa.C.S.A. § 903(a)(1). We affirm.
The trial court concisely summarized the relevant history underlying this appeal in its Pa.R.A.P. 1925(a) Opinion, which we incorporate herein by reference. See Trial Court Opinion, 12/30/16, at 2-4 (hereinafter referred to as the "Rule 1925(a) Opinion").
Upon resentencing on September 9, 2016, pursuant to this Court's directive in Commonwealth v. Lucas , 46 A.3d 810 (Pa. Super. 2012) (unpublished memorandum), the trial court imposed a mandatory minimum sentence of ten to twenty years in prison on Lucas's criminal conspiracy conviction, under the "second-strike" statute, 42 Pa.C.S.A. § 9714(a)(1). Lucas thereafter filed a timely Notice of Appeal, followed by a court-ordered Pa.R.A.P. 1925(b) Concise Statement of errors complained of on appeal. The trial court then issued its Rule 1925(a) Opinion.
Lucas now presents the following issues for our review:
1. Did the trial court [] err in instructing the jury that [Lucas] could be found guilty of criminal conspiracy if the jury found that the evidence established a criminal conspiracy to commit aggravated assault, when [Lucas] was only charged through a bill of information with criminal conspiracy to commit murder, 18 Pa.C.S[.A.] § 903[(a)(]1[)], when he was only arraigned prior to trial on the charge of criminal conspiracy to commit murder, 18 Pa.C.S[.A.] § 903[(a)(]1[)], and when criminal conspiracy is a specific intent crime? Was the recording of the verdict in relation to the criminal conspiracy charge not similarly in error?Brief for Appellant at 2 (some capitalization omitted). We will address Lucas's issues together, as both challenge the trial court's jury instructions.
2. Did the trial court [] err by not instructing the jury that[,] in order to find [Lucas] guilty of criminal conspiracy to commit murder[,] the jury must find that [Lucas] possessed the specific intent to kill?
We observe that, concerning Lucas's second issue, he does not provide a corresponding discussion of this issue under a separate heading in the Argument section of his brief, nor any citation to authority. See Pa.R.A.P. 2119(a) (requiring the appellant to divide the argument section into separate sections for each issue set forth in the statement of questions presented, and develop an argument with citation to and analysis of relevant legal authority). Nevertheless, we decline to find waiver on this basis, as (1) we are able to discern the crux of Lucas's argument; and (2) Lucas raised this claim before the trial court, which addressed it in its Rule 1925(a) Opinion. See Commonwealth v. Levy , 83 A.3d 457, 461 n.2 (Pa. Super. 2013) (declining to find waiver where omissions did not impede review); Commonwealth v. Rodgers , 605 A.2d 1228, 1233 (Pa. Super. 1992) (same).
When reviewing a challenge to a jury instruction, we apply the following standard of review:
We must review the jury charge as a whole to determine if it is fair and complete. A trial court has wide discretion in phrasing its jury instructions, and can choose its own words as long as the law is clearly, adequately, and accurately presented to the jury for its consideration. The trial court commits an abuse of discretion only when there is an inaccurate statement of the law.Commonwealth v. Jones , 954 A.2d 1194, 1198 (Pa. Super. 2008) (citation omitted).
Lucas argues that the trial court erred as a matter of law when it instructed the jury that it could find Lucas guilty of criminal conspiracy if it found that the evidence established a criminal conspiracy to commit aggravated assault, where Lucas was never charged with that crime, and thus had no opportunity to defend against it. Brief for Appellant at 9. According to Lucas, "[t]he trial court's jury instruction constituted an improper amendment of the Bills of Information in the absence of a request [by] the Commonwealth. In so doing, the trial court invaded the prosecutorial function." Id. Lucas further argues as follows:
The original [I]nformation charged [Lucas] with criminal conspiracy to commit murder - a specific intent crime. The amendment, however, charged [Lucas] with criminal conspiracy [to commit] aggravated assault. It is clear that there is a reduced element with the new offense. One must also conclude that [Lucas] was substantially prejudiced by such amendment[,] and his right to due process of law ... was violated.Id. at 10-11 (some capitalization omitted). Additionally, Lucas argues that the trial court erred by failing to instruct the jury that, in order to convict Lucas of criminal conspiracy to commit murder, the jury must find that he had the specific intent to kill. Id. at 6. Accordingly, Lucas asks that we vacate his conspiracy conviction, and remand the matter for resentencing on his remaining convictions. Id. at 11.
In its Rule 1925(a) Opinion, the trial court conceded that it had committed legal error in (1) improperly instructing the jury that it could find Lucas guilty of criminal conspiracy to commit aggravated assault, where he was not charged or arraigned on that offense; and (2) failing to properly instruct the jury on the requisite specific intent necessary for a conviction of either conspiracy to commit murder or conspiracy to commit aggravated assault. See Trial Court Opinion, 12/30/16, at 4-5. We incorporate herein the trial court's analysis. See id. In sum, the trial court urged this panel to vacate Lucas's conspiracy conviction, as it is invalid as a matter of law and "lacks the integrity that justice requires." Id. at 4.
We also refer the reader to the trial court's more thorough analysis concerning this matter advanced in a prior Opinion. See Trial Court Opinion, 4/29/11, at 8-15, 27-41 (hereinafter referred to as the "2011 Trial Court Opinion").
However, we must determine whether Lucas preserved his challenge to the trial court's jury instructions. The record reveals that Lucas's defense counsel never objected to the trial court's (1) initial jury instruction on criminal conspiracy, see N.T., 5/21/10, at 3, 97-103, 118; (2) failure to give an instruction concerning the specific intent necessary for a predicate offense of either first-degree murder or aggravated assault, see id.; or (3) instruction given in response to the jury question as to the predicate offense for the conspiracy charge, see N.T., 5/24/10, at 9-10. Indeed, on this latter point, the trial transcript reveals that Lucas's counsel specifically agreed to the trial court's instruction. See N.T., 5/24/10, at 9-10.
The trial court, in its 2011 Trial Court Opinion, acknowledged these failures to object. See Trial Court Opinion, 4/29/11, at 8-9, 15.
Issues not raised in the lower court are waived and cannot be raised for the first time on appeal. Pa.R.A.P. 302(a). It is well-settled that a "specific and timely objection must be made to preserve [a] challenge to [a] particular jury instruction[, and] failure to do so results in waiver[.]" Commonwealth v. Forbes , 867 A.2d 1268, 1274 (Pa. Super. 2005) (citation omitted); see also Commonwealth v. Shamsud—Din , 995 A.2d 1224, 1226 (Pa. Super. 2010) (reiterating that failure to object to a jury instruction constitutes waiver of a challenge to an error in the instruction). Further, Pennsylvania Rule of Criminal Procedure 647 provides, in relevant part, that "[n]o portions of the charge nor omissions from the charge may be assigned as error, unless specific objections are made thereto before the jury retires to deliberate." Pa.R.Crim.P. 647(C)); see also Commonwealth v. Pressley , 887 A.2d 220, 225 (Pa. 2005) (stating that Rule 647 requires a specific objection to a jury charge or exception to the trial court's ruling on a proposed point to preserve a challenge to a jury instruction on appeal).
Though we are sympathetic to Lucas's plight, based on his counsel's failure to object to the jury instructions, we are constrained to rule that Lucas has waived his claims in the instant appeal. See Forbes , 867 A.2d at 1274 (finding that the appellant waived his challenge to the court's jury instruction on the elements of burglary where he did not object to that charge); see also Pa.R.Crim.P. 647(C).
In so holding, however, we emphasize Lucas's right to seek collateral review, under the Post Conviction Relief Act ("PCRA"), see 42 Pa.C.S.A. §§ 9541-9546, alleging that his defense counsel was ineffective for failing to object to the jury instructions. Should Lucas file a timely PCRA petition, the PCRA court will, naturally, have the discretion to afford any relief permissible under the PCRA, including a new trial, consistent with the court's reasoning in its Rule 1925(a) Opinion and 2011 Trial Court Opinion. --------
Accordingly, we affirm Lucas's judgment of sentence. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 1/26/18
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