Com. v. Riley

• Decision Date: 14 November 2002
• Citation: 811 A.2d 610
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. James Thomas RILEY, Appellant.
• Court: Pennsylvania Superior Court

811 A.2d 610

COMMONWEALTH of Pennsylvania, Appellee v. James Thomas RILEY, Appellant.

Superior Court of Pennsylvania.

Submitted April 15, 2002.

Filed November 14, 2002.

M. Susan Ruffner, Public Defender, Pittsburgh, for appellant.

Michael W. Streily, Deputy District Attorney, Sandra Preuhs, Asst. Dist. Atty., Pittsburgh, for Commonwealth, appellee.

Before: LALLY-GREEN, TODD, and HESTER, JJ.

TODD, J.

¶ 1 James Thomas Riley appeals the judgment of sentence of 11 ½ to 23 months imprisonment entered February 20, 2001 by the Court of Common Pleas of Allegheny County following his conviction by a jury of criminal conspiracy.¹ Upon review of the record before us, while we affirm the conviction, we vacate and remand for resentencing.

¶ 2 The relevant facts and procedural history are as follows. Appellant was charged by criminal information filed November 29, 1999 with one count each of criminal conspiracy, burglary² and theft by unlawful taking or disposition³ as a result of an incident that occurred on July 19, 1999 at the home of Joseph Malone in Pittsburgh. Testimony at trial revealed that Malone was romantically involved with Joanne Feicht, but that Feicht was angry with him because he had physically abused her and killed her cats. On July 19, 1999, Appellant Riley was visiting Feicht at her apartment. Also present were Malone and several others. During this time, Feicht secretly revealed to Riley her disdain for Malone because of his actions toward her. At trial, she testified that Riley offered to rob Malone for her and she agreed. Feicht gave Riley directions to Malone's home, which was in the North Hills section of Pittsburgh. Feicht then instructed Riley to remove Malone's garage door opener from his car to gain access to his house while she distracted Malone.

¶ 3 Feicht further testified that when she, Riley and Malone left her apartment, Riley entered Malone's vehicle while offering to drive Feicht and Malone wherever they wanted to go. Feicht stated that she believed Riley had access to Malone's garage door opener while he was in Malone's car and could have removed it at that time, but she did not see him do so. Malone then asked Riley to get out of his car and did not accept Riley's offer to drive. Feicht and Malone then went shopping and to a bar for a few drinks before returning to Feicht's apartment, where they ate dinner. After dinner, Malone fell asleep on the sofa. He awakened later in the evening and Feicht drove him home.

¶ 4 When Feicht and Malone arrived at Malone's house, he quickly discovered that he had been burglarized. He contacted the police to report the burglary and advised them that he believed Feicht had drugged him and burgled his house. He later recanted this story and testified that he did not believe Feicht left her apartment during that time when he had fallen asleep on her sofa. Malone testified at trial that the people who had knowledge of the valuables kept in his home were Feicht, Shirley Hanley, with whom Malone allegedly was involved in a romantic relationship, and Hanley's son. Malone reported to police that more than $200,000 worth of property was missing from his home.

¶ 5 When Feicht initially was questioned about the burglary on the night it was discovered, she denied any involvement. However, on August 7, 1999, Malone and Feicht appeared together at the Ross Township Police Department and Feicht gave an emotional statement to police implicating herself and Riley in the burglary. On December 1, 2000, a jury found Riley guilty of criminal conspiracy, but not guilty of the remaining charges.

¶ 6 On December 14, 2000, Riley filed a Motion for Extraordinary Relief in which he challenged both the sufficiency and weight of the evidence relied upon. The Honorable W. Terrence O'Brien, who presided over Riley's trial, addressed these issues at the sentencing hearing on February 20, 2001, as well as immediately acknowledging the existence of an ambiguity in the jury's verdict:

THE COURT: The record should reflect that Mr. Riley [w]as convicted by a jury of conspiracy to commit either theft or burglary. I'm not sure whether that was determined. Count 3 alleges that he conspired with Ms. Ficht [sic] to commit such [crime] or crimes, referring to Count 1 and Count 2, which are burglary and theft. I don't think the jury's verdict indicates necessarily which. Does anyone believe that's an issue?

(N.T. Sentencing, 2/20/01, at 1.)

¶ 7 Defense counsel indicated that she believed that the court should, "in all fairness to Mr. Riley," have to assume that the jury "was indicating his guilt in a conspiracy with regard to the theft by unlawful taking," because to interpret the jury's verdict to mean that Appellant was guilty of conspiracy to commit burglary would increase the potential penalty "without having a clear cut word from the jury." (Id.) The Commonwealth argued alternatively that the way the verdict slip was phrased indicated that the jury found Riley guilty of conspiracy to commit both theft and burglary. (Id. at 2.) Following extensive argument on the record regarding the fact that burglary is graded as a felony of the first degree and theft is a felony of the third degree, Judge O'Brien stated:

THE COURT: Of course, the defendant wouldn't have to have entered the house for the defendant to be guilty of conspiracy to burglarize the home. It would be sufficient if he entered into an agreement with somebody else that somebody would go into the house and take something, and I believe that the jury did find him guilty of conspiracy to commit both crimes. I think it's very clear that's the situation here. So, I'm going to make a finding that this conviction is a felony of the first degree.

(Id. at 11-12.)

¶ 8 Judge O'Brien, ruling that the evidence was sufficient for the jury to have convicted Riley of conspiracy to commit both burglary and theft, then sentenced Riley to 11½ to 23 months imprisonment under the sentencing guidelines for conspiracy to commit burglary rather than under those applicable to the offense of conspiracy to commit theft, stating that he believed that it was appropriate to conclude that Riley entered into a conspiracy to commit burglary, as well as theft. (We review this determination below.) Consequently, Judge O'Brien graded the conspiracy offense as a felony of the first degree and implemented the sentencing guidelines appropriate for burglary, a felony of the first degree. (Id. at 18.) This timely appeal followed.

¶ 9 Appellant presents the following questions, which we have renumbered, for our consideration:

I. Was the evidence sufficient to establish guilt beyond a reasonable doubt that Mr. Riley entered into a conspiracy and committed the overt act alleged?

II. Was the verdict against the weight of the evidence when that evidence was so unreliable and contradictory any verdict based thereon is pure conjecture and so contrary to the evidence as to shock one's sense of justice when the verdict was based on testimony lacking in credibility and inconsistent statements of the Commonwealth's witnesses? III. Did the court improperly find, as a matter of fact, that the jury convicted Mr. Riley of conspiracy to commit burglary, rather than the crime of conspiracy to commit theft?

(Brief for Appellant, at 5.)

¶ 10 For purposes of our analysis, we first shall address the question of whether the evidence presented to the jury was sufficient to support its determination that Appellant entered into a conspiracy and committed the alleged overt acts. When reviewing a claim that the evidence was insufficient to sustain an appellant's conviction,

an appellate court, viewing all the evidence and reasonable inferences therefrom in the light most favorable to the Commonwealth as the verdict winner, must determine whether the evidence was sufficient to enable the fact finder to find that all of the elements of the offenses were established beyond a reasonable doubt.

Commonwealth v. Hawkins, 549 Pa. 352, 366, 701 A.2d 492, 499 (1997). Moreover, "[t]he Commonwealth may sustain its burden by proving the crime's elements with evidence which is entirely circumstantial and the trier of fact, who determines credibility of witnesses and the weight to give the evidence produced, is free to believe all, part, or none of the evidence." Commonwealth v. Brown, 701 A.2d 252, 254 (Pa.Super.1997) (citations omitted). Furthermore, "[t]his standard is equally applicable to cases where the evidence is circumstantial rather than direct so long as the combination of the evidence links the accused to the crime beyond a reasonable doubt." Commonwealth v. Hardcastle, 519 Pa. 236, 246, 546 A.2d 1101, 1105 (1988).

¶ 11 The conspiracy count of the information, Count 3, charged Riley with conspiracy and alleged overt acts, one related to burglary and one related to theft. It reads:

The actor, with the intent of promoting or facilitating the crime(s) charged above [Count 1—Burglary and Count 2—Theft], conspired and agreed with Joanna Feicht, that they or one or more of them would engage in conduct constituting such crime or crimes, and in furtherance thereof did commit the overt act of entering a house without authorization and/or taking various items without authorization, in violation of Section 903(a)(1) of the Pennsylvania Crimes Code, Act of December 6, 1972, 18 Pa. C.S.A. § 903(a)(1).

(Information, 11/29/99, at 2.)

¶ 12 The Pennsylvania Crimes Code provides, in relevant part, that:

(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

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