J-S42005-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

DAVID JAMES MCCLELLAND 

APPELLANT

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1191 WDA 2021

Appeal from the PCRA Order Entered September 8, 2021

In the Court of Common Pleas of Washington County Criminal Division at 

No(s): CP-63-CR-0001884-2011

BEFORE: BOWES, J., OLSON, J., and COLINS, J.*

MEMORANDUM BY BOWES, J.: FILED: MARCH 30, 2023

David James McClelland appeals from the order dismissing his petition 

pursuant to the Post Conviction Relief Act (“PCRA”). We affirm the PCRA 

court’s order. However, because Appellant’s conduct was the result of a 

single, continuous conspiratorial relationship to commit burglary, we vacate 

Appellant’s sentences for conspiracy, and his convictions for conspiracy to 

commit the crimes of criminal homicide, dealing in proceeds of unlawful 

activity, robbery, and theft by unlawful taking. We hereby remand for 

resentencing on the charge of conspiracy to commit burglary. Our decision 

here today does not disturb Appellant’s convictions and sentences for second-

____________________________________________

* Retired Senior Judge assigned to the Superior Court.
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degree murder, dealing in proceeds of unlawful activities, or receiving stolen 

property.1 

This Court previously detailed the underlying factual and procedural 

history of this case. See Commonwealth v. McClelland, 133 A.3d 76 

(Pa.Super. 2015) (unpublished memorandum) (“McClelland I”). Briefly,

Appellant, along with his father, David A. McClelland, and his step-mother,

Diane McClelland, “engaged in numerous burglaries and thefts of cash from 

the home of Evelyn Stepko, their elderly neighbor, who lived alone, beginning 

in August 2009 and continuing through July 18, 2011, when [Ms.] Stepko was 

found murdered in her home.” Id. (unpublished memorandum at 1-2). 

Appellant, a municipal police officer at the time, received large amounts of 

cash from his father that he knew had been stolen from Ms. Stepko. Appellant 

asked for additional money, which he used at the casino and to purchase 

various items. He also received gifts of a vehicle and a house that were 

purchased with funds stolen from Ms. Stepko. See id. The McClellands were 

tried separately.

Prior to Appellant’s jury trial, the Commonwealth tendered three plea 

offers: (1) ten to twenty years of incarceration in exchange for also testifying 

____________________________________________

1 As will be explained further infra, Appellant was sentenced to life 

imprisonment without the possibility of parole for second-degree murder plus 

consecutive sentences for dealing in proceeds of unlawful activity, receiving 

stolen property, and conspiracy. Our disposition only affects Appellant’s 

conspiracy sentence, which was imposed at the conspiracy to commit seconddegree murder count. The four remaining conspiracy convictions merged with 

that count for sentencing.
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against Mrs. McClelland; (2) twenty to forty years of incarceration; and (3) 

twenty-five to fifty years of incarceration. See N.T. PCRA Hearing, 7/22/21, 

at 9, 15, 30. All three plea offers required Appellant to plead guilty to thirddegree murder, which he refused to do. Following the trial, the jury convicted 

Appellant of second-degree murder, dealing in proceeds of unlawful activity, 

receiving stolen property, and conspiracy to commit the crimes of criminal 

homicide, dealing in proceeds of unlawful activity, robbery, burglary, and theft 

by unlawful taking. 

Appellant was sentenced to the following terms of incarceration: life 

imprisonment without the possibility of parole (“LWOP”) for second-degree 

murder, two to four years for dealing in proceeds of unlawful activity, ten to 

forty years for the conspiracy charges,2 and two to four years for receiving 

stolen property. All sentences were set to run consecutively to each other, 

for an aggregate sentence of life imprisonment plus fourteen to forty-eight 

years of incarceration. This Court affirmed Appellant’s judgment of sentence

and our Supreme Court denied his petition for allowance of appeal. See id., 

appeal denied, 138 A.3d 3 (Pa. 2016). Of relevance to the instant appeal, 

____________________________________________

2 Although the court indicated it was imposing a sentence of ten to forty years 

of incarceration for all five conspiracy charges, the court commitment forms 

indicate that the incarceration sentence was only imposed at the conspiracy 

to commit criminal homicide charge, and the other conspiracy convictions 

merged for sentencing purposes.
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Joshua Camson, Esquire, represented Appellant throughout the trial and direct 

appeal proceedings.3

In 2017, Appellant retained new counsel and timely filed the present

PCRA petition, his first. Generally, Appellant argued that Attorney Camson 

provided ineffective assistance during three separate phases, namely: (1) 

pretrial, by providing deficient advice with regard to plea negotiations and for 

not requesting a change of venue or questioning of potential jurors; (2) trial,

by failing to object to the court’s definition of conspiracy as part of its seconddegree murder jury instruction;

4 and (3) appeal, by failing to preserve in

Appellant’s Rule 1925(b) statement his challenge to the sufficiency of the 

evidence to support his convictions for conspiracy and second-degree murder. 

After filing notice of its intent to dismiss the petition without a hearing

pursuant to Pa.R.Crim.P. 907, the PCRA court dismissed Appellant’s petition. 

On appeal to this Court, Appellant challenged the PCRA court’s decision 

to dismiss, without a hearing, his PCRA petition. Finding it dispositive, we first 

considered whether the PCRA court erred in dismissing without a hearing 

Appellant’s claim that Attorney Camson provided deficient advice during the

plea negotiations. In this regard, Appellant had argued that Attorney Camson

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3 We note that Attorney Camson was appointed to represent Appellant 

approximately five months before his jury trial commenced. Prior to Attorney 

Camson’s appointment, Daniel Chunko, Esquire, represented Appellant.

4 Appellant and the PCRA court generally refer to second-degree murder as 

felony murder. While the terms are interchangeable, we will utilize the more 

formal nomenclature within this memorandum and refer to this type of 

homicide as second-degree murder.
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misadvised him as to what the Commonwealth needed to prove for a jury to 

convict Appellant of murder, misunderstood the Commonwealth’s continuingconspiracy theory of the case, and failed to inform Appellant of inculpatory 

evidence. See Commonwealth v. McClelland, 239 A.3d 109 (Pa.Super. 

2020) (non-precedential decision at 6-7) (“McClelland II”). We agreed with 

Appellant’s legal arguments and concluded that if the facts as alleged were 

true, counsel would arguably have rendered ineffective assistance. See id. 

(non-precedential decision at 8-10). However, because the PCRA court did 

not conduct a hearing, we could “not discern from the record before us 

evidence of what trial counsel advised Appellant during plea negotiations, and 

the relationship, if any, of trial counsel’s actions and advice to Appellant’s 

assertions of ineffectiveness.” Id. (non-precedential decision at 11). Finding 

our review hindered, we vacated the PCRA court’s order and remanded for an 

evidentiary hearing. See id. (non-precedential decision at 12); see also id. 

(non-precedential decision at 11) (“Issues of fact exist because we do not 

have a record of trial counsel’s actions and advice during plea negotiations, 

[nor do we have] the basis for the PCRA court’s conclusion that Appellant 

would never have accepted a plea.” (cleaned up)). 

On remand, the PCRA court held an evidentiary hearing, at which 

Appellant and Attorney Camson testified. Although not so limited by our 

remand directive, the evidentiary hearing solely related to Attorney Camson’s 

representation during the plea proceedings; no testimony was elicited nor 

evidence offered with respect to Appellant’s ineffectiveness claims as to the
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court’s jury instructions, change of venue or questioning of potential jurors, 

or issue preservation on appeal. The PCRA court ultimately dismissed 

Appellant’s PCRA petition. 

This timely filed appeal followed. Both Appellant and the PCRA court 

have complied with Pa.R.A.P. 1925. With the matter before this Court once 

again, Appellant presents the following issues for our consideration:

5

 

I. Did the [PCRA] court abuse its discretion in denying the 

PCRA petition where trial counsel was ineffective for failing 

to object to the deficient jury instructions on conspiracy as 

it related to the [second-degree] murder charge?

II. Did the [PCRA] court abuse its discretion in denying the 

PCRA petition where [Appellant] established that he was 

denied the effective assistance of counsel during the plea 

bargaining stage of his criminal prosecution, specifically, his 

trial counsel failed to give him adequate, accurate and 

competent advice about whether to accept or reject a plea 

offer?

III. Did the [PCRA] court abuse its discretion in denying the 

PCRA petition where trial counsel was ineffective for not 

requesting a change of venue based on pretrial publicity, 

and for not requesting that the prospective juror be 

questioned regarding their impartiality after hearing a 

potential juror express his belief that [Appellant] was guilty; 

alternatively, was counsel ineffective for not raising the 

issue on appeal that the court abused its discretion in 

denying a motion for change of venire?

IV. Did the [PCRA] court abuse its discretion in denying the 

PCRA petition where counsel was ineffective for failing to 

preserve the issue for appeal that the evidence was 

insufficient as a matter of law to sustain the convictions of 

criminal conspiracy to commit burglary or robbery, 

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5 We note that these are the same issues Appellant had raised on appeal from 

the PCRA court’s prior order dismissing this PCRA petition.
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conspiracy to commit homicide – second degree murder, 

and second degree murder?

Appellant’s brief at 4 (cleaned up).

We begin with our well-settled standard of review.6

When reviewing the propriety of an order pertaining to PCRA

relief, we consider the record in the light most favorable to the 

prevailing party at the PCRA level. This Court is limited to 

determining whether the evidence of record supports the 

conclusions of the PCRA court and whether the ruling is free of 

legal error. We grant great deference to the PCRA court’s findings 

that are supported in the record and will not disturb them unless 

they have no support in the certified record. However, we afford 

no such deference to the post-conviction court’s legal conclusions. 

We thus apply a de novo standard of review to the PCRA court’s 

legal conclusions.

Commonwealth v. Mojica, 242 A.3d 949, 953 (Pa.Super. 2020) (cleaned 

up).

Appellant’s PCRA claims all implicate the effective assistance of counsel. 

Thus, our review is also guided by the following principles. “When reviewing 

claims of ineffective assistance of counsel, courts must presume that counsel 

provided effective assistance.” Id. at 955 (cleaned up). In order to overcome 

this presumption, a petitioner must “plead and prove that (1) the claim has 

arguable merit; (2) counsel lacked any reasonable basis for the action or 

____________________________________________

6 We note that the Commonwealth has asked this Court to dismiss the instant

appeal because Appellant filed his brief and reproduced record late. See

Commonwealth’s brief at 13-14. “[T]he late filing of an appellate brief may 

result in sanctions from the appellate court, including . . . dismissal of the 

appeal, where the late filing impedes our review.” Clark v. Peugh, 257 A.3d 

1260, 1264 n.1 (Pa.Super. 2021) (cleaned up). While we do not condone the 

lateness of Appellant’s filings, we decline to dismiss the instant appeal as 

Appellant’s tardiness has not impeded our review. See id.
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inaction; and (3) the petitioner suffered prejudice as a result.” Id. (cleaned 

up). “Failure to satisfy any prong of the test will result in rejection of the 

appellant’s ineffective assistance of counsel claim.” Id. (cleaned up). 

Appellant first argues that the PCRA court erred in dismissing his claim 

that Attorney Camson was ineffective for failing to object to the conspiracy 

portion of the trial court’s second-degree murder jury instruction. See

Appellant’s brief at 9. Whether the underlying claim has legal merit is 

governed by the following principles:

In examining jury instructions, our standard of review is to 

determine whether the trial court committed a clear abuse of 

discretion or an error of law controlling the outcome of the case. 

A charge will be found adequate unless the issues are not made 

clear, the jury was misled by the instructions, or there was an 

omission from the charge amounting to a fundamental 

error. Moreover, in reviewing a challenge to a jury instruction the 

entire charge is considered, not merely discrete portions 

thereof. The trial court is free to use its own expressions as long 

as the concepts at issue are clearly and accurately presented to 

the jury.

Commonwealth v. Bradley, 232 A.3d 747, 759 (Pa.Super. 2020) (cleaned 

up). 

Turning to the relevant portion of the court’s instructions, after defining 

malice and the possible verdicts for the general charge of criminal homicide, 

the court provided the following instruction regarding second-degree murder:

For murder of the 2nd degree or felony murder, 2nd degree 

murder as commonly called, a killing is with malice if the 

perpetrator engages in one of certain enumerated felonies, 

including robbery and burglary, and a killing occurs.
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Since the law, through the felony murder rule allows the 

finder of fact, the jury, to infer that the killing was malicious from 

the fact that the actor was engaged in a felony, such as robbery 

or burglary, of such a dangerous nature to human life that the 

perpetrator is held to the standard of a reasonable man, knew or 

should have known that death might result from that felony.

. . . . 

I will now define 2nd degree murder. I will start with some 

terminology and basic principles. The more serious types of 

crimes in our states are called felonies. For example, burglary 

and robbery are felonies. 2nd degree murder is often called felony 

murder because it’s a killing connected with a felony. When two 

people are partners in a successful or unsuccessful attempt to 

commit a felony, and one of them kills a third person, both 

partners may be guilty of felony murder. Neither partner has to 

intend to kill, nor anticipate that anyone will be killed.

The defendant has been charged with 2nd degree murder, 

that is felony murder. To find the defendant guilty of this offense, 

you must find that the following four elements have been proven 

beyond a reasonable doubt:

First, that the defendant. . . and/or his co[-]defendant, 

David A. McClelland, killed or caused the death of Evelyn Stepko.

Second, that the defendant. . . and/or his co-felon. . . did 

so while he and co-felon were partners in committing certain 

burglaries or robberies.

Third, that the defendant. . . and/or his co-felon. . . did the 

act that killed or caused the death of Evelyn Stepko in furtherance 

of the burglary and/or robbery.

Fourth, that the defendant was acting with malice. You may 

find that the defendant was acting with malice if you are satisfied 

beyond a reasonable doubt that he and David A. McClelland were 

partners in committing the burglary and/or robbery. Because 

burglary and robbery are crimes that are inherently dangerous to 

human life, there does not have to be any other proof of malice 

for 2nd degree murder. 
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I shall now define burglary and robbery for you. The 

defendant has been charged with 2nd degree murder and this also 

relates to the conspiracy to commit burglary, which I will get to 

shortly. 

I will now define the elements of burglary [and robbery] as 

it relates to these charges.

. . . . 

Going back to the requirement that the defendant and David 

A. McClelland were partners in committing the burglary and/or 

robbery, I instruct you that the two of them were partners if they 

conspired to commit the burglary and/or robbery. Two or more 

people conspire to commit a crime if with the intent of encouraging 

or helping the commission of the crime, they agree that one or all 

of them will commit the crime or that one of them will help the 

others in planning it and committing it. Their agreement may be 

express and verbal, they may actually talk about it, or their 

agreement may be an unspoken agreement that can be inferred 

from their words and their conduct and the surrounding 

circumstances. Each knows what the other is thinking, they don’t 

have to talk about it.

Finally, to commit the conspiracy, one of the conspirators 

must commit what the law calls an overt act. An overt act is an 

act by any member of the conspiracy that would serve to further 

the goal of the conspiracy. Here, the Commonwealth contends 

that the burglary and the robbery and the murder were such overt 

acts.

I shall now explain the meaning of in furtherance as it 

relates to 2nd degree murder. A partner’s act that kills is 

considered to be in furtherance of the felony even though such 

crime was not contemplated or approved by the parties, if it was 

the natural and probable consequence of the partner’s conduct. A 

partner’s act that kills is not in the furtherance of the felony if the 

partner does the act for his or her own personal reasons that are 

independent of the felony. 

N.T. Jury Trial Volume VII, 4/9/13, at 1162-1168 (cleaned up). Four pages 

later, after defining the charged choate crimes, the court instructed the jury 
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on conspiracy as it related to the crimes of criminal homicide, dealing in 

proceeds of unlawful activities, robbery, burglary, and theft by unlawful 

taking:

In Pennsylvania, joining in a conspiracy or creating a 

conspiracy is itself a crime. Even if the crime the people are 

planning is not carried out, the members of the conspiracy are still 

responsible for the distinct crime of conspiracy.

In general terms, a conspiracy is an agreement between two 

or more persons to commit a crime. A conspiracy exists once two 

conditions are met. One, there is an agreement and two, one of 

the members then commits some act to help achieve the goal of 

the conspiracy.

I will now explain each of these elements in greater detail. 

The first element of conspiracy is an agreement. It can be stated 

in words or unspoken but acknowledged, but it must be an 

agreement in the sense that two or more people have come to an 

understanding that they agreed to act together to commit a crime 

or crimes. Their agreement does not have to cover the details of 

how the crime will be committed, nor does it have to call for all of 

them to participate in actually committing the crime. They can 

agree that one of them will do the job.

What is necessary is that the parties do agree, in other 

words, do come to a firm, common understanding that a crime 

will be committed. Although the agreement itself is the essence 

of the conspiracy, a defendant cannot be convicted of conspiracy 

unless he or she or a fellow conspirator does something more, an 

overt act in furtherance of the conspiracy. The overt act is an act 

by any member of the conspiracy that would serve to further the 

goal of the conspiracy.

The overt act can be criminal or non-criminal itself as long 

as it is designed to put the conspiratorial agreement into effect. 

This is to show that the parties have a firm agreement and are not 

just thinking or talking about committing a crime.

The overt act shows that the conspiracy has reached the 

action stage. If a conspirator actually commits or attempts to 
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commit the agreed crime, that, obviously, would be an overt act 

in furtherance of the conspiracy.

But a small act or step that is much more preliminary and a 

lot less significant can also satisfy the overt act requirement.

The Commonwealth may prove a conspiracy by direct 

evidence or by circumstantial evidence. People who conspire 

often do their conspiring secretly and try to cover up afterwards. 

In many conspiracy trials, circumstantial evidence is the best or 

only evidence on the question of whether there was an agreement, 

that is, a common understanding, and whether the conspirators 

shared the intent to promote or facilitate committing the object 

crime. Thus, you may, if you think proper, you may infer that 

there was a conspiracy from the relationship, the conduct, and 

acts of the defendant and his alleged coconspirators and the 

circumstances surrounding their activities. However, the evidence 

of this must support your conclusion beyond a reasonable doubt.

A defendant cannot be convicted because he was present 

with others or even knew that other or others planned or were 

doing – there must be proof of an agreement between the 

defendant and another person or persons to form or continue a 

conspiracy.

To be proved guilty of being a conspirator, the defendant 

must have intended to act jointly with the others charged and 

must have intended that the crimes alleged to be the goal of the 

conspiracy would be committed. 

There is a way that one defendant may be criminally 

responsible for the conduct committed by another person or 

persons. This way may apply even if the defendant in question 

was not present at the time and place when the particular act 

occurred.

This way is for the defendant to be a member of a 

conspiracy. I have just defined for you what a conspiracy is and 

how it is proved. For our purposes now, to reiterate, it is enough 

to understand that a the [sic] conspiracy exists when two or 

[more] people agree to commit a crime or series of crimes and 

one commits an act to further the goal of that agreement.
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As applied in this case, if it is proved beyond a reasonable 

doubt that the defendant was indeed a member of the conspiracy, 

he may be held responsible for the act or acts of another person 

or persons if each of the following elements is proven beyond a 

reasonable doubt:

One, that the other person who committed a specific act was 

also a member of the same conspiracy.

Two, that the crime in question was committed while the 

conspiracy was in existence.

And three, that the crime in question was committed to 

further the goals of the conspiracy.

A specific crime is considered to be in furtherance of the 

goals of the conspiracy, even though such crime was not 

contemplated or approved by the parties, if it was the natural and 

probable consequence of a co[-]conspirator’s conduct.

 

Id. at 1172-1176 (cleaned up). Additionally, the court advised the jurors not 

to “single out any individual rule or instruction and ignore the others. . . . 

Consider all my instructions as a whole and each in light of the other 

instructions when you are deliberating.” Id. at 1161.

Instantly, Appellant takes issue with the abbreviated definition of 

conspiracy given during the second-degree murder instruction. While he 

concedes that “[a] more complete charge on criminal conspiracy [wa]s given 

later” with respect to the charged crimes of criminal conspiracy, he contends 

that because the definitions differed, “the jury could have believed that two 

separate definitions applied – one for proving [second-degree] murder and 

one for proving criminal conspiracy to commit one or more of the other 

offense[s].” Appellant’s brief at 14 (cleaned up). By not including portions of 
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the suggested standard jury instruction for conspiracy as part of its instruction 

for second-degree murder, Appellant posits that the jury could find an 

agreement existed based solely on Appellant’s awareness of his father’s 

criminal actions, and that circumstantial evidence did not need to be proven 

beyond a reasonable doubt. See id. at 15. In other words, Appellant asserts

that by only partially instructing the jury on conspiracy in connection with 

second-degree murder, the court “relieved the Commonwealth of its burden 

to prove beyond a reasonable doubt that Appellant and his father had a shared 

intent to commit the robbery or the burglary.” Id. at 12. Finally, Appellant 

challenges the court’s statement during the second-degree murder instruction

that “[e]ach knows what the other is thinking, they don’t have to talk about 

it.” N.T. Jury Trial Volume VII, 4/9/13, at 1167. 

The PCRA court rejected Appellant’s claim, finding that the trial court

accurately instructed the jury on the relevant law. See PCRA Court Opinion, 

3/22/22, at 21. To wit, “[t]he trial court gave a brief description of conspiracy 

while explaining [second-degree] murder, which was taken from the standard 

jury instruction, and then subsequently a fuller, more detailed description of 

conspiracy which mirrors the standard jury instruction for conspiracy.” Id. 

(footnotes omitted). Moreover, the PCRA court found that “[t]he two 

instructions clearly go hand in hand with one another, as the more detailed 

instruction is meant to expound on the more succinct instruction.” Id. at 22. 

Read as a whole, the court concluded that the instructions were given in a 
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way that “made it abundantly clear to the jury what was necessary to prove 

conspiracy for the crimes charged.” Id. Finding that the underlying claim 

lacked arguable merit, the PCRA court dismissed this ineffectiveness claim.

Upon review, we agree with the analysis of the PCRA court. First, the 

trial court’s second-degree murder instruction is nearly identical to the 

suggested standard jury instruction for second-degree murder under the 

second alternative, killing by a defendant’s co-felon. See Pa. SSJI (Crim), 

§ 15.2502B. In fact, it is this suggested standard jury instruction that 

recommends the complained-of language regarding a co-conspirator knowing 

what the other co-conspirator is thinking without having to first discuss it. 

See id. While the suggested standard jury instructions are not binding and 

the trial courts retain discretion to mold their own instructions, they 

nonetheless act as guides. See Commonwealth v. H.D., 247 A.3d 1062, 

1064 (Pa. 2021). 

We also disagree with Appellant’s position that the trial court lessened 

the Commonwealth’s burden in proving second-degree murder because it did 

not include specific portions of the conspiracy instruction at the same time as 

the second-degree murder instruction. First, the allegedly omitted portions 

were clearly communicated to the jury as part of the conspiracy instruction, 

which also largely tracked the suggested standard jury instruction with respect 

to the crime of conspiracy. See Pa. SSJI (Crim), § 12.903A. Moreover, the 

conspiracy instruction was provided mere minutes after instructing the jury 
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on second-degree murder. See N.T. Jury Trial Volume VII, 4/9/13, at 1162-

68 (second-degree murder instruction), 1174-75 (relevant portion of the 

conspiracy instruction). 

When read as a whole, the court’s instructions, which were in parity with 

the suggested standard jury instructions, clearly conveyed what the 

Commonwealth was required to prove for Appellant to be found guilty of 

second-degree murder and conspiracy, and that all elements must be proven 

beyond a reasonable doubt. See 18 Pa.C.S. §2502(b); 18 Pa.C.S. § 903;

Commonwealth v. Prosdocimo, 578 A.2d 1273, 1276-77 (Pa. 1990) 

(holding that where “the jury charge closely tracked the language of the 

suggested standard jury instructions for the crimes of, inter alia, seconddegree murder, it was “accurate, adequate, and sufficiently clear to inform the 

jury of the law applicable to the case”). Since the record supports the PCRA 

court’s conclusion that the underlying claim lacked merit, the PCRA court 

properly dismissed this claim without a hearing. 

Appellant next argues that the PCRA court erred in denying his claim 

that Attorney Camson provided ineffective assistance of counsel in connection 

with the plea proceedings. See Appellant’s brief at 17. As noted hereinabove, 

this argument is threefold: (1) Attorney Camson misadvised Appellant as to 

what the Commonwealth needed to prove for a jury to convict him of murder; 

(2) Attorney Camson misunderstood the Commonwealth’s continuingconspiracy theory of the case; and (3) Attorney Camson failed to inform 
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Appellant of inculpatory evidence placing him at Ms. Stepko’s home in 

connection with the burglaries. As discussed, this Court previously held that 

if the facts as alleged by Appellant were true, Attorney Camson would arguably 

have rendered ineffective assistance. See McClelland II, supra (nonprecedential decision at 8-10).

Following an evidentiary hearing on these arguments on remand,

Attorney Camson testified regarding his representation of Appellant in 

preparing for trial and negotiating a potential plea. The PCRA court found the 

testimony of Attorney Camson credible. Specifically, the court found “[t]here 

was no credible evidence that Attorney Camson misadvised [Appellant] 

regarding the charges, the evidence against him, or the plea offers. The court 

found that [Appellant] understood the defense strategy and made an informed 

decision to reject the plea offers and subject himself to trial.” PCRA Court 

Opinion, 3/22/22, at 14. Moreover, the court found the testimony from the 

hearing made it clear that Appellant would not accept a plea offer that included 

a guilty plea to homicide and the Commonwealth was likewise unwilling to 

offer any plea that did not include a guilty plea to homicide. Thus, the PCRA 

court rejected Appellant’s testimony that he would have accepted one of the 

plea offers from the Commonwealth absent counsel’s supposedly-deficient 

advice. See id. at 14-15.

Upon review of the certified record, we find that the PCRA court’s

credibility determinations are supported by the record. See Commonwealth 
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v. Robinson, 82 A.3d 998, 1013 (Pa. 2013) ("It is well-settled that a PCRA 

court’s credibility determinations are binding upon an appellate court so long 

as they are supported by the record."). Since the underlying claims lack merit, 

we conclude that the PCRA court did not err in denying the ineffectiveness 

claims pertaining to the plea proceedings.

In Appellant’s third issue, he argues that the PCRA court erred in 

dismissing his claim that Attorney Camson was ineffective for failing to file a 

motion for change of venue based on pretrial publicity and in failing to request

appropriate questioning of prospective jurors. See Appellant’s brief at 36. 

We begin with the pretrial publicity claim. According to Appellant, “[b]ecause

the crime occurred in a rural community, the three alleged perpetrators were 

related, and were neighbors of the elderly victim, and one of the suspects 

[(Appellant)] was a police officer, the incident received wide coverage in the 

newspapers, on television and on the internet.” Appellant’s brief at 36. Based 

on this pretrial publicity, which included his father’s guilty plea to first-degree 

murder and his stepmother’s conviction for conspiracy to commit criminal 

homicide, Appellant contended that counsel rendered ineffective assistance by 

failing to file a motion for a change of venue. Id. at 35-36. 

At the outset, we note that the mere existence of pretrial publicity is not 

per se prejudicial. See Commonwealth v. Tanner, 205 A.3d 388, 393 

(Pa.Super. 2019). Rather, the relevant inquiry is “whether any juror formed 

a fixed opinion of the defendant’s guilt or innocence as a result of the pre-
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trial publicity.” Id. (cleaned up). As a general rule, a trial court has wide 

discretion in assessing a motion for a change of venue and “what prospective 

jurors tell [the trial court] about their ability to be impartial will be a reliable 

guide to whether the publicity is still so fresh in their minds that it has 

removed their ability to be objective.” Id. (cleaned up). In order for pretrial 

publicity to be considered presumptively prejudicial, a defendant must prove

two things: 

[F]irst, either that a) the publicity is sensational, inflammatory, 

and slanted towards conviction rather than factual or objective; 

b) the publicity reveals the accused’s prior criminal record, if any, 

or if it refers to confessions, admissions, or reenactments of the 

crime by the accused; or c) the publicity is derived from police 

and prosecuting officer reports; and, secondly, that the publicity 

must be so extensive, sustained, and pervasive without sufficient 

time between publication and trial for the prejudice to dissipate, 

that the community must be deemed to have been saturated.

Commonwealth v. Rucci, 670 A.2d 1129, 1140–41 (Pa. 1996). 

Appellant argues that the “news stories were inherently prejudicial 

because readers and/or viewers could infer that because two of the alleged 

co-conspirators were guilty, then so must the third be guilty.” Appellant’s 

brief at 44. The PCRA court rejected this argument, concluding that “[t]his 

type of media coverage was not slanted toward [Appellant]’s conviction, but 

was merely coverage of the co-defendants’ cases, and did not in any way 

imply that [Appellant] should also be found guilty of his charges.” PCRA Court 

Opinion, 3/22/22, at 23-24. Indeed, the PCRA court, which also acted as the 

trial court, found that based on Appellant’s arguments it would have rejected 
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any pretrial motion for change of venue. See id. at 23. Thus, the PCRA court 

dismissed this claim of ineffectiveness as the underlying claim lacked merit.

The certified record supports the PCRA court’s conclusions. By way of 

background, during jury selection, twenty-three panel members indicated that 

they had heard about the case. See N.T. Jury Selection, 4/1/13, at 16-17. 

Those individuals were subjected to individual voir dire to determine whether 

they could nonetheless be empaneled as jurors. Of those, three were struck 

for cause based on a pre-formed opinion, two were challenged for cause but 

overruled by the trial court because they stated that they could put aside their 

pre-formed opinion and base a decision solely on the evidence presented, and 

the remainder were unchallenged based on statements that they either had 

no pre-formed opinion or could base their decision solely on the evidence 

presented at trial. See id. at 35-36, 44-48, 51, 53, 59-66, 84-88, 93, 96-

111, 120-21, 125-26, 131-32, 135-36, 138, 148-49, 153. Thus, the record 

bears out that the pretrial publicity was not so pervasive or prejudicial as to 

warrant a change in venue. Since any motion for change of venue would have 

been meritless, counsel will not be deemed ineffective for failing to file it. 

Accordingly, the PCRA court did not err in dismissing this portion of Appellant’s 

ineffectiveness claim. 

The second portion of this issue concerns questioning of potential jurors

regarding a specific matter. For context, during the individual voir dire of

prospective jurors who had raised their hands in response to various 
J-S42005-22

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questions, including exposure to pretrial publicity, one juror, when asked at 

sidebar whether he could set aside what he had heard on the news and make 

a decision solely based on the evidence presented responded, “I think the guy

is guilty as hell to tell you the truth.” Id. at 66. After being admonished by 

the trial court, the juror was removed to the hallway and the following 

exchange occurred at sidebar:

Mr. Camson: I mean, I’m probably going to make a motion 

on that one.

Mr. Lucas: No objection.

The Court: Obviously, we are going to strike him. I’m going 

to ask if anyone heard the comments.

Mr. Camson: Based on the audible gasps, I would say they 

did.

The Court: Some of them did. We will get everyone to 

respond and then we will take that up on the 

next round.

Mr. Camson: Sounds good. 

The Court: I don’t know that it’s enough to dismiss the 

whole panel.

Mr. Camson: I think we will see what they say.

The Court: That’s what I’m thinking. We still have to go 

through this process. What do you think?

Mr. Lucas: I think the question needs to be asked of the 

entire panel, because I heard audible 

responses, too. 

. . . . 
J-S42005-22

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The Court: Ladies and gentleman, we are going to take a 

break so that everyone can have a lunch break. 

. . . 

But before we break, I want to ask you, I need 

to ask you another question as a group.

Obviously, some of you heard, although we try 

to do this at side-bar, some of you heard the 

comment of Juror No. 280, expressing his idea

or his opinion of the case, and even though you 

probably didn’t hear that he didn’t know 

anything but what he heard on the news, I have 

to ask you, as [a] group, how many of you heard 

the comments of Juror No. 280, expressing his 

opinion? Everyone? Almost everyone. 

All right. I think we are going to - - let’s put 

your hands down. Who did not hear what Juror 

280 said?

[Thereafter, six jurors responded that they had not heard the

juror’s statement.]

The Court: . . . [O]bviously, his opinion that he expressed 

is not, in any way, based on any evidence or 

anything material, so what I’ll be asking you is 

whether you can put that aside and make your 

own mind up, based on the evidence that you 

hear in the courtroom. 

Id. at 67-69. During subsequent individual voir dire, the prospective jurors 

who had heard the juror’s unsolicited comment all conveyed that the 

statement did not impact their ability to be fair and impartial.7 See id. at 74-

____________________________________________

7 To the extent Appellant’s version of these events differs, it is belied by the 

record. See Appellant’s brief at 44-45 (setting forth that the juror responded, 

“Hell no, I think he’s as guilty as sin,” that only one potential juror indicated 

that she did not hear the comment, and that the record is silent as to whether 

the other potential jurors were questioned regarding their ability to set aside 

what they heard and render a verdict solely on the evidence presented).
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75, 79-80, 83, 91-92, 96, 105, 108, 111, 120, 124-25, 131, 135, 137, 142-

43, 153, 162, 164, 168, 171, 176, 179, 181-83, 187, 191.

Presently, Appellant contends that counsel rendered ineffective 

assistance by “fail[ing] to question the prospective jury members about 

whether they could disregard one prospective juror’s opinion that [Appellant] 

was guilty[.]” Appellant’s brief at 45. The PCRA court dismissed this claim 

for lack of merit “because each juror who heard the comment at issue was 

questioned about their ability to be impartial[.]” PCRA Court Opinion, 

3/22/22, at 27. The certified record bears out that the trial court did

independently question the jurors who heard the comment as to their ability 

to set aside the overheard comment and instead base their decision, fairly and 

impartially, solely on the evidence presented at trial. As our review of the 

record directly contradicts Appellant’s version of what happened and the claim 

itself lacks merit as the court specifically did what Appellant wanted Attorney 

Camson to ask the court to do, we conclude that the PCRA court did not err in 

dismissing this claim. 

In Appellant’s last issue, he argues that the PCRA court erred in denying 

relief on his claim that Attorney Camson was ineffective for failing to preserve 

Appellant’s sufficiency claims on appeal regarding conspiracy to commit 

burglary, conspiracy to commit robbery, conspiracy to commit second-degree 

murder, and the choate crime of second-degree murder. See Appellant’s brief 

at 46. Appellant contends that his conviction for second-degree murder 
J-S42005-22

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cannot stand because “the Commonwealth failed to prove beyond a 

reasonable doubt that [Appellant] and his father (or stepmother) agreed that 

[Appellant] was to aid his father in the commission of . . . either robbery or a 

burglary[.]” Id. at 49; see also id. at 58 (arguing that Appellant “cannot be 

held liable for the acts of his father” because “the evidence was insufficient to 

prove beyond a reasonable doubt a conspiracy to commit robbery or 

burglary”). Specifically, Appellant claims that the Commonwealth’s 

circumstantial evidence failed to establish either an agreement to commit a 

series of robberies or burglaries, or a shared criminal intent. See id. at 50-

51. Finally, Appellant challenges his conviction for conspiracy to commit 

second-degree murder “[b]ecause the Commonwealth did not present any 

evidence that [Appellant] conspired to kill the victim[.]” Id. at 61. 

We begin with Appellant’s claim that Attorney Camson was ineffective 

for failing to preserve his appellate challenge to the sufficiency of his

conviction for conspiracy to commit burglary. The PCRA court found 

significant direct and circumstantial evidence to prove that Appellant 

conspired to commit burglary with his father and step-mother. See PCRA 

Court Opinion, 3/22/22, at 29-42. As summarized by the PCRA court:

[Appellant] admits that he was aware of the burglaries and the 

source of the cash and vehicle he received. [Appellant] was a 

police officer throughout the time of the burglaries and could have 

reported and stopped the criminal activity, but chose not to. 

Instead, [Appellant] accepted the cash proceeds and even asked 

for additional cash, informing his father and stepmother that he 

was having financial difficulties. In addition, [Appellant] accepted 

money for gambling at the casino, accepted a car which he knew 
J-S42005-22

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had been purchased with proceeds of the burglaries, and would 

occasionally pay other municipal police officers to cover his shifts 

when he did not feel like working. By asking for more money, 

knowing its source, [Appellant] was essentially asking his father 

to commit additional burglaries and certainly promoting the 

criminal conspiracy. Additionally, [Appellant] admitted discussing 

cover stories with his father, so the three co-conspirators could be 

prepared to explain a legitimate source of the cash. [Appellant] 

admittedly lied to the police when asked about his involvement in 

order to minimize his own culpability. By these actions and 

through his position as a police officer, [Appellant] aided and 

abetted his co-conspirators, in addition to receiving the stolen 

funds.

. . . . 

. . . [Appellant] admitted lying to protect his father and admitted 

using his position as a police officer to act as a “lookout” for any 

reports or information regarding the burglaries.

Id. at 35, 37. Additionally, a neighbor identified an individual leaving Ms. 

Stepko’s home following one of the burglaries as matching Appellant’s 

description and walking towards Appellant’s house, and an individual matching 

Appellant’s description deposited a large sum of cash into Mrs. McClelland’s

bank account in 2009. See N.T. Jury Trial Volume III, 4/3/13, at 320-23; 

N.T. Jury Trial Volume IV, 4/5/13, at 751-53. Based on the foregoing, the 

PCRA court dismissed this claim as without merit. 

Upon review, the certified record supports the PCRA court’s conclusions 

that there was ample evidence to support Appellant’s conviction for conspiracy 

to commit burglary. As the underlying claim lacked merit, counsel could not 

be deemed ineffective for failing to preserve a sufficiency issue on appeal with 

regard to conspiracy to commit burglary. See Commonwealth v. Busanet, 
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54 A.3d 35, 49 (Pa. 2012) (finding appellate counsel was not ineffective for 

failing to preserve a meritless issue on appeal). Furthermore, Appellant’s 

challenge to his second-degree murder conviction is premised only on the 

Commonwealth’s inability to prove conspiracy to commit burglary or robbery. 

Thus, the PCRA court concomitantly did not err in dismissing Appellant’s claim 

that counsel was ineffective for failing to preserve a challenge to the 

sufficiency of the evidence to sustain his second-degree murder conviction as 

the evidence was sufficient to support Appellant’s conspiracy to commit 

burglary conviction.

Before turning to Appellant’s remaining sufficiency challenges, we sua 

sponte address the legality of his judgment of sentence for multiple conspiracy 

counts. See Commonwealth v. Barnes, 871 A.2d 812, 821 n.6 (Pa.Super. 

2005) (noting this Court may sua sponte address the propriety of multiple 

conspiracy convictions where there is a single conspiracy because a violation 

of 18 Pa.C.S. § 903(c) results in an illegal sentence). In doing so, we are 

guided by this Court’s seminal decision in Commonwealth v. Rivera, 238 

A.3d 482 (Pa.Super. 2020). 

In Rivera, a victim was shot and killed during a home invasion robbery 

conducted by Rivera and three of his compatriots. The three compatriots 

testified at Rivera’s jury trial, detailing their plan to rob the victim and the 

unfolding of events during the robbery that led to the victim’s death. The jury 

convicted Rivera of second-degree murder, robbery, burglary, and conspiracy 
J-S42005-22

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to commit the crimes of second-degree murder, robbery, and burglary. On 

appeal to this Court, Rivera challenged the trial court’s preclusion of a 

videotaped interview, the sufficiency and weight of the evidence, the 

discretionary aspects of his sentence, and the constitutionality of seconddegree murder. Upon review, Rivera waived his sufficiency and weight claims

and failed to preserve his challenge to the discretionary aspects of his 

sentence. His remaining issues garnered no relief. However, this Court sua 

sponte addressed the legality of Rivera’s sentences for multiple conspiracy 

counts and granted relief on that basis. See id. at 503-04. For the reasons 

discussed infra, we reach the same conclusion here.

The conspiracy statute provides that “[i]f a person conspires to commit 

a number of crimes, he is guilty of only one conspiracy so long as such 

multiple crimes are the object of the same agreement or continuous 

conspiratorial relationship.” 18 Pa.C.S. § 903(c). Thus, to be convicted of 

multiple counts of conspiracy, “there must be separate agreements, or 

separate conspiratorial relationships, to support each conviction.” Rivera, 

supra at 503 (cleaned up). In analyzing the totality of the circumstances to 

determine whether there exists a single or multiple conspiracies, we consider 

several factors:

the number of overt acts in common; the overlap of personnel; 

the time period during which the alleged acts took place; the 

similarity in methods of operation; the locations in which the 

alleged acts took place; the extent to which the 

purported conspiracies share a common objective; and, the 
J-S42005-22

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degree to which interdependence is needed for the overall 

operation to succeed.

Id. (cleaned up).

In Rivera, we discussed the application of these factors in two prior 

cases, Commonwealth v. Davis, 704 A.2d 650 (Pa.Super. 1997), and 

Barnes, supra. In Davis, the defendant, who was sentenced separately for 

conspiracy to commit robbery and conspiracy to commit third-degree murder,

argued that he could not be “punished twice” because “he and his cohorts 

entered into only one agreement[.]” Davis, supra at 654. This Court agreed, 

applying the above factors as follows:

The agreement among the participants in this case to use a 

baseball bat on their victim encompassed both their plan to harm 

him while taking his money (robbery) and their plan to harm him 

with such disregard to the value of human life as to constitute 

malice, which resulted in death (third-degree murder). The same 

acts were done to accomplish both results, the same actors took 

part, the acts occurred simultaneously at the same location, the 

same method was employed and the same objective was pursued.

We find that these facts constitute the very circumstances 

envisioned by § 903(c). The “essential feature of the existing 

conspiracy was a common plan or scheme to achieve a common, 

single, comprehensive goal.” Commonwealth v. Troop, 391 

Pa.Super. 613, 571 A.2d 1084, 1090, appeal denied, 526 Pa. 634, 

584 A.2d 317 (1990).2

______

2 We observe that the facts of this case are unlike those 

in Troop, supra. There, a panel of this court found that the 

conspirators planned three separate robberies 

independently of one another, each of which constituted a 

separate criminal episode.

We conclude therefore that appellant cannot be punished 

separately for each conspiracy; multiple sentences under these 

circumstances are explicitly precluded by statute. 18 Pa.C.S.A. 

§ 903(c).
J-S42005-22

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Id. at 654–55.

In Barnes, the defendant was convicted of, inter alia, conspiracy to 

commit the crimes of third-degree murder, robbery, and delivery of a 

controlled substance. On appeal, Barnes “argued he was convicted under a 

multiple conspiracy theory but, for various reasons, the evidence was 

insufficient to support his convictions for conspiracy to commit robbery and 

conspiracy to commit third-degree murder.” Barnes, supra at 821 n.6. This 

Court granted relief pursuant to 18 Pa.C.S. § 903(c) because we sua sponte

found that his “sentence was illegal because he can, by statute, be convicted 

of only one count of conspiracy under the facts of this case.” Id. In so 

holding,

[w]e note[d] that even if evidence suggested [Barnes] and his codefendants agreed to commit several offenses, if a person 

conspires to commit a number of crimes, he is guilty of only one 

conspiracy so long as such multiple crimes are the object of the 

same agreement or continuous conspiratorial relationship.

Accordingly, for [Barnes] to be convicted of three counts of 

conspiracy, there must be separate agreements, or separate 

conspiratorial relationships, to support each conviction.

Id. at 820 (cleaned up). 

In Rivera, this Court found that the defendant’s conduct was the result 

of a “continuous conspiratorial relationship.” Rivera, supra at 504 (internal 

quotation marks omitted). Specifically, 

The agreement among [Rivera] and his co-defendants to rob 

Victim at gunpoint encompassed their plan to break into Victim’s 

home (burglary) and take his money and drugs at gunpoint 
J-S42005-22

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(robbery). The homicide (second-degree murder) that occurred 

during the robbery was in furtherance of the single conspiratorial 

goal: to rob Victim. As such, under subsection 903(c), [Rivera] 

only could be found guilty of conspiracy to commit robbery, “that 

crime being the underlying foundation of the agreement upon 

which the conspiracy charges were based.” Barnes, 871 A.2d at 

821. Accordingly, we vacate [Rivera’s] conspiracy to commit 

burglary and conspiracy to commit second-degree murder 

convictions.

Id.

With the foregoing in mind, we apply the above factors to the case at 

hand. Upon review, we conclude that Appellant, his father, and his 

stepmother did not engage in multiple conspiracies. As demonstrated by the 

criminal information, Appellant was engaged in a single, continuing 

conspiratorial relationship with his father and step-mother. See Information, 

10/3/11 (charging Appellant for conduct occurring between August 4, 2009 

and July 18, 2011, instead of each individual instance of criminal conduct). 

To that end, the evidence presented at trial established an ongoing agreement 

among the parties to burglarize Ms. Stepko’s home for as much money as they 

could seize. Specifically, the agreement to take money from Ms. Stepko’s

home encompassed their plan to break into her home to steal money 

(burglary), distribute that money amongst themselves (theft by unlawful 

taking), and use the proceeds for their own benefit (dealing in proceeds of 

unlawful activity). The force against Ms. Stepko (robbery) and homicide 

(second-degree murder) that occurred during the final burglary were in 

furtherance of the single conspiratorial goal: to take money from Ms. Stepko’s 
J-S42005-22

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home without being caught. As such, under § 903(c) and the foregoing case 

law, Appellant could only be found guilty of conspiracy to commit burglary, 

“that crime being the underlying foundation of the agreement upon which the 

conspiracy charges were based.” Barnes, supra at 821. 

Based on the foregoing, we vacate Appellant’s convictions and 

sentences for conspiracy to commit second-degree murder, conspiracy to 

commit robbery, conspiracy to commit dealing in proceeds of unlawful activity, 

and conspiracy to commit theft by unlawful taking. We observe that Appellant 

was sentenced to a consecutive term of ten to forty years of incarceration for 

conspiracy to commit second-degree murder and that all of the other 

conspiracy convictions merged into that for sentencing purposes. Since we 

are setting aside the sentence for conspiracy to commit second-degree 

murder, we remand solely for resentencing on Appellant’s conviction for 

conspiracy to commit burglary.8

Since we vacate these conspiracy convictions, we do not address 

whether the PCRA court erred in dismissing Appellant’s claim that counsel was 

ineffective for failing to preserve a sufficiency challenge to those convictions 

____________________________________________

8 Practically speaking, Appellant cannot serve a sentence of incarceration 

following the expiration of his LWOP term. Thus, our holding, which vacates 

the consecutive conspiracy sentence, does not upset Appellant’s overall 

sentencing scheme, which is subsumed by his LWOP sentence. See 

Commonwealth v. Rivera, 238 A.3d 482, 504 (Pa.Super. 2020). 

Accordingly, we decline to vacate the entirety of Appellant’s judgment of 

sentence and instead remand only for resentencing regarding Appellant’s 

conviction for conspiracy to commit burglary.
J-S42005-22

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on appeal. In all other regards, we affirm the order of the PCRA court and the 

remainder of Appellant’s judgment of sentence remains intact.

Order affirmed. Judgment of sentence for conspiracy charges vacated. 

Convictions for conspiracy to commit second-degree murder, conspiracy to 

commit robbery, conspiracy to commit dealing in proceeds of unlawful activity, 

and conspiracy to commit theft by unlawful taking vacated. Case remanded 

for resentencing on the conspiracy to commit burglary conviction. Jurisdiction 

relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/30/2023