J-S14037-19

____________________________________

* Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

AQUIL JOHNSON 

Appellant

:

:

:

:

:

:

:

:

:

 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 879 EDA 2018

Appeal from the Judgment of Sentence March 15, 2013

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

No(s): CP-51-CR-0001587-2009

BEFORE: LAZARUS, J., NICHOLS, J., and PELLEGRINI*, J.

MEMORANDUM BY PELLEGRINI, J.: FILED MAY 29, 2019

Aquil Johnson (Johnson) appeals pro se from the judgment of sentence 

of 30 to 60 years’ imprisonment imposed by the Court of Common Pleas of 

Philadelphia County (trial court) after a jury convicted him of Attempted 

Murder, Aggravated Assault and Conspiracy. We affirm the convictions but 

vacate the judgment of sentence and remand for resentencing.

I.

On September 25, 2008, Johnson and Matthew Smith (Smith) went to 

the home of Michael Wilson (Wilson). Wilson let the pair inside. While all 

three were walking to the living room, Johnson suddenly moved away from 

Wilson. Smith then shot Wilson in the head. Johnson and Smith grabbed a 

bag of marijuana off a table and fled out the backdoor. Wilson survived the

attack and called 911. The police arrested Johnson that same day but did not 
J-S14037-19

- 2 -

apprehend Smith until over a year-and-a-half later. In the interim, Johnson 

proceeded to a September 2009 jury trial that ended in a hung jury.

After Smith was arrested, the trial court severed Johnson’s and Smith’s 

cases and ordered that Smith’s trial be held before Johnson’s retrial. In May 

2011, a jury acquitted Smith of all charges. Johnson meanwhile was not 

retried until January 2013. This time, a jury convicted him of Attempted 

Murder (with serious bodily injury), 18 Pa.C.S. § 901(a), Aggravated Assault, 

18 Pa.C.S. § 2702(a), and Conspiracy, 18 Pa.C.S. § 903(a)(1).1 Johnson was 

sentenced to serve an aggregate term of 30 to 60 years’ imprisonment. After 

the denial of a post-sentence motion for modification, Johnson filed a direct 

appeal but it was dismissed when appellate counsel did not file a brief.

In July 2015, Johnson filed a pro se petition for relief under the Post 

Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546, requesting, among 

other relief, reinstatement of his direct appeal rights nunc pro tunc. The PCRA 

court appointed Johnson counsel who filed an amended petition. In March 

2018, the PCRA court reinstated Johnson’s appeal rights. Johnson now raises 

various trial and sentencing issues for our review. We have reordered the

issues for ease of discussion.

____________________________________________

1 As discussed in more detail in his sentencing claims, the jury convicted 

Johnson of both Conspiracy to Commit Murder and Conspiracy to Commit 

Aggravated Assault.
J-S14037-19

- 3 -

II.

Johnson contends that he was denied counsel from December 17, 2012, 

to January 8, 2013, and that this was a critical stage in his defense for which 

the deprivation of counsel cannot be harmless and requires a new trial. The 

trial court found that Johnson requested to proceed pro se and voluntarily 

waived his right to counsel at a Grazier hearing.

2

 The Commonwealth does 

not adopt that reasoning and instead maintains that Johnson was not denied 

counsel during a critical stage. We agree with the Commonwealth.

3

A.

We first address the trial court’s analysis, which would obviate further 

discussion if Johnson requested to represent himself and he knowingly, 

intelligently and voluntarily waived his right to counsel. During a May 2011 

pretrial hearing, Johnson expressed dissatisfaction with his appointed counsel

because of a lack of communication and counsel not filing certain motions that 

he wanted filed. Based on this, Johnson requested to proceed pro se. The 

trial court denied Johnson’s pro se request and continued his retrial to 2012. 

Johnson’s case was subsequently relisted multiple times. As far as the 

____________________________________________

2 Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998) (setting forth 

procedure for courts to determine on record that defendant wishing to proceed 

pro se is knowingly, intelligently and voluntarily waiving right to counsel).

3 This claim involves a question of law for which our standard of review is de 

novo and our scope of review is plenary. See Commonwealth v. Zrncic, 

131 A.3d 1008, 1011 (Pa. Super. 2016).
J-S14037-19

- 4 -

certified record is concerned, Johnson never renewed his pro se request after 

the May 2011 hearing.

Despite the lack of a motion requesting to proceed pro se, the trial court 

held a Grazier hearing on December 17, 2012. The transcript indicates that 

Johnson was confused as to the reason for the hearing. Johnson expressed 

confusion as to why he was in court and explicitly stated at the beginning of 

the proceeding, “I’m telling you I never requested to represent myself in 

court.” N.T., 12/17/12, at 3. The trial court correctly informed him that he

was not entitled to counsel of his choice and said Johnson would need to either 

proceed with current counsel or represent himself. For unknown reasons, the 

court then proceeded to conduct a Grazier colloquy. The hearing concluded 

with the court ordering Johnson to represent himself with his appointed

counsel serving as stand-by counsel. On January 8, 2013, Johnson stated

that he did not want to represent himself and his appointed counsel resumed

as counsel.

From our review of the transcript, Johnson did not intend to represent 

himself but instead sought the appointment of a new attorney. The trial court 

properly informed Johnson that he was not entitled to counsel of his choice 

but that does not warrant conducting a Grazier hearing. Unless and until 

Johnson requested to proceed pro se, the proper course was to simply inform 

him that his appointed counsel would remain counsel of record.
J-S14037-19

- 5 -

B.

However, the mere fact that Johnson was erroneously denied counsel 

for that time period does not end the matter.4 We must still determine 

whether the three-week period leading up to the retrial was a critical stage:

As a general rule, a conviction will not be vacated for a violation 

of the Sixth Amendment right to counsel in the absence of a 

showing that the reliability of the defendant’s trial was 

undermined. However, the United States Supreme Court has 

identified several circumstances in which prejudice resulting from 

a violation of the Sixth Amendment right to counsel is presumed. 

One of these presumptively prejudicial circumstances arises when 

the accused has suffered a complete denial of counsel at a critical

stage of trial.

____________________________________________

4 Elements of Johnson’s claim implicate trial counsel ineffectiveness, raising 

the question of whether this claim may be heard on direct review. Because 

Johnson is claiming that the trial court erroneously stripped him of counsel 

during the three-week period, that discrete claim is properly before us. 

Notwithstanding, we note that aspects of Johnson’s underlying claim raise

allegations of trial counsel ineffectiveness. See Johnson’s Brief at 34-35 

(averring that the three-week period was a critical stage because counsel 

would have interviewed and subpoenaed witnesses, reviewed evidence, 

developed trial strategy, and prepared witnesses to testify).

As to those claims, we note that counsel could have requested a postponement 

if counsel was unprepared to proceed. Johnson’s ultimate claim appears to 

simply be that counsel was unprepared for trial due to Johnson representing 

himself and he was prejudiced by that failure, not by being deprived of 

counsel for the three-week period. Indeed, Johnson cites United States v. 

Cronic, 466 U.S. 648 (1984), which sets forth a presumptive prejudice 

doctrine where counsel has been denied entirely or during a critical stage. We 

note that Cronic rejected a variation of the theory alleged by Johnson here. 

Woods v. Donald, ––– U.S. –––, 135 S.Ct. 1372, 1377, 191 L.Ed.2d 464 

(2015) (per curiam) (“In Cronic itself, we rejected the defendant’s claim that 

his counsel’s lack of experience and short time for preparation warranted a 

presumption of prejudice[.]”). In any event, Johnson is free to pursue claims 

of ineffectiveness regarding trial counsel’s performance on collateral review. 

We here address only the three-week period.
J-S14037-19

- 6 -

Commonwealth v. Padilla, 80 A.3d 1238, 1253 (Pa. 2013) (internal 

citations and quotations omitted). A critical stage “is one in which the 

accused’s substantive rights may be affected,” Commonwealth v. D’Amato, 

856 A.2d 806, 821 (Pa. 2004), and is “characterized by an opportunity for the 

exercise of judicial discretion or when certain legal rights may be lost if not 

exercised at that stage.” Commonwealth v. Johnson, 828 A.2d 1009, 1014 

(Pa. 2003) (citations omitted). For purposes of the Sixth Amendment, the 

United States Supreme Court has observed that critical stages have been 

defined “as proceedings between an individual and agents of the State 

(whether formal or informal, in court or out) that amount to trial-like 

confrontation[.]” Rothgery v. Gillespie County, 554 U.S. 191, 212 n.16 

(2008) (internal quotations and citations omitted).

Johnson fails to identify any critical stage at which he was denied 

counsel. There were no proceedings between the December 17, 2012 hearing 

and the January 8, 2013 start of jury selection. Not only were there no 

confrontational proceedings, nothing at all occurred with regard to his trial 

during the three-week period and appointed counsel/stand-by counsel 

represented him at trial.

III.

In his next claim, Johnson argues that the Commonwealth knowingly 

presented false testimony in violation of Napue v. Illinois, 360 U.S. 264 

(1959). At the retrial, Johnson testified that he was on his way to the hospital 
J-S14037-19

- 7 -

when he was arrested and that the police took him there. On rebuttal, the 

Commonwealth recalled Detective Matthew Farley, the lead investigator, to 

testify that Johnson was never taken to the hospital. Relying on medical 

records obtained after trial, Johnson maintains this was false testimony

because the records show that the police took him to the hospital on 

September 28, 2008.

The Commonwealth counters that this claim is waived because Johnson 

failed to make a contemporaneous objection at trial. Pennsylvania Rule of 

Evidence 103(a) states that a party may claim error in the admission of 

evidence only if the party, on the record, “makes a timely objection.” Pa.R.E. 

103(a). This Court has long held that “[f]ailure to raise a contemporaneous 

objection to the evidence at trial waives that claim on appeal.” 

Commonwealth v. Thoeun Tha, 64 A.3d 704, 713 (Pa. Super. 2013) 

(citation omitted). Johnson argues that he did not waive this claim because 

the PCRA court did not inform him of his right to file post-sentence motions, 

but a post-sentence motion cannot retroactively preserve an already-waived 

claim. See Pa.R.A.P. 302. Accordingly, the claim is waived.

Even if preserved, Detective Farley’s testimony was not false. He 

testified only that Johnson was not taken to the hospital on the day he was 

arrested. Based on Johnson’s own argument, Farley’s statement was factually 

correct because Johnson was not taken to the hospital until three days after 

he was arrested.
J-S14037-19

- 8 -

IV.

Next, Johnson argues that the trial court judge should have recused 

himself due to his bias as demonstrated by his comments during trial and 

sentencing. The Commonwealth argues the claim is waived because it was

not raised at trial or in a timely post-sentence motion.

Generally, “[a] party seeking recusal or disqualification [is required] to 

raise the objection at the earliest possible moment, or that party will suffer 

the consequences of being time barred.” Lomas v. Kravitz, 130 A.3d 107, 

120 (Pa. Super. 2015) (en banc) (quotation omitted). However, “there may 

be circumstances in which objections have a deleterious effect on the jury or 

even on the judge whose behavior is extremely unprofessional.” Harman ex 

rel. Harman v. Borah, 756 A.2d 1116, 1125 (Pa. 2000). But even in these

instances, the party must still raise recusal in a post-trial motion. See id. at 

1126 (“[T]he general rule remains that a party waives an issue concerning 

perceived trial court error, if the party fails both to preserve the issue with a 

timely and specific objection at trial and present it in post-trial motions.”). 

Because Johnson never raised this claim at trial or in a post-trial motion, this 

claim is waived.5

____________________________________________

5 Johnson argues this claim is not waived because the PCRA court did not 

inform him of his right to file post-sentence motions nunc pro tunc. However, 

when a PCRA court reinstates direct appeal rights nunc pro tunc, the petitioner

is not automatically entitled to reinstatement of his post-sentence rights nunc 

pro tunc. See Commonwealth v. Liston, 977 A.2d 1089, 1090 (Pa. 2009). 
J-S14037-19

- 9 -

V.

Johnson also contends that Wilson’s testimony was irreparably tainted

for two reasons. First, after Johnson’s first trial, the Philadelphia District 

Attorney’s Office learned that the assistant district attorney at the first trial 

had a romantic relationship with Wilson. This resulted in the Office of the 

Attorney General assuming the prosecution. Second, Wilson admitted at 

Smith’s 2011 trial that in preparation of testifying, he reviewed his notes of

testimony from Johnson’s 2009 trial.

The Commonwealth argues that this claim is waived because it was not 

raised by Johnson before or at his retrial. Both of the bases for the alleged 

taint would have been known to Johnson before his retrial and could have 

been raised with the trial court. By failing to do this, the issue is waived. See

Pa.R.A.P. 302(a) (“Issues not raised in the lower court are waived and cannot 

be raised for the first time on appeal.”).6

____________________________________________

As a result, we are limited to the post-sentence motion that was actually filed 

which did not raise the issue of recusal. We note, though, that Johnson 

addressed waiver in his reply brief, and the Commonwealth applied for and 

was granted permission to file a surreply brief addressing waiver. Johnson 

has applied for permission to file a response to that surreply brief. We find 

this issue requires no further briefing and deny Johnson’s application.

6 As with his false testimony claim, a post-sentence motion would not have 

retroactively preserved an already-waived issue.
J-S14037-19

- 10 -

VI.

Johnson next alleges that the Commonwealth violated Brady v. 

Maryland, 373 U.S. 83 (1963), by failing to turn over (1) a report about 

Wilson’s relationship with the assistant district attorney and (2) any police 

reports about him being treated at the hospital on September 28, 2008. The 

Commonwealth responds that these claims are waived for failure to be raised 

in the trial court.

Brady claims are subject to waiver and will be so deemed if they could 

have been raised in an earlier proceeding. See Commonwealth v. Pruitt, 

162 A3d 394, 404 (Pa. 2017) (finding Brady claims waived when information 

was known or should have been known to the defendant and could have been 

raised at trial). Here, Johnson requested and received the transcripts of 

Smith’s 2011 trial when the relationship was revealed before his retrial. 

Johnson knew about the relationship and was free to seek discovery about it. 

Likewise, as to his own September 28, 2008 hospital trip, he is speculating 

that there were police reports concerning his trip. But there is no indication 

that any such reports exist, not to mention the fact that his counsel would 

have been free to obtain the hospital records and present them at trial. As a 

result, his Brady claims are waived.

VII.

Johnson also contends that Smith’s 2011 acquittal estopped the 

Commonwealth from trying him as either an accomplice or co-conspirator of 
J-S14037-19

- 11 -

Smith. This is essentially a nonmutual collateral estoppel claim meaning 

Johnson seeks to rely on a prior proceeding in which he was not a party. 

However, Pennsylvania courts have routinely rejected such claims when raised 

in a criminal context.

7

First, as to accomplice liability, Section 306(g) of the Pennsylvania 

Crimes Code states:

(g) Prosecution of accomplice only.--An accomplice may be 

convicted on proof of the commission of the offense and of his 

complicity therein, though the person claimed to have committed 

the offense ... has been acquitted.

18 Pa.C.S. § 306(g). Relying on Section 306(g), our Supreme Court held in

Commonwealth v. Brown, 375 A.2d 331 (Pa. 1977), that the acquittal of

one criminal defendant will not bar an issue from being litigated again in the

prosecution of another defendant in a separate trial, even if it involves the

same criminal episode. See id. at 334-35 (holding trial court erred in

dismissing homicide charge against accomplice based on the acquittal of the

principal for the same killing). This Court has cited to Brown in rejecting

nonmutual collateral estoppel claims in criminal cases, emphasizing that

collateral estoppel would require issue preclusion in a criminal case only when

the defendants are the same as the parties to the prior adjudication. See,

____________________________________________

7 Because the claim implicates a question of law, our standard or review is de 

novo. See Commonwealth v. Vargas, 947 A.2d 777, 780 (Pa. Super. 

2008).
J-S14037-19

- 12 -

e.g., Commonwealth v. Rende, 485 A.2d 9 (Pa. Super. 1984) (holding

Commonwealth was not collaterally estopped from prosecuting defendant on

murder charge when accomplice was acquitted at a prior trial).

Recognizing that Brown is still good law, Johnson attempts to

distinguish it by noting that he was tried once before Smith’s 2011 acquittal. 

Although Johnson is correct he was subject to jeopardy before, collateral

estoppel still does not apply in a criminal case unless there is “both mutuality

of parties and that the previous acquittal has put the defendant in jeopardy.” 

Id. at 11. Johnson was not a party to Smith’s 2011 jury trial, the prior

adjudication that he seeks to rely. Because he was not in jeopardy in that

proceeding, his claim of collateral estoppel as to accomplice liability warrants

no relief.

The same holds true for co-conspirator liability. In Commonwealth v. 

Byrd, 417 A.2d 173 (Pa. 1980), the defendant was convicted of Conspiracy 

while his alleged co-conspirator was acquitted at a later trial. On appeal, the 

defendant argued that this acquittal entitled him to relief. Although the 

defendant’s claim was not premised on collateral estoppel, the Byrd Court still 

found Brown instructive and held that the subsequent acquittal of the 

defendant’s alleged co-conspirator did not prevent him from being convicted 

of Conspiracy. See id. at 178-79. We considered a similar challenge in 

Commonwealth v. Phillips, 601 A.2d 816 (Pa. Super. 1992), affirmed, 633 

A.2d 604 (Pa. 1994), also involving the defendant being tried after the alleged 
J-S14037-19

- 13 -

co-conspirator was acquitted at a jury trial. Relying on Byrd, this Court held 

that “the prior acquittal of a sole co-conspirator in a separate trial does not 

preclude finding the subsequently tried co-conspirator guilty of conspiracy.” 

Id. at 820.

Like Brown for accomplice liability, Byrd and Phillips remain good law 

for co-conspirator liability, and Johnson cites to no authority that would 

preclude their application. Thus, we hold that the Commonwealth was not 

collaterally estopped by Smith’s 2011 acquittal from trying Johnson as either 

an accomplice or co-conspirator at his 2013 retrial.

VIII.

For his final claim of error that occurred at trial, Johnson raises a 

sufficiency claim contending that Wilson’s testimony was so inconsistent and 

contradictory so as to render the jury’s verdict the product of conjecture. We 

agree with the Commonwealth that this is an unpreserved weight-of-theevidence claim. To persevere such a claim, it must be raised with the trial 

court in a motion for new trial: (1) orally, on the record, at any time before 

sentencing; (2) by written motion at any time before sentencing; or (3) in a 

post-sentence motion. Pa.R.Crim.P. 607(A). Johnson never raised a 

challenge to the weight of the evidence either orally or in writing at or before 

sentencing. In addition, he did not file a timely post-sentence motion to raise 

the issue. The claim is, therefore, waived.
J-S14037-19

- 14 -

Even if preserved, no relief is due. Johnson focuses on Wilson’s prior 

statements not mentioning that he took a bag of marijuana but later stated 

that Johnson and Smith took a bag of marijuana as they ran out of the home. 

He argues that this was the most important issue in the case because the 

Commonwealth’s theory was that he and Smith went to Wilson’s home to rob 

him.8 To prevail on a challenge to the weight of the evidence, “the evidence 

must be so tenuous, vague and uncertain that the verdict shocks the

conscience of the court.” Commonwealth v. Rodriguez, 174 A.3d 1130,

1140 (Pa. Super. 2017). Wilson testified that Johnson moved out of his way 

so that Smith could then shoot him. Given that the theft of the marijuana was 

not an element of any of the offenses, Johnson’s prior inconsistent statements 

about the theft would not be significant enough to render the jury’s verdict a 

mere guess.

IX.

Lastly, Johnson presents three sentencing claims for our review. As 

noted, Johnson was sentenced to an aggregate 30 to 60 years’ imprisonment. 

For Attempted Murder, the court sentenced him to 20 to 40 years’ 

imprisonment based on a jury finding of serious bodily injury.9 The trial court 

____________________________________________

8 Johnson also claims Wilson changed his testimony about other essential 

issues about the case but does not state what those inconsistencies were.

9

In its Pa.R.A.P. 1925(a) opinion, the trial court states that Johnson’s 

sentence for Attempted Murder was enhanced by using the deadly weapon 
J-S14037-19

- 15 -

imposed a consecutive sentence of 10 to 20 years’ imprisonment for

Conspiracy. Finally, the court determined that Aggravated Assault merged 

with Attempted Murder.

Johnson alleges multiple sentencing errors. We first address Johnson’s 

claim that his sentence is illegal under 18 Pa.C.S. § 906, which states that

“[a] person may not be convicted of more than one of the inchoate crimes of 

criminal attempt, criminal solicitation or criminal conspiracy for conduct 

designed to commit or to culminate in the commission of the same crime.”10

The confusion in this case centers on the Commonwealth’s decision to 

list the goal of the criminal conspiracy as “assault/murder.” While the 

Conspiracy charge appears on the information as one count, the trial judge 

submitted the offense to the jury as comprising two distinct offenses: (1) 

Conspiracy to Commit Murder; and/or (2) the lesser-included Conspiracy to 

Commit Aggravated Assault. The trial court imposed consecutive sentences 

____________________________________________

enhancement. See 204 Pa. Code. § 303.10(a). But the deadly weapon 

enhancement does not enhance the statutory maximum penalty; it enhances 

the guideline sentence recommendation.

10 This Court has interpreted “convicted” to mean entry of a judgment of 

sentence rather than a finding of guilty by a jury. See Commonwealth v. 

Grekis, 601 A.2d 1284, 1295 (Pa. Super. 1992). Thus, 18 Pa.C.S. § 906 does 

not prohibit a jury from convicting a defendant of multiple inchoate crimes 

designed to culminate in the same crime.
J-S14037-19

- 16 -

for Attempted Murder and Conspiracy to Commit Aggravated Assault, 

reasoning that the two crimes are separate.

11

The fact that the Commonwealth alleged two different theories presents 

semantical difficulties as illustrated by the fact that the court instructed the 

jury that the Conspiracy count was a “charge of conspiracy to commit either 

murder or aggravated assault.” N.T., 1/11/13, at 68 (emphasis added). But 

in the jury verdict sheet, the trial court split the Conspiracy charge into two 

offenses, asking the jurors to determine Johnson’s guilt as to Conspiracy to 

Commit Murder “and/or” Conspiracy to Commit Aggravated Assault. See id. 

at 85.12

Relying on Commonwealth v. Kelly, 78 A.3d 1136 (Pa. Super. 2013), 

the Commonwealth argues that the trial court properly imposed a sentence

for Conspiracy to Commit Aggravated Assault because it is a distinct crime 

from Murder. In Kelly, the Commonwealth charged Kelly with, among other 

offenses, Attempted Murder and Conspiracy. As here, the Conspiracy charge 

was set forth in the information as encompassing either a conspiracy to 

commit murder and/or a conspiracy to commit aggravated assault. The jury 

____________________________________________

11 Because Johnson’s claim pertains to the legality of sentence, our standard 

of review is de novo and scope of review is plenary. See Commonwealth v. 

Melvin, 172 A.3d 14, 19 (Pa. Super. 2017).

12 Although not included in the certified record, we are able to determine the 

contents of the jury verdict sheet based on the verdict read in court.
J-S14037-19

- 17 -

was not given any special interrogatory and convicted Kelly of Attempted 

Murder and Conspiracy. We sua sponte elected to address the legality of the 

sentence. Significantly, we stated that “[s]ince aggravated assault and 

murder are not the same crime, 18 Pa.C.S. § 906 does not automatically apply 

to the conspiracy to commit aggravated assault and attempted murder 

convictions.” Id. at 1145. We then examined the general verdict and 

concluded that Kelly must be given the benefit of the jury’s ambiguous verdict 

as to Conspiracy:

In Commonwealth v. Riley, 811 A.2d 610 (Pa. Super. 2002), 

this Court held that where the jury renders a general verdict and 

there is an absence of clear evidence of the jury’s intent, a 

defendant can only be sentenced for conspiracy to commit the less 

serious underlying offense. In this case, that would mean the 

court could only have sentenced the defendant for conspiracy to 

commit aggravated assault. The sentencing papers reflect that 

the concurrent sentence was imposed for that crime. However, 

the Riley Court also concluded that the defendant must be given 

the benefit of the jury’s ambiguous verdict. Instantly, the benefit 

would derive from concluding that the conspiracy verdict was for 

conspiracy to commit murder and not conspiracy to commit 

aggravated assault, since the former charge would automatically 

merge with attempted murder. Phrased differently, construing 

the verdict as conspiracy to commit aggravated assault could have 

allowed the court to sentence Appellant consecutively for that 

crime and attempted murder, see Commonwealth v. Jacobs,

39 A.3d 977 (Pa. 2012)], though it elected not to follow that path.

While the concurrent nature of the sentences herein renders any

vacatur academic, our Supreme Court in Jacobs, supra,

nevertheless addressed whether it was proper to sentence a 

defendant concurrently for attempted escape and conspiracy to 

commit escape based on an alleged ambiguous verdict. 

Ultimately, the Jacobs Court concluded that the sentences were 

lawful because the jury verdict was not ambiguous and the two 

inchoate crimes were not designed to culminate in the same 

escape crime. In contrast, the evidence in this case is not 
J-S14037-19

- 18 -

clear as to the jury’s intent. Therefore, we agree with the trial 

court that under the precise facts herein the sentence for 

conspiracy and attempted murder should have merged, albeit on 

different grounds. Accordingly, we vacate Appellant’s conspiracy 

sentence.

Id. at 1145–46 (footnote omitted).

There is no dispute that “§ 906 does not automatically apply to the 

conspiracy to commit aggravated assault and attempted murder convictions,” 

Id. at 1145 (emphasis added). The Commonwealth, however, apparently 

interprets Kelly’s pronouncement that “aggravated assault and murder are 

not the same crime” to mean that § 906 never applies to those offenses. That 

interpretation is incorrect. Notably, Kelly cites Jacobs, which holds that §

906 does not apply where the acts are intended to culminate in two separate 

crimes. In this respect, the facts in Kelly are quite different than this case 

because there “[Kelly] and Philip Hummel approached the sixteen-year-old 

victim and his girlfriend while they were sitting on the steps of the victim’s 

house. Appellant opened fire as the victim pushed his girlfriend inside the 

home.” Hence, there were two potential victims and the conspiracy could 

have been to kill and/or commit serious bodily injury upon one or both 

persons. 

More apropos is our decision in Commonwealth v. Ford, 461 A.2d 

1281 (Pa. Super. 1983), where we held that separate sentences for 

Conspiracy and Attempted Murder were impermissible under § 906:

[D]espite the Commonwealth’s argument to the contrary, we hold 

that the appellant has not waived his attack on the legality of the 
J-S14037-19

- 19 -

sentence imposed for Attempted Murder, Criminal Conspiracy and 

Possession of an Instrument of Crime. See Commonwealth v.

Smith, 499 Pa. 507, 454 A.2d 1 (1982). Thus, we find the 

appellant’s convictions for the three aforementioned inchoate 

crimes to be violative of 18 Pa.C.S.A. § 906, which provides:

A person may not be convicted of more than one offense defined 

by this chapter for conduct designed to commit or to culminate in 

the commission of the same crime.

All three offenses fall within the purview of Chapter 9 of the Crimes 

Code, the Chapter referred to in Section 906, and it is apparent 

from our review of the facts that the offenses were perpetrated 

with one objective in mind—the (attempted) killing of Lawrence 

Brown. Accordingly, appellant’s conviction for the three crimes 

was improper.

Id. at 1289 (some internal citations omitted).

Here, as in Ford—and unlike Kelly—there is no question that the goal 

of the conspiracy was intended to culminate in one crime: the death of Wilson. 

Consequently, once the jury convicted Johnson of Conspiracy to Commit 

Murder, it was also necessarily finding him guilty of Conspiracy to Commit 

Aggravated Assault as a lesser-included offense and not as a distinct 

substantive offense.

13

For the foregoing reasons, the trial court erred by treating Johnson’s 

conviction for Conspiracy to Commit Aggravated Assault as if it was a distinct 

____________________________________________

13 While the Commonwealth’s information charged Johnson with one count of 

Conspiracy with a criminal objective of “assault/murder”, that in context 

simply appears to reflect an acknowledgement that the jury might not find, 

beyond a reasonable doubt, that Johnson and Smith specifically intended to 

kill Wilson.
J-S14037-19

- 20 -

crime designed to culminate in a different result from the Conspiracy to 

Commit Murder. Accordingly, per the express terms of § 906, he cannot be 

sentenced on both charges.

14 We, thus, vacate Johnson’s judgment of 

sentence for Conspiracy to Commit Aggravated Assault.15 Because our 

decision disrupts the trial court’s sentencing scheme, we must vacate the 

entire judgment of sentence.16

As to Johnson’s remaining sentencing claim regarding whether the 

sentencing court illegally imposed a sentence for Attempted Murder, we

decline to address that issue because of our recent decision in 

Commonwealth v. Bickerstaff, --- A.3d ---, ---, 2019 WL 850582 (Pa. 

Super. filed February 22, 2019), a case decided after briefs were filed in this 

appeal. That case also involved sentencing under 18 Pa.C.S. § 1102(c), which 

____________________________________________

14 Our Supreme Court recently granted allowance of appeal to address 

whether Conspiracy to Commit Murder and Conspiracy to Commit Aggravated 

Assault can be considered separate conspiracies for 18 Pa.C.S. § 906 purposes 

when the defendant’s “actions were the object of one conspiratorial agreement 

and relationship[.]” Commonwealth v. King, --- A.3d ---, ---, 2019 WL 

1033102 (Pa. filed March 5, 2019).

15 We note that 18 Pa.C.S. § 906 prohibits multiple sentences for inchoate 

crimes designed to culminate in the same crime. It does not proscribe which 

offense the court shall impose sentence on. Thus, although the trial court 

cannot sentence on both Attempted Murder and Conspiracy, it retains the 

discretion to choose which inchoate offense to impose sentence on.

16 Johnson argues in the alternative that Attempted Murder and Conspiracy 

should have merged based on the jury because he was convicted as an 

accomplice for Attempted Murder. We need not address the merits of this 

claim since we have granted the same relief based on 18 Pa.C.S. § 906.
J-S14037-19

- 21 -

provides that a defendant convicted of Attempted Homicide “where serious 

bodily injury results may be sentenced to a term of imprisonment which shall 

be fixed by the court at not more than 40 years.” If serious bodily injury did 

not result, then the defendant “may be sentenced to a term of imprisonment 

which shall be fixed by the court at not more than 20 years.” Consequently, 

“[s]erious bodily injury is a fact that must be proven before a maximum 

sentence of [40] years may be imposed for attempted homicide.” 

Commonwealth v. Barnes, 167 A.3d 110, 117 (Pa. Super. 2017). In order 

for the 40-year maximum sentence to apply, the Commonwealth must provide 

notice to the defendant that it seeks to prove serious bodily injury. See id.

In Bickerstaff, we addressed a similar factual scenario, albeit in the 

context of PCRA review. Bickerstaff was charged with, among other crimes, 

Attempted Murder and Aggravated Assault. For the Attempted Murder charge, 

neither the criminal complaint nor the information alleged serious bodily 

injury. In addition, the Commonwealth did not give any pretrial notice of its 

intent to prove serious bodily injury related to Attempted Murder. The first 

mention of serious bodily injury as to Attempted Murder was in the jury verdict 

sheet, which Bickerstaff’s counsel did not object to. The jury ultimately found 

Bickerstaff guilty of Attempted Murder with serious bodily injury, which then 

allowed the trial court to sentence him to 20 to 40 years’ imprisonment. This 

Court affirmed the judgment of sentence on direct appeal.
J-S14037-19

- 22 -

Bickerstaff unsuccessfully sought PCRA relief. On appeal, Bickerstaff 

succeeded on his claim that trial counsel ineffectively failed to object to the 

jury instructions and that the failure to object prejudiced Bickerstaff. Like this 

case, there was no dispute that the victim actually suffered serious bodily 

injury. Bickerstaff argued that the special jury interrogatory did not cure any 

of the asserted defects and was insufficient to allow the court to enhance his 

maximum sentence for Attempted Murder. We agreed:

[T]he Commonwealth charged [Bickerstaff] with only attempted 

murder generally and did not include the element of serious bodily 

injury in the criminal complaint or information. The 

Commonwealth also failed to put [Bickerstaff] on notice that the 

Commonwealth intended to prove attempted murder/serious 

bodily injury at trial. The Commonwealth did not prosecute 

[Bickerstaff] for attempted murder/serious bodily injury. 

Furthermore, the court did not instruct the jury on serious bodily 

injury related to the attempted murder offense. Instead, the court 

gave a jury instruction only on serious bodily injury related to 

aggravated assault. Here, [Bickerstaff] was essentially ambushed 

with the verdict sheet’s special interrogatory that raised for the 

first time a question about serious bodily injury in connection with 

attempted murder. Prior to the interrogatory, [Bickerstaff] had 

no warning that there was even an issue of serious bodily injury 

associated with attempted murder. The charges, complaint, 

information, and jury instructions for attempted murder made no 

mention of associated serious bodily injury. Absent more, this 

surprise interrogatory was not enough to put [Bickerstaff] on 

notice to defend against attempted murder/serious bodily injury.

Id. at *7 (citation omitted).

This case is aligned with Bickerstaff in most respects but importantly 

differs in that it did not analyze the claim as a pure question of law regarding 

legality of sentence and instead appeared to credit the notion that counsel 

could have objected. We decline to address whether that distinction warrants 
J-S14037-19

- 23 -

a different treatment as we have vacated judgment of sentence and remanded 

for resentencing on all counts. On remand, the sentencing court may or may 

not determine that Bickerstaff applies. Alternatively, the Commonwealth 

may elect to concede that Johnson would ultimately succeed in collateral 

review, thus obviating the need to address this question. If not, and the trial 

court imposes a maximum sentence exceeding 20 years at the Attempted 

Murder conviction, Johnson retains the ability to re-raise this issue on any 

appeal from the new judgment of sentence.

Convictions affirmed. Judgement of sentence vacated. Case remanded 

for resentencing. Application for Relief denied. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/29/19