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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

Appellee :

:

v. :

:

:

VINCENT WALLACE, :

:

Appellant : No. 3489 EDA 2012

Appeal from the Judgment of Sentence December 3, 2012

In the Court of Common Pleas of Philadelphia County 

Criminal Division No(s).: CP-51-CR-0015493-2010

BEFORE: GANTMAN, P.J., ALLEN, and FITZGERALD,*JJ.

MEMORANDUM BY FITZGERALD, J.: FILED JUNE 8, 2015

Appellant, Vincent Wallace,1appeals from the judgment of sentence of 

life imprisonment entered in the Philadelphia County Court of Common Pleas 

after a jury found him guilty of murder of the second degree,2robbery,3and 

conspiracy.4 Appellant claims (1) the evidence was insufficient to prove he 

perpetrated the crimes and (2) the trial court’s separate, concurrent 

 

*

Former Justice specially assigned to the Superior Court.

1 An appeal by Appellant’s codefendant, Kyle Reed, is pending at 

Commonwealth v. Reed, 1269 EDA 2013. 

2 18 Pa.C.S. § 2502(b).

3 18 Pa.C.S. § 3701(a)(1).

4 18 Pa.C.S. § 903.
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sentence for robbery was illegal.5 We affirm the convictions, but vacate the 

sentence for robbery. 

The parties are well versed in the evidence presented against 

Appellant and his codefendant, Kyle Reed (“Codefendant”), at their joint jury 

trial for the killing of Ernest Miller (“Decedent”). By way of background, 

Decedent was a retired police officer and maintained a photography studio 

on the first floor of his residence on the 2600 block of West Oakdale Avenue 

in the City of Philadelphia. According to the Commonwealth, Codefendant 

paid Decedent three or four years earlier to find modelling jobs for his then 

girlfriend, Raffinnee Taylor, but she received no offers. The Commonwealth 

alleged Codefendant, a few weeks before the killing, learned Decedent was 

still in business at his home on West Oakdale Avenue. Codefendant, along 

with Appellant and Michael Grant, planned to go to Decedent’s residence to 

recover his money from Decedent. 

On the afternoon of December 28, 2008, Appellant, Codefendant, and 

Grant allegedly went to Decedent’s residence Although there was no 

evidence of forced entry, a gunfight occurred on the first floor of the home 

that involved at least two firearms. Decedent and Grant suffered fatal 

gunshot wounds. Appellant suffered a gunshot wound to his pelvis. 

 

5 The Commonwealth agrees the separate sentence for robbery should have 

merged with the sentence for second-degree murder and should be vacated. 

Commonwealth’s Brief at 1 n.1. 
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Codefendant allegedly dragged Grant from the residence, but left him 

outside by the front door, and drove Appellant to Einstein Hospital. 

Duane Tate was driving near the scene of the shooting, and saw 

Appellant limp to the passenger side of a dark sedan with front-end damage 

near the 2500 block of West Oakdale Avenue.6 Video surveillance at Einstein 

Hospital showed an individual exit from the passenger side of a similar 

vehicle in a parking lot near the emergency room at 4:13 p.m., and limp 

toward the emergency room. 

None of the firearms involved in the shooting were found, and no 

physical evidence linked Appellant or Codefendant to the shooting. 

However, investigators obtained statements from Grant’s wife, Michelle 

Hinds, and Codefendant’s former girlfriend, Taylor, implicating Codefendant 

and placing Appellant at the scene of the shooting. Appellant was charged 

on January 6, 2009, with homicide, robbery, criminal conspiracy, and related 

offenses. 

Appellant proceeded with Codefendant to a joint jury trial beginning 

November 26, 2012. The Commonwealth, inter alia, called Grant’s wife, who 

testified that on the afternoon of December 28, 2008, Grant told her he was 

“making a run with [Codefendant.]” N.T., 11/26/12, at 131. Later that 

 

6 Tate subsequently identified Appellant at a preliminary hearing on February 

3, 2010. N.T., 11/28/12, at 179. At the time of trial, Tate was declared 

unavailable and his preliminary hearing testimony was read into the record. 

Id. at 173.
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evening, she met Codefendant in the Germantown section of Philadelphia, 

and he stated there was a shootout and Grant “didn’t make it back from this 

one.” Id. at 116, 120-21. He told her Grant and another friend were shot, 

Grant was dead, and the person who shot Grant was dead. Id. at 122-23. 

He described how he attempted to drag Grant to the car, but decided to 

leave him to take the other friend to a hospital. Id. at 121-22.

The Commonwealth also called Taylor, Codefendant’s former girlfriend, 

and introduced three prior statements she gave to police, two on December 

30, 2008, and one on January 2, 2009.7 Id. at 169-70, 188-89, 207-08; 

N.T., 11/28/12, at 99-122. In her first statement on December 30th, 

Taylor identified pictures of Appellant, Codefendant, and Grant and told 

detectives they were friends. N.T., 11/28/12, at 105. In her second 

statement on December 30th, she further described the past friendship 

between Appellant and Codefendant. Id. at 113-14. In her third statement 

on January 2nd, Taylor indicated “a few weeks” before the shooting, she told 

Codefendant she saw Decedent at his residence during an audition. Id. at 

120-21. Codefendant “got mad,” told her Decedent owed him money, and 

stated he would “go down there to see” Decedent. Id. at 120. When 

 

7 Taylor’s first statement was taken at 11:55 a.m., on December 30, 2008, 

the second at 4:30 p.m., that same day, and the third at 8:45 p.m., on 

January 2, 2009. Taylor adopted her first statement at trial, but recanted 

her second and third statements. She asserted detectives used coercive 

interrogation tactics, including detaining her incommunicado from December 

29, 2008, to January 2, 2009, and keeping her shackled in an interview 

room at the Homicide Unit without food and water.
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detectives asked whether Decedent owed Codefendant money, Taylor 

responded Codefendant paid Decedent several hundred dollars four years 

earlier for a modelling program, but she did not get a job. Id. at 119, 121. 

She further stated that on the evening of December 28, 2008, Codefendant 

told her “Vince, Mike and the boy Emir got shot.”8 Id. at 121. 

On December 3, 2012, the jury found Appellant and Codefendant 

guilty of second-degree murder, robbery, and conspiracy to commit robbery, 

and not guilty of possessing an instrument of crime. That same day, the 

trial court imposed a sentence of life imprisonment for second-degree 

murder and concurrent sentences of five to ten years’ imprisonment each for 

conspiracy and robbery.

Appellant did not file post-sentence motions, but filed a timely notice 

of appeal on December 18, 2012, and later complied with the trial court’s 

order to submit a Pa.R.A.P. 1925(b) statement. The presiding judge retired, 

and a Rule 1925(a) opinion was not authored. 

Appellant presents the following questions on appeal:

Is [A]ppellant entitled to an arrest of judgment with 

respect to his convictions for second degree murder, 

robbery, and criminal conspiracy since the evidence is 

insufficient to sustain the verdicts of guilt . . . ?

Is [A]ppellant entitled to have his separate sentence for 

robbery vacated since the imposition of a separate 

 

8 Taylor previously identified “Vince” as Appellant, “Mike” as Grant, and 

referred to Decedent as “Emir”. N.T., 11/28/12, at 105, 119. 
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sentence for robbery following conviction for second 

degree murder violates double jeopardy?

Appellant’s Brief at 4. 

Appellant first claims the evidence was insufficient to sustain the 

verdicts. He asserts “[t]he Commonwealth’s evidence failed to establish 

[his] identity as a shooter or as a participant in the incident resulting in 

[Decedent’s] death.” Id. at 17. According to Appellant, there was no 

evidence “that he removed any property or attempted to remove any 

property from [Decedent], that he fired a weapon or that he was responsible 

for the victim’s death.” Id. at 18. He claims he “was merely present during 

the incident and, therefore, not criminally culpable” as an accomplice or a 

coconspirator. Id. We disagree.

The principles governing our review of the sufficiency of the evidence 

are as follows:

The standard we apply in reviewing the sufficiency of 

evidence is whether, viewing all the evidence admitted at 

trial in the light most favorable to the verdict winner, there 

is sufficient evidence to enable the factfinder to find every 

element of the crime beyond a reasonable doubt. In 

applying the above test, we may not weigh the evidence 

and substitute our judgment for that of the fact-finder. In 

addition, we note that the facts and circumstances 

established by the Commonwealth need not preclude every 

possibility of innocence. Any doubts regarding a 

defendant’s guilt may be resolved by the fact-finder unless 

the evidence is so weak and inconclusive that as a matter 

of law no probability of fact may be drawn from the 

combined circumstances. The Commonwealth may sustain 

its burden of proving every element of the crime beyond a 

reasonable doubt by means of wholly circumstantial 

evidence. Moreover, in applying the above test, the entire 
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record must be evaluated and all evidence actually 

received must be considered. Finally, the trier of fact 

while passing upon the credibility of witnesses and the 

weight of the evidence produced, is free to believe all, part 

or none of the evidence.

Commonwealth v. Lambert, 795 A.2d 1010, 1014 (Pa. Super. 2002) 

(citations and some punctuation omitted). 

However, 

[w]hile reasonable inferences must be drawn in the 

Commonwealth’s favor, the inferences must flow from 

facts and circumstances proven in the record, and must be 

of such volume and quality as to overcome the 

presumption of innocence and satisfy the jury of the 

accused’s guilt beyond a reasonable doubt. The trier of 

fact cannot base a conviction on conjecture and 

speculation and a verdict which is premised on suspicion 

will fall even under the limited scrutiny of appellate review.

Commonwealth v. Robinson, 817 A.2d 1153, 1158 (Pa. Super. 2003) 

(citations, emphasis, and some punctuation omitted). 

The elements of the relevant crimes are as follows. “Murder of the 

second degree is a criminal homicide committed while a defendant was 

engaged as a principal or an accomplice in the perpetration of a felony.” 

Lambert, 795 A.2d at 1015 (citing 18 Pa.C.S. § 2502(b)). The phrase 

“perpetration of a felony,” in relevant part, means the act of “being an 

accomplice in the commission of, or an attempt to commit, or flight after 

committing or attempting to commit robbery[.]” Id. (citing 18 Pa.C.S. § 

2502(d)). “[A]n accomplice is someone who, ‘with the intent of promoting 

or facilitating the commission of the offense aids or agrees or attempts to 
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aid [another person] in planning or committing’ the crime.” Id. at 1024 

(citing 18 Pa.C.S. § 306(c)(1)(ii)). 

Conspiracy requires the Commonwealth to establish “that the 

defendant entered an agreement to commit or aid in an unlawful act with 

another person or persons with a shared criminal intent and an overt act 

was done in furtherance of the conspiracy.” Id. at 1016 (discussing 18 

Pa.C.S. § 903). 

A conspiracy is almost always proved through 

circumstantial evidence. The conduct of the parties and 

the circumstances surrounding their conduct may create a 

web of evidence linking the accused to the alleged 

conspiracy beyond a reasonable doubt. . . . 

* * *

Among the circumstances which are relevant, but not 

sufficient by themselves, to prove a corrupt 

confederation are: (1) an association between 

alleged conspirators; (2) knowledge of the 

commission of the crime; (3) presence at the scene 

of the crime; and (4) in some situations, 

participation in the object of the conspiracy. The 

presence of such circumstances may furnish a web of 

evidence linking an accused to an alleged conspiracy 

beyond a reasonable doubt when viewed in 

conjunction with each other and in the context in 

which they occurred. 

Id. (citations and some punctuation omitted). 

Under 18 Pa.C.S. § 3701, “[a] person is guilty of robbery if, in the 

course of committing a theft, he . . . inflicts serious bodily injury.” 18 

Pa.C.S. § 3701(a)(1)(i). “An act shall be deemed ‘in the course of 
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committing a theft’ if it occurs in an attempt to commit theft or in flight after 

the attempt or commission.” 18 Pa.C.S. § 3701(a)(2).

It is well settled that a defendant may be held criminally liable for the 

conduct of others. “An accomplice is also legally accountable for the conduct 

of the other person involved in committing the crimes.” Commonwealth v. 

Knox, 50 A.3d 749, 755 (Pa. Super. 2012) (citing 18 Pa.C.S. § 306(b)(3)). 

Furthermore, the overt act in a conspiracy need not be committed by the 

defendant. Id. Rather, liability extends to all actions of a coconspirator in 

furtherance of the conspiracy. Id.

Instantly, there was no physical or direct evidence linking Appellant to 

either the shooting inside Decedent’s home, or a theft from Decedent, and 

guilty verdicts based on a theory that Appellant was a principal in the killing 

or a competed theft would be speculative. See Robinson, 817 A.2d at 

1158. Thus, the Commonwealth’s burden was to prove Appellant came to a 

criminal agreement with Codefendant or Grant to use or threaten force to 

deprive Decedent of property, and at least one conspirator took an overt act 

in furtherance of that conspiracy to commit robbery. See 18 Pa.C.S. §§ 

903, 3701(a)(1); Knox, 50 A.3d at 755. Critically, the Commonwealth was 

also required to prove that Appellant intended to promote or facilitate the 

commission of the attempted robbery during which Decedent was killed. 

See 18 Pa.C.S. §§ 306(c)(1)(ii), 2502(b), (d); Lambert, 795 A.2d at 1015, 

1024.
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As to Appellant’s presence at the scene, we note Appellant, in two 

interviews with detectives at Einstein Hospital,9stated he was wounded 

during a robbery near Broad Street and Olney Avenue, several miles from 

Decedent’s residence. See N.T., 11/27/12, at 79, 146. However, 

Decedent’s neighbor, Tate, identified Appellant and testified he was limping 

from the direction of the 2600 block of West Oakdale Avenue, to a car on the 

2500 block. N.T., 11/28/12, at 178-79. The jury also heard evidence that 

Codefendant told Grant’s wife that Grant and another friend were shot, but 

the person who shot Grant was dead. N.T., 11/26/12, at 122-23. 

Codefendant also told Taylor that Grant and Appellant were shot. N.T., 

11/28/12, at 121. Thus, there was sufficient circumstantial evidence to 

conclude Appellant was present at the scene and wounded during the 

shootout at Decedent’s residence. 

As to Appellant’s contention he was merely present at the time of the 

shooting, the Commonwealth, through Taylor’s trial testimony and her prior 

statements, presented evidence of an existing association between Appellant 

 

9 Detective Matthew Gillespie from Northwest Detectives and Detective 

Schell, whose first name and assignment was not revealed at trial, 

interviewed Appellant at Einstein Hospital in the morning of December 29, 

2008. N.T., 11/27/12, at 70-72. Detective James Poulous from Northwest 

Detectives interviewed Appellant later that same afternoon. Id. at 143. 

Detective Poulous testified, without objection from the defense, that 

Appellant gave inconsistent explanations and did not “give additional 

information” after the detective confronted him. Id. at 146-48. The 

parties stipulated that Appellant was receiving several pain medications 

following surgery. N.T., 11/29/12, at 19. 
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and Codefendant.10 At trial, Taylor acknowledged Appellant and 

Codefendant were friends. N.T., 11/26/12, at 154. Taylor further told 

detectives Appellant and Codefendant were friends for as long as she knew 

Codefendant, and she used to see Appellant at Codefendant’s house “doing a 

lot of cleaning or just hanging around if [Codefendant] needed him to do 

something.” N.T., 11/28/12, at 113. 

Several weeks before the shooting, Codefendant told Taylor he 

intended to “see” Decedent regarding the alleged debt. Id. at 120. On the 

afternoon of the shooting, Grant told his wife he was “making a run” with 

Codefendant. N.T., 11/26/12, at 131. Appellant, Codefendant, and Grant 

approached Decedent’s residence dressed in dark clothes.11 Police also 

found a pair of handcuffs, a set of keys, and a walkie-talkie outside 

Decedent’s home. N.T., 11/27/12, at 9, 33. Although no firearms involved 

in the shooting were found, expert testimony established at least one 

firearm, likely a revolver, was used to shoot at Decedent, while Decedent 

 

10 To the extent Appellant asserts Taylor’s prior statements were unworthy 

of belief, such assertions go to the weight, not the sufficiency of the 

evidence. See Lambert, 795 A.2d at 104. 

11 The jury was able to view Grant’s and Appellant’s clothing from the 

shooting. N.T., 11/27/12, at 36 (discussing hoody sweatshirt at scene with 

bullet hole and blood matched by DNA to Grant), 152 (describing Appellant’s 

clothes as “black track suit, jacket, . . . matching pants, black boot, [and] 

black hat with a ‘G’ on it”). Moreover, Taylor’s first statement to police 

indicated Appellant was wearing dark jeans and a dark shirt. N.T., 11/28/12 

at 104. The Commonwealth, in closing argument, argued the dark clothes 

supported its theory that Codefendant “went down there on a mission to 

take care of business.” N.T., 11/29/12, at 78. 
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fired toward the front doorway of his home with a Glock-type semiautomatic. Id. at 47, N.T., 11/28/12, at 56-58. Moreover, despite the 

evidence establishing Appellant had been shot at the 2600 block of West 

Oakdale Avenue, he told detectives he was shot near Broad Street and Olney 

Avenue. 

This circumstantial evidence, when read in a light most favorable to 

the Commonwealth, sustained the following inferences. Codefendant went 

to Decedent’s residence to resolve a perceived debt, and arranged for 

Appellant and Grant to accompany him. Appellant, Codefendant and Grant 

approached Decedent’s residence dressed in dark clothing and with at least 

one firearm, a pair of handcuffs, and at least one walkie-talkie among them. 

Grant entered Decedent’s residence and was mortally wounded inside the 

home. Appellant was within sufficient distance to be shot. Codefendant 

dragged Grant from the home, but left him outside the residence to assist 

Appellant. Significantly, the only connection between Appellant and 

Decedent was Codefendant’s statement to Taylor that he intended to meet 

Decedent about the debt. 

Given these inferences, we conclude that the jury was entitled to find 

(1) Appellant entered into a criminal agreement to deprive Decedent of 

money, (2) the use of force was within the scope of the conspiracy, (3) 

Appellant intended to assist Codefendant to take Decedent’s money when 

approaching Decedent’s home, and (4) Decedent was killed during the 
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perpetration of an attempted robbery. See Knox, 50 A.3d at 757; 

Lambert, 795 A.2d at 1016. Thus, we discern no merit to Appellant’s 

contention that the evidence only established his “mere presence” at the 

scene and conclude no relief is due on the convictions for conspiracy, 

robbery, and second-degree murder. 

Appellant next contends the trial court illegally sentenced him on both 

second-degree murder and robbery. Appellant asserts the court’s sentences 

for second-degree murder and the predicate felony offense of robbery 

violated double jeopardy principles.12 Appellant’s Brief at 32 (citing 

Commonwealth v. Tarver, 426 A.2d 569, 573 (Pa. 1981)). As noted 

above, the Commonwealth agrees limited relief is due on this claim. 

There is a common law history requiring robbery be merged with 

second-degree murder at sentencing. See id. (overruling Commonwealth 

v. Sparrow, 370 A.2d 712 (Pa. 1977), and holding robbery is “constituent 

offense” of second-degree murder and thus “same offense” under double 

jeopardy test in Blockburger v. United States, 284 U.S. 299 (U.S. 1932)). 

However, the General Assembly, effective February 2003, created a 

statutory merger provision, which states, “No crimes shall merge for 

 

12 Although raised for the first time on appeal, this issue challenges the 

legality of the sentence on robbery and cannot be waived. See 

Commonwealth v. Tanner, 61 A.3d 1043, 1046 (Pa. Super. 2013) 

(“challenges to an illegal sentence can never be waived and may be 

reviewed sua sponte by this Court. An illegal sentence must be vacated.” 

(citations and some punctuation omitted)).
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sentencing purposes unless the crimes arise from a single criminal act and 

all of the statutory elements of one offense are included in the statutory 

elements of the other offense.” 42 Pa.C.S. § 9765. Section 9765 reflects a 

“strict elements approach,” which “preclude[s] the courts of this 

Commonwealth from merging sentences for two offenses that are based on 

a single criminal act unless all of the statutory elements of one of the 

offenses are included in the statutory elements of the other.” 

Commonwealth v. Baldwin, 985 A.2d 830, 837 (Pa. 2009); 

Commonwealth v. Quintua, 56 A.3d 399, 402 (Pa. Super. 2012). 

In Baldwin, the Pennsylvania Supreme Court observed:

Labels, such as “pure elements test” and “strict elements 

approach,” have often led to greater mischief. For 

example, in Whalen [v. United States, 445 U.S. 684, 

(1980)], the United States Supreme Court struggled to 

determine whether a felony murder conviction merged 

with a conviction for the underlying felony where a felony 

murder conviction could hinge on any one of six 

enumerated offenses. A “strict elements approach,” 

which does not consider the offenses as charged and 

proven in each particular case, invariably leads to 

the conclusion that the crimes do not merge. 

Nevertheless, a majority of the Court, relying on 

Blockburger (often used synonymously with “strict 

elements approach”) held that the two convictions merged 

for sentencing. In this regard, the Court demonstrated a 

recognition that examination of the elements of the crimes 

as charged is sometimes necessary, especially when 

dealing with an offense that can be proven in alternate 

ways.

Baldwin, 985 A.2d at 837 n.6 (emphasis added). 
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It is clear Section 9765 has disrupted at least some of the prior 

decisional law regarding merger. See Commonwealth v. Quintua, 56 A.3d 

at 402 (holding burglary and criminal trespass do not merge). However, 

Tarver’s analysis was based on a strict elements approach rooted in 

Blockburger, which, in turn, reflects principles similar to those adopted by 

the General Assembly when enacting Section 9765. See Baldwin, 985 A.2d 

at 837 n.6. Thus, Tarver remains binding authority on this Court. 

Accordingly, we agree with the parties that Appellant’s conviction for murder 

of the second degree and robbery merge, and vacate the sentence for 

robbery. Because our decision does not affect the aggregate sentence, a 

remand for resentencing is unnecessary. See Commonwealth v. 

Henderson, 938 A.2d 1063, 1067-68 (Pa. Super. 2007). 

Judgment of sentence affirmed in part. Sentence for robbery vacated.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/8/2015