J-S77010-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

SCOTT SCARLOTTA MEINZER

Appellant No. 267 MDA 2016

Appeal from the Judgment of Sentence December 23, 2015

In the Court of Common Pleas of Lancaster County

Criminal Division at No(s): CP-36-CR-0005514-2013

BEFORE: PANELLA, J., OLSON, J., and PLATT, J.*

MEMORANDUM BY PANELLA, J. FILED DECEMBER 09, 2016

Appellant, Scott Scarlotta Meinzer, appeals from the judgment of 

sentence entered after a jury convicted him of conspiracy to commit 

burglary of an occupied residence. Meinzer contends that the sentence 

imposed by the trial court is illegal, as Meinzer believes that the trial court’s 

conspiracy instruction was ambiguous. We conclude that the trial court’s 

instruction, viewed in context, was not ambiguous. We therefore affirm.

Meinzer was charged with robbery, burglary, and conspiring with 

Joshua Hudelson based on allegations that the two broke into an apartment 

to steal a firearm, some marijuana, and cash. It is undisputed that, during 

its instructions regarding the conspiracy charge to the jury, the trial court 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.
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did not task the jury with determining whether the apartment was occupied 

at the time of the crime. See N.T., Trial, 10/7/15, at 356. The jury found 

Meinzer not guilty of robbery or burglary, but convicted him of conspiracy to 

commit burglary.

At sentencing, Meinzer argued that the conspiracy conviction should be 

graded as a second-degree felony, based upon his belief that the jury 

instruction was ambiguous. The trial court announced that it did not believe 

that Meinzer’s argument was correct, but agreed to impose sentence as if 

the conviction was for a second-degree felony. The court sentenced Meinzer 

to a term of imprisonment of nine to twenty-three months. The court 

subsequently denied Meinzer’s post-sentence motion, and this timely appeal 

followed.

The trial court ordered Meinzer to file a concise statement of matters 

complained of on appeal pursuant to Pa.R.A.P. 1925. Meinzer’s counsel filed 

a statement indicating an intent to file an Anders1 brief in lieu of a concise 

statement. As a result, the trial court did not author an opinion on appeal.

However, rather than an Anders brief, Meinzer has now filed a merits 

brief raising a single issue. While Meinzer acknowledges that the term of 

imprisonment imposed is consistent with his belief that he was convicted of 

____________________________________________

1 Anders v. California, 386 U.S. 738 (1967). An Anders brief is filed when 

appointed counsel seeks permission to withdraw their appearance in a 

matter.
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a second-degree felony, he argues that it is still illegally recorded as a firstdegree felony, as the jury instructions were insufficient to render the jury’s 

verdict unambiguous. This issue is a challenge to the legality of the sentence 

imposed. See Jacobs, 39 A.3d at 977, 982 (Pa. 2012). It therefore cannot 

be waived. See Commonwealth v. Jones, 932 A.2d 179, 182 (Pa. Super. 

2007). Thus, Meinzer’s failure to include this issue in his concise statement 

does not act as a waiver.

Turning to the merits of the argument, we note that we must construe 

an ambiguity in a conspiracy conviction in favor of the defendant. See 

Commonwealth v. Riley, 811 A.2d 610, 620 (Pa. Super. 2002). In Riley, 

[t]he conspiracy count of the information ... appears to 

encompass both underlying crimes [burglary and theft] as 

objects of the conspiracy. [The trial court’s] instructions to the 

jury accordingly permitted the jury to find Riley guilty of 

conspiracy, as a general matter, if they determined that he 

committed the crime of burglary ‘and/or’ theft. 

Id., at 618. Thus, we concluded that it was unclear which crime the jury 

convicted Riley of conspiring to commit. See id., at 620.

Here, Meinzer’s conviction for conspiracy to commit burglary is not 

ambiguous. The trial court instructed the jury that the alleged conspiracy 

involved burglary. See N.T., Trial, 10/7/15, at 357. The only burglary at 

issue was the burglary of an occupied residence. Meinzer’s defense at trial 

was not that he burgled an unoccupied residence; rather, he argued that he 

was not involved in this burglary. See N.T., Trial, 10/6/15, at 315-316.

Furthermore, the verdict sheet includes only a single count of burglary, 
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labeled “Burglary – Person Present.” Exhibit to Defense Objections to 

Sentencing Guidelines Computation. There is no indication that Meinzer 

objected to the verdict sheet when it was submitted to the jury. See N.T., 

Trial, 10/7/15, at 360-363.

There is simply no ambiguity in the jury’s verdict. The verdicts may 

arguably have been inconsistent, but that is permissible under Pennsylvania 

law. See Riley, 811 A.2d at 617. It is clear that the jury found Meinzer 

guilty of conspiring to commit the only burglary that was before the jury. We 

would be forced to imagine an alternate burglary, for which no evidence was 

presented at trial, in order to accept Meinzer’s argument. As a result, 

Meinzer is due no relief on appeal.

Judgment of sentence affirmed. Jurisdiction relinquished. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/9/2016