J-S38027-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

JOSEPH S. EMEL

Appellant No. 1923 MDA 2014

Appeal from the Judgment of Sentence entered September 4, 2014

In the Court of Common Pleas of Clinton County

Criminal Division at No: CP-18-CR-0000133-2014

BEFORE: WECHT, STABILE, and MUSMANNO, JJ.

MEMORANDUM BY STABILE, J.: FILED JULY 20, 2015

Appellant, Joseph S. Emel, appeals from the judgment of sentence1

entered for his conviction of criminal conspiracy. Appellant contends the 

trial court violated his due process rights in sentencing him to a crime with 

which he was not charged. After review, we affirm. 

____________________________________________

1 The trial court imposed sentence on September 4, 2014. Appellant filed a 

timely post-sentence motion. In response, the trial court vacated the 

judgment of sentence, even though Rule 720 provides, “[t]he judge shall 

not vacate sentence pending decision on the post-sentence motion, but 

shall decide the motion as provided in this paragraph.” Pa.R.Crim.P. 

720(B)(3) (emphasis added). The trial court’s ultra vires vacatur of the 

judgment of sentence is a legal nullity. Because of the breakdown in the 

operation of the court, we will construe the trial court’s “sentence” reimposed on October 28, 2014, as an order denying Appellant’s postsentence motion.
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Appellant was an inmate at the Clinton County Correctional Facility. 

He and other inmates, including his son, accused a corrections officer of 

exposing his penis to them. After investigation, authorities determined the 

inmates had contrived to submit a false accusation. Police charged 

Appellant and his cohorts with several crimes of false reporting. The exact 

charges lodged against Appellant changed several times before trial. 

Following the Commonwealth’s filing of a second amended information, the 

charges were: (1) solicitation to commit false reports to law enforcement 

authorities;2(2) false reports to law enforcement authorities;3(3 and 4) 

unsworn falsification to authorities;4and (5 and 6) conspiracy to commit 

unsworn falsification to authorities.5 

Following the close of the Commonwealth’s case, the trial court denied 

Appellant’s motion for judgment of acquittal. It then conferred with counsel 

regarding the jury instructions and verdict slip. Appellant’s counsel noted 

that the Commonwealth essentially alleged two acts of falsity: the false 

internal grievance to prison authorities and the submission of false 

statements to the Pine Creek Township Police Department, which 

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2 18 Pa.C.S.A. § 902(a)

3 18 Pa.C.S.A. § 4906(a).

4 18 Pa.C.S.A. § 4904(a)(1) and (2).

5 18 Pa.C.S.A. § 903(a).
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investigated the internal grievance. During the colloquy, the following 

occurred:

THE COURT: Well, it just seems to me that the best way to 

submit this is one count of unsworn falsifications that the 

[Appellant] did, and one count of false reports the [Appellant] 

did, and then just a general count of conspiracy and let it go at 

that. 

* * *

The [jury will] have three counts: Number one, whether or not 

the [Appellant] committed unsworn falsification[s] by his report 

to the correctional facility; number two, whether he committed 

false reports by his written statement to Pine Creek Police 

Department, and three, just a general conspiracy count.

N.T. Jury Trial (Partial), 8/14/14, at 6-7 (emphasis added). Following a brief 

recess, the trial court showed counsel at sidebar the verdict slip to be used. 

Notwithstanding the above, the verdict slip listed count 3 as “Conspiracy to 

File False Reports.” Verdict, 9/9/14 (emphasis added). The trial court 

showed both counsel the verdict slip.

THE COURT: The [c]ourt has shown counsel the verdict slip 

which the [c]ourt proposes to use. Mr. Ryan [i.e., the 

prosecutor], any objection?

MR. RYAN: No.

THE COURT: Mr. Strouse[, i.e., defense counsel]?

MR. STROUSE: No, Your Honor.

N.T. Jury Trial (Partial), 8/14/14, at 7-8 (emphasis added). On Count 3, the 

trial court then charged the jury as follows:

THE COURT: I’ve tried to simplify this for you by breaking down 

the charges into three separate categories.
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Counts 1 and 2 have to do with statements made allegedly by 

the [Appellant], himself. Count 3 involves conspiracy, that is, the 

alleged discussion among all of the various players in this 

particular case. . . .

* * *

Now, the third count involves the general concept of conspiracy 

that involves this entire scenario that we’ve been talking about 

to today, and that is the filing of the grievance report by the first 

gentleman and then this admission of other reports by the other 

various inmates that were part of this cell block area. The 

[Appellant] is charged with conspiracy to commit the offenses of 

false reports and unsworn falsifications which are the first 

two counts. In Pennsylvania, joining in a conspiracy or creating 

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

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

all responsible for the distinct crime of conspiracy. . . .

* * *

Now, in this case, with regard to the charge of conspiracy, the 

Commonwealth alleges that the [Appellant] conspired with the 

other folks in the cell block and that they would make up a story 

about what the correctional officer did, and proceed with a 

grievance procedure and then investigation that followed the 

grievance procedure and continue to put forth false accusations 

regarding the correctional officer.

Id. at 8, 12, 13-14 (emphasis added).

After completing its charge, the trial court asked counsel at sidebar 

whether they had any objections. Appellant did not object. The 

Commonwealth requested clarification regarding the conspiracy count, so 

the trial court gave the following corrective charge:

THE COURT: When I had typed up [sic] with regard to Count 3, I 

did put down conspiracy to file false reports, but the conspiracy 

charge refers both to filing false reports to the Pine Creek 

Township [Police Department] as well as the unsworn 

falsification to the correctional facility. So anything within the 

context of what we’ve been talking about today.
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Id. at 15 (emphasis added).

The jury acquitted Appellant of false reports and unsworn falsifications, 

and convicted him of conspiracy. On September 4, 2015, the trial court 

sentenced Appellant to 4 to 24 months in prison. Appellant filed a postsentence motion claiming that the jury instructions were erroneous and that 

the trial court improperly sentenced him for a crime with which he was never 

charged. The trial court denied the post-sentence motion, see supra, note 

1, and this appeal followed.

On appeal, Appellant frames his argument as follows:

Whether the trial court erred as a matter of law by sentencing 

[Appellant] on one count of conspiracy where the jury convicted 

Appellant on a conspiracy offense listed on the verdict slip for 

which Appellant had not been charged by the Commonwealth.

Appellant’s Brief at 8 (all-caps font removed).

Sentencing a defendant for an uncharged crime implicates due 

process. See Commonwealth v. Sims, 919 A.2d 931, 938 (Pa. 2007). 

Whether Appellant was “denied due process is a question of law. ‘As with all 

questions of law, the appellate standard of review is de novo and the 

appellate scope of review is plenary.’” Commonwealth v. Moody, 46 A.3d 

765, 771 (Pa. Super. 2012) (quoting In re Wilson, 879 A.2d 199, 214 (Pa. 

Super. 2005) (en banc)), appeal granted in part on other grounds, 79 A.3d 

1093 (Pa. 2013).

We reject Appellant’s argument for two reasons. First, he waived any 

claims of error regarding the jury instructions and jury verdict slip. Second, 
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the record does not show that Appellant was convicted of an uncharged 

crime.

To preserve an issue on appeal, a party must timely object. 

Commonwealth v. Gonzalez, 112 A.3d 1232, 1240 (Pa. Super. 2015). 

Appellant did not object to the verdict slip; thus, we cannot review 

Appellant’s claim of error regarding it. “Trial counsel did not object to the 

use of the verdict slip, and therefore this issue has been waived.” 

Commonwealth v. duPont, 730 A.2d 970, 984-85 (Pa. Super. 1999). 

Similarly, we cannot review any claim of error regarding the jury 

instructions. To preserve error regarding jury instructions, a defendant must 

make a specific objection at trial. Pa.R.Crim.P. 647(B); Pa.R.A.P. 302(b). 

“A specific and timely objection must be made to preserve a challenge to a 

particular jury instruction. Failure to do so results in waiver.” 

Commonwealth v. Charleston, 16 A.3d 505, 527 (Pa. Super. 2011) 

(quoting Commonwealth v. Moury, 992 A.2d 163, 178 (Pa. Super. 2010)). 

Here, Appellant raised his objection to the jury charge for the first time in a 

post-sentence motion. Therefore, he waived any claim of error to the 

charge.6

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6 The constitutional nature of Appellant’s contention does not vitiate the 

requirement to preserve error by timely objecting. See Commonwealth v. 

Strunk, 953 A.2d 577, 579, 581 (Pa. Super. 2008) (noting that even 

constitutional claims may not be raised for the first time on appeal, and 

holding defendant waived his claim that he was denied his Sixth Amendment 

(Footnote Continued Next Page)
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Second, we disagree with Appellant’s contention that the trial court 

sentenced him to a crime with which he was not charged. The flaw in 

Appellant’s logic is that it conflates the substantive, inchoate crime of 

conspiracy with the offenses that are the object or objects of the conspiracy. 

The Crimes Code defines conspiracy as follows:

A person is guilty of conspiracy with another person or persons 

to commit a crime if with the intent of promoting or facilitating 

its commission he:

(1) agrees with such other person or persons that they or 

one or more of them will engage in conduct which 

constitutes such crime or an attempt or solicitation to 

commit such crime; or

(2) agrees to aid such other person or persons in the 

planning or commission of such crime or of an attempt or 

solicitation to commit such crime.

18 Pa.C.S.A. § 903(a). The elements of conspiracy are: 

(1) the defendant intended to commit or aid in the commission 

of the criminal act;[7](2) the defendant entered into an 

agreement with another (a “co-conspirator”) to engage in the 

crime; and (3) the defendant or one or more of the other co-

(Footnote Continued) _______________________

right to a fair trial by an impartial jury when he failed to request removal of 

sleeping juror).

7 Section 903 requires that the conspiracy have a criminal objective. This 

clarifies the law of conspiracy, which previously extended conspiracy to any 

agreement “to do any other dishonest, malicious, or unlawful act . . . .” 18 

Pa.C.S.A. § 903 Official Comment – 1972 (quoting Penal Code of 1939, Act 

of June 24, 1939, P.L. 872, § 302 (formerly found at 18 P.S. § 4302)); see 

also Model Penal Code Commentaries pt. 1, § 5.03, at 394-97 (1985) 

(explaining the purpose of the “criminal objective” requirement of Model 

Penal Code § 5.03 (from which 18 Pa.C.S.A. § 903 is derived) was to narrow 

the law of conspiracy).
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conspirators committed an overt act in furtherance of the agreed 

upon crime.

Commonwealth v. Murphy, 844 A.2d 1228, 1238 (Pa. 2004). A 

conspiracy is complete when one of the conspirators commits an overt act in 

pursuance of the conspiracy. 18 Pa.C.S.A. § 903(e). “The overt act need 

not accomplish the crime—it need only be in furtherance thereof. In fact, no 

crime at all need be accomplished for the conspiracy to be committed.” 

Commonwealth v. Weimer, 977 A.2d 1103, 1105-06 (Pa. 2009). In other 

words, the conspiracy does not need to be successful for the conspirators to 

be criminally liable.

Because conspiracy is both an inchoate offense and a distinct, 

substantive crime from the object of the conspiracy, the elements of the 

underlying crime are not elements of conspiracy. Rather, to convict, the 

Commonwealth needed prove only that Appellant agreed with his fellow 

inmates to commit a criminal act. Therefore, Appellant errs in comparing 

the disparate elements of false reports and unsworn falsifications. The 

record shows that the jury was charged that it could find Appellant guilty of 

conspiracy based broadly on the criminal acts he and the other inmates 

agreed to accomplish. The Commonwealth was not required to prove the 

specific elements of the crimes that Appellant conspired to commit. 

Finally, Appellant baldly claims a violation of due process based on 

alleged lack of notice and inability to prepare a defense. Appellant, 

however, fails to identify any prejudice incurred by the alleged lack of notice. 

We find none.
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We reject Appellant’s sole assignment of error that he was convicted of 

a crime with which he was not charged. Accordingly, we affirm.

Judgment of sentence affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/20/2015