J-S67038-16

*Former Justice specially assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

RAFAEL L. PERALTA

Appellant No. 3020 EDA 2015

Appeal from the Judgment of Sentence September 4, 2015

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0013157-2014

BEFORE: FORD ELLIOTT, P.J.E., RANSOM, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.: FILED SEPTEMBER 20, 2016

This is an appeal from the judgment of sentence entered in the Court 

of Common Pleas of Philadelphia County following Appellant’s conviction at a 

bench trial on a single count of arson, failure to prevent a catastrophe, 

risking a catastrophe, criminal mischief, and possessing an instrument of 

crime, as well as two counts of conspiracy (one to commit arson and one to 

commit aggravated assault), aggravated assault, simple assault, and 

reckless endangerment.1 On appeal, Appellant presents sufficiency of the 

evidence claims. After a careful review, we vacate Appellant’s sentence for 

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1 18 Pa.C.S.A. §§ 3301, 3303, 3302, 3304, 907, 903, 2702, 2701, and 

2705, respectively. 
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conspiracy to commit aggravated assault but affirm the judgment of 

sentence in all other respects. 

The relevant facts and procedural history are as follows: Appellant 

was arrested in connection with an incident occurring on October 20, 2014, 

at 256 East Ontario Street in Philadelphia. On May 21, 2015, and July 2, 

2015, the trial court conducted a bifurcated bench trial, at which Appellant 

was represented counsel. 

At trial, Harold Holland testified that, on October 19, 2014, he and his 

friend, Alvia Jones, cleaned his brother’s house, located at 256 East Ontario 

Street, in preparation for the arrival of new tenants. N.T., 5/21/15, at 13. 

Since it was late, Mr. Holland and Ms. Jones decided to stay overnight in a 

second-floor back bedroom. Id. at 13-14. 

Mr. Holland testified that, suddenly, at approximately 2:20 a.m. on 

October 20, 2014, he was awakened when a bottle, which contained a 

flaming rag and a combustible, was thrown through the closed side window. 

Id. at 14-15. Mr. Holland indicated the bottle broke the window’s glass, 

landed about a foot from where he was sleeping, and began a fire in the 

bedroom. Id. at 15-16. As the fire began to spread, the house’s fire 

detectors went off, and Mr. Holland tried to control the flame by covering it 

with a blanket. Id. at 16. Mr. Holland indicated the fire department arrived 

at the residence within ten minutes of the fire detectors going off, the 
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firefighters entered by breaking down the front door, and they completely 

extinguished the flames. Id. at 16-17. 

Mr. Holland testified that, as a result of the bottle being thrown into 

the house, in addition to the window and front door being damaged, the 

carpet in the bedroom and the walls of the bedroom were burnt. Id. at 18-

19. 

On cross-examination, Mr. Holland indicated that he was not burned or 

physically injured as a result of the incident; however, he was “shaken up.” 

Id. at 25. When asked whether he knew Appellant, Mr. Holland agreed that 

he had never seen him prior to the criminal proceedings. Id. at 26. 

Ms. Jones confirmed that she and Mr. Holland were in the bedroom at 

issue when a bottle containing a combustible “cocktail” was thrown through 

the bedroom window at approximately 2:20 a.m. Id. at 31-32. The glass 

bottle was flaming, and it caught the bedroom rug and wall on fire. Id. at 

33. Ms. Jones indicated that, when she looked out the window, she saw that 

the police were already at the house. Id. She noted that she was not 

injured by the fire. Id.

On cross-examination, Ms. Jones clarified that, prior to the bottle 

being thrown into the bedroom, Mr. Holland was asleep but she was awake. 

Id. at 35. She had been watching television in the bedroom and turned it 

off just minutes before the bottle was thrown through the window. Id. She 
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confirmed that she did not know Appellant and had not seen him prior to 

trial. Id. at 36. 

Oliver Nelson testified that he owns the property at issue, and on 

October 19, 2014, he was at the house with his brother, Mr. Holland, and his 

friend, Ms. Jones, who were cleaning the house for him. N.T., 7/2/15, at 6-

8. He indicated that he gave them permission to stay overnight at the 

residence. Id. at 7.

Mr. Nelson indicated that, during the early morning hours of October 

20, 2014, he received a telephone call from the fire department indicating 

“something had happened” and he needed to get to the house immediately. 

Id. Upon arrival at the residence, Mr. Nelson noticed that, unlike the night 

before, the bedroom was filled with smoke, a rug was burnt, a bedroom wall 

was scorched, a window was broken, and the front door had been broken 

down. Id. at 9. 

Mr. Nelson testified that, although he had insurance coverage on the 

house, the proceeds did not cover the full cost of the necessary repairs. Id.

at 11. He indicated he did not know Appellant and had no reason to know 

why he would throw a flaming bottle into his house. Id.

Police Officer William Branish testified that, on the night in question, 

he was in uniform but in an unmarked police vehicle. Id. at 15-16. He 

indicated that he had just picked up the unmarked police vehicle and was on 

his way back to his police district when the following occurred: 
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As I was sitting [at a red traffic] light, I observed two 

males in dark clothing toss what looked to be fire balls at a 

house, about, approximately, maybe three or four of them. So 

I’m sitting there watching in disbelief. I was just watching this, 

and I observed through my rear-view mirror a marked police car 

coming up behind me.

At that time the light changed [to] green. I went through 

the light. The police car behind me followed me at that time. I 

got down about mid-block. As I went through the light, both 

males—I assume they seen [sic] [the] police car behind me 

followed me; not necessarily me, but the police car behind me.

They start[ed] running down “B” Street towards the 26th

District. I guess that would be south, the way I was traveling. I 

sped up, and jump[ed] out of my car. When I jumped out of the 

car, I ran towards the males. And one stopped, who is 

[Appellant], and the other one continued to run.

I told [Appellant]—there was approximately, maybe 12 

feet between us. I told him to stop. I took out my Tazer [sic] 

and told him to stop and not to run anymore.

At that time the other officer exited and came up behind 

me. Within that time, [Appellant] ran northbound on “B” Street. 

He ran back up. I told the other officer, I’m going to start 

chasing him. He said, Yes. So I ran back to my unmarked car.

At that time I observed [Appellant] running up “B” Street 

and make a left on Ontario Street where I had initially seen him 

at the corner. I got in the car, and on that same block, there is 

the next light. I hit that light. It was red. 

At that time I observed a gray Audi traveling at a high rate 

of speed. It went through the light—well, it was already a green 

light. It went through. And out of curiosity, I said, I’m going to 

follow the car.

So I made a right there. At the following street—I’m not 

sure of the street, what it was—that car made a right. I followed 

the car. The car made a right. I made a right. It stopped midblock, and that’s when I seen [sic] [Appellant]. The passenger 

door opened. He jumped in the car, and then he proceeded to 

drive away. 

Id. at 16-17. 
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Officer Branish testified that he followed the car and radioed 

information as to his location. Id. at 18. Within five or six blocks, the car 

stopped as marked police cruisers approached up the street. Id. Officer 

Branish approached the vehicle and discovered a female driver with 

Appellant sitting in the passenger side. Id. Officer Branish arrested 

Appellant, who was cooperative but sweating profusely. Id. at 18-19. 

Officer Branish clarified that, when he was originally stopped at the red 

light, he observed two individuals; both of whom were throwing flaming 

bottles. Id. at 43. He specifically testified he saw Appellant throwing a 

bottle. Id. 

Police Officer Adam Viola testified that he was on duty, in uniform, and 

driving a marked police car at the time in question. Id. at 46. He testified 

that he observed the following:

Your Honor, around approximately 2:20 a.m., I was 

driving southbound on “B” Street. I observed two black males 

throwing objects that were on fire at the residence, 256 East 

Ontario. 

As I approached the location, the gentlemen, they looked 

at me, saw the police car, obviously, and stood there for 

approximately 30 seconds, and then fled on foot running 

southbound on “B” Street. 

He was accompanied by another male, an unidentified 

male. 

Id. at 46-47. 

Officer Viola reiterated that:

I observed [Appellant] and the other male throwing two or three 

items that were on fire. As I approached them, they kind of got 

shocked. So they stood there for about 30 seconds. Like I said, 
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as I got closer to them, [Appellant] was about five or six feet 

from me. At that point he took off running southbound on “B.” 

Id. at 48. 

Officer Viola indicated that he then saw Appellant run westbound on 

Ontario Street. Id. at 49. Officer Viola, who was chasing Appellant in his 

car, lost sight of Appellant; however, after “maybe a minute, Officer Branish 

had made a car stop on 3500 2nd Street.” Id. Officer Viola observed that 

Appellant was in the stopped car, and he told Officer Branish “that was 

indeed the male that I did see throwing the objects that were on fire at the 

house.” Id. at 49-50. 

When asked specifically how many flaming objects he had observed 

Appellant throw at the house, Officer Viola responded “[a]pproximately two 

to three.” Id. at 50. Additionally, Officer Viola indicated that, when 

Appellant was stopped by Officer Branish, he was sweating profusely and 

“[h]is chest was pumping pretty quick.” Id. Officer Viola admitted that the 

second male who had been seen throwing flaming objects at the house was 

never apprehended. Id.

On cross-examination, Officer Viola noted that the two men, who he 

observed throwing flaming items at the house, were standing in a vacant lot, 

which was located next to the house. Id. at 57. 

Police Officer Christopher Thompson testified that he was on duty, 

and, after receiving radio information, he responded to the subject house. 

He indicated the following: 
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When I arrived at the location, there was a fire spread to 

the outside of the ground level. The grass was on fire. Also, I 

seen [sic] a female complainant from the second-story window 

yelling for help. There was smoke coming out of the window. 

And I could also see an orange, amber lighting as if there was 

fire in that room. 

Id. at 59. Officer Thompson testified that he did not observe any civilians or 

police outside of the house when he arrived. Id. 

Lieutenant Burton,2a fire marshal, testified that he observed the 

bedroom and everything was consistent with a firebomb being thrown in 

through the window. Id. at 68. He opined that one firebomb was thrown 

into the residence while others were found outside of the property. Id.

Lieutenant George Werez, an assistant fire marshal who is an expert in 

the use of dog detection for accelerants, testified that he transported the 

trained fire dog to the scene and, on the second floor rear bedroom, the dog 

alerted to the presence of an accelerant. Id. at 70-80.

At the conclusion of all testimony, the parties stipulated that the 

samples gathered from the crime scene, including floor samples from the 

bedroom, testified positive for gasoline. Id. at 83. 

The trial court convicted Appellant of the offenses indicated supra, and 

on September 4, 2015, the trial court sentenced Appellant to concurrent 

sentences of six years to twelve years in prison for arson, conspiracy to 

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2 The record does not contain the lieutenant’s given name. 
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commit arson, and both aggravated assault convictions; a concurrent five 

years to ten years in prison for conspiracy to commit aggravated assault; a 

concurrent three years to seven years in prison for risking a catastrophe; 

and no further penalty was imposed for the remaining convictions. Thus, 

Appellant was sentenced to an aggregate of six years to twelve years in 

prison. This timely appeal followed, and all Pa.R.A.P. 1925 requirements 

have been met. 

Appellant presents sufficiency of the evidence claims. Our standard for 

reviewing challenges to the sufficiency of the evidence is well settled.

The standard we apply in reviewing the sufficiency of the 

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 fact-finder 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 

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 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. Caban, 60 A.3d 120, 132–33 (Pa.Super. 2012) 

(quotation omitted). 
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Appellant’s first claim is the evidence was insufficient to sustain his 

conviction for conspiracy to commit aggravated assault since there is no 

evidence that he “entered into an agreement with another person the object 

of which was to cause or intend to cause serious bodily injury to another[.]”3 

Appellant’s Brief at 15. Appellant also claims the evidence was insufficient to 

sustain his convictions for aggravated assault as to Mr. Holland and Ms. 

Jones, since there is no evidence Appellant acted with the specific intent to 

cause serious bodily injury to the victims. In this regard, Appellant claims 

there is no evidence that either he or his cohort knew or had reason to know 

the house was occupied. 

18 Pa.C.S.A. § 903 provides the following: 

(a) Definition of conspiracy.—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. 

Our Supreme Court has indicated that:

To sustain a criminal conspiracy conviction, the Commonwealth 

must establish a defendant entered into 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 the 

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3 We have renumbered Appellant’s issues for the ease of discussion. 
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conspiracy's furtherance. 18 Pa.C.S.[A.] § 903. 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, 602 Pa. 33, 38–39, 977 A.2d 1103, 1105–06 

(2009) (footnote and citation omitted). 

In most cases of conspiracy, it is difficult to prove an explicit or formal 

agreement; hence, the agreement is generally established via circumstantial 

evidence, such as by “‘the relations, conduct, or circumstances of the parties 

or overt acts on the part of co-conspirators.’” Commonwealth v. Sanchez, 

623 Pa. 253, 303, 82 A.3d 943, 973 (2013) (quotation omitted). Once a 

conspiracy is established, the actions of each co-conspirator may be imputed 

to the other conspirators. In this regard, “[t]he law in Pennsylvania is 

settled that each conspirator is criminally responsible for the actions of his 

co-conspirator, provided that the actions are accomplished in furtherance of 

the common design.” Commonwealth v. Baskerville, 681 A.2d 195, 201 

(Pa.Super. 1996).

Moreover, as this Court has noted “[c]onspiracy to commit a crime and 

the underlying crime itself are two entirely separate offenses with separate 

elements required for each.” Commonwealth v. Thomas, 65 A.3d 939, 

943 (Pa.Super. 2013) (quotation marks and quotation omitted). 

With regard to aggravated assault, Appellant was convicted of two

counts under 18 Pa.C.S.A. § 2702(a)(1), which provides the following:
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(a) Offense defined.--A person is guilty of aggravated assault 

if he:

(1) attempts to cause serious bodily injury to another, or 

causes such injury intentionally, knowingly or recklessly under 

circumstances manifesting extreme indifference to the value of 

human life[.]

18 Pa.C.S.A. § 2702(a)(1). 

Serious bodily injury is defined as “bodily injury which creates a 

substantial risk of death or which causes serious, permanent disfigurement, 

or protracted loss or impairment of the function of any bodily member or 

organ.” 18 Pa.C.S.A. § 2301. Where, as in the case sub judice, the victims 

do not suffer serious bodily injury: 

the charge of aggravated assault can be supported only if the 

evidence supports a finding of an attempt to cause such injury. 

A person commits an attempt when, with intent to commit a 

specific crime, he does any act which constitutes a substantial 

step toward the commission of that crime. An attempt under 

Subsection 2702(a)(1) requires some act, albeit not one causing 

serious bodily injury, accompanied by an intent to inflict serious 

bodily injury. 

Commonwealth v. Martuscelli, 54 A.3d 940, 948 (Pa.Super. 2012) 

(quotations and quotation marks omitted). 

The Crimes Code defines the mens rea of “intent” as follows:

A person acts intentionally with respect to a material element of 

an offense when:

(i) if the element involves the nature of his conduct or a 

result thereof, it is his conscious object to engage in conduct of 

that nature or to cause such a result; and

(ii) if the element involves the attendant circumstances, he 

is aware of the existence of such circumstances or he believes or 

hopes that they exist.

18 Pa.C.S.A. § 302(b)(1). 
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In the case sub judice, in rejecting Appellant’s specific sufficiency of 

the evidence claims as to conspiracy to commit aggravated assault, the trial 

court cogently indicated the following: 

Instantly, the Commonwealth presented sufficient evidence 

to establish that Appellant committed the crime of Conspiracy to 

Commit Aggravated Assault insofar as it showed that he, 

together with another person, lobbed firebombs into a residential 

structure occupied by two individuals. Upon seeing a police car, 

both men simultaneously fled. Their concerted actions during 

and after the incident are sufficient to find Appellant guilty of 

conspiracy to commit Aggravated Assault as it establishes that 

they were acting in conformity with a preconceived plan, the 

object of which was to firebomb the residence. Those actions 

establish intent and state of mind because the only room into 

which a firebomb was thrown was in the bedroom occupied by 

the two victims, one of whom was watching television at the 

time, the light of which illuminated the room. This fact alone 

strongly suggests that the two perpetrators were aware the 

room they targeted was occupied and that they together 

conspired to harm whoever might be inside.

Trial Court Pa.R.A.P. 1925(a) Opinion, filed 3/10/16, at 9-10.

We agree with the trial court in this regard. Specifically, we conclude 

that, viewing the evidence in the light most favorable to the Commonwealth, 

as verdict winner, the evidence supports Appellant’s conviction for 

conspiracy to commit aggravated assault. Thomas, 65 A.3d at 945 (“In 

order to sustain a conviction of criminal conspiracy to commit aggravated 

assault, the Commonwealth need only establish intent to commit or aid in 

the commission of aggravated assault, an agreement with a co-conspirator, 

and an overt act in furtherance of the conspiracy.”) (citation omitted)). 
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Additionally, in rejecting Appellant’s claim the evidence does not 

sufficiently support the trial court’s determination that Appellant and his coconspirator completed the commission of two counts of aggravated assault, 

the trial court cogently indicated the following:

Th[e] evidence was also sufficient to support the two 

Aggravated Assault convictions because the act of throwing a 

firebomb into the only occupied room in the residence 

establishes that the act was committed with the requisite intent. 

In Commonwealth v. Rosado, 684 A.2d 605, 607 (Pa.Super. 

1996), Rosado, who was convicted of two counts of aggravated 

assault, argued on appeal that the evidence was insufficient to 

sustain his conviction because the victims did not suffer serious 

bodily injury and the prosecution did not prove that he acted 

with the intent to cause such injury. Rosado fired multiple shots 

through the second-floor bedroom windows of a residence. At 

the time, a husband and wife were asleep with the lights on in 

the bedroom into which the shots were fired and they awoke to 

the sound of shattering glass and plaster falling on them from 

the ceiling above. Although they were uninjured, there were 

bullet holes on both sides of the bedroom windows and on the 

walls and ceiling of the bedroom. Id. at 606-07. The Superior 

Court held that the above-referenced evidence was sufficient to 

support the fact-finder’s conclusion that Rosado’s act of 

repeatedly discharging his semi-automatic weapon into the 

lighted second-story windows of the victims’ bedroom, which had 

a light on, instead of other windows of the property 

demonstrated that Rosado had a specific intent to inflict serious 

bodily injury upon the occupants of the room. Id. at 609-10.

As in Rosado, [in this case] Appellant and his [cohort] 

threw a firebomb into the only occupied room of the property 

thereby manifesting the requisite intent to cause harm to 

whomever might be inside it. Based on this evidence, this Court 

properly concluded that the act of throwing a firebomb into [the] 

residence establishes the specific intent to inflict serious bodily 

injury. 

Trial Court Pa.R.A.P. 1925(a) Opinion, filed 3/10/16, at 10. 
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We agree with the trial court’s reasoning in this regard, and viewing 

the evidence in the light most favorable to the Commonwealth, conclude the 

evidence was sufficient to sustain Appellant’s convictions for aggravated 

assault.4

This does not end our inquiry, however, as Appellant next claims the 

evidence was insufficient to convict him on two counts of conspiracy (one to 

commit arson and one to commit aggravated assault). Specifically, he 

alleges there was but one conspiracy in this case, and the evidence does not 

support a finding of two separate conspiracies. Thus, he contends that, 

under 18 Pa.C.S.A. § 903(c), he could be sentenced on only one criminal 

conspiracy.5

Section 903(c) provides:

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4 We note the Commonwealth’s theory for the aggravated assault 

convictions was based, at least in part, on conspiratorial liability. However, 

inasmuch as Officers Branish and Viola both testified that they personally 

observed Appellant throwing firebombs at the bedroom window of the 

occupied house, we conclude that, even absent a conspiratorial agreement 

or evidence that Appellant’s firebomb was the one which successfully 

entered the bedroom window, the evidence sufficiently supports Appellant’s 

convictions for aggravated assault. Simply put, Appellant’s throwing of 

firebombs at the window of an occupied bedroom during the early morning 

hours is sufficient to establish an attempt to cause serious bodily injury to 

the occupants. See 18 Pa.C.S.A. § 2702(a)(1). 

5 Our Supreme Court has held that an appellant’s challenge to the imposition 

of separate sentences for multiple counts of conspiracy is properly presented 

as a challenge to the sufficiency of the evidence. See Commonwealth v. 

Andrews, 564 Pa. 321, 768 A.2d 309 (2001).
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(c) Conspiracy with multiple criminal objectives.--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.

18 Pa.C.S.A. § 903(c).

In determining whether a single conspiracy or multiple 

conspiracies have been established, we must consider several 

relevant factors:

The factors most commonly considered in a totality 

of the circumstances analysis of the single vs. 

multiple conspiracies issue. . . are: 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 degree to which interdependence 

is needed for the overall operation to succeed.

Commonwealth v. Barnes, 871 A.2d 812, 819 (Pa.Super. 2005) 

(quotation and citation omitted). See Commonwealth v. Koehler, 558 Pa. 

334, 737 A.2d 225 (1999). “Nonetheless, the essence of conspiracy remains 

the agreement [between the parties] to work in concert for one or more 

criminal purposes.” Koehler, 558 Pa. at 371, 737 A.2d at 245 (quotation 

and quotation marks omitted). 

Applying the above to the facts of this case, we agree with Appellant 

that the evidence was sufficient to establish a single criminal conspiracy 

only. As the trial court indicated in its Rule 1925(a) opinion:

Appellant was convicted of two counts of conspiracy: one 

for the assaults on [Mr.] Holland and [Ms.] Jones resulting from 

throwing a firebomb through the window of the room they 

occupied and a separate conspiracy for arson arising out of 
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throwing firebombs into the residence. Clearly, the acts 

committed in furtherance of those conspiracies were exactly the 

same as they shared the same location [and] time[.] Therefore, 

it is suggested that Appellant’s claim be found meritorious and 

that the judgment of sentence imposed on one of the conspiracy 

charges be arrested. 

Trial Court Pa.R.A.P. 1925(a) Opinion, filed 3/10/16, at 7 (citations and 

footnote omitted). 

Applying the relevant factors to the facts of this case, we conclude that 

the conduct of Appellant and his cohort was not two separate conspiracies, 

but was instead the the object of the same agreement or continuous 

conspiratorial relationship. 18 Pa.C.S.A. § 903(c). The agreement among 

the participants in this case to throw flaming gasoline-containing bottles at 

the house located at 256 East Ontario Street encompassed both their plan to 

commit arson and their plan to commit aggravated assault. The same overt 

acts and methods were done to accomplish both results (throwing of the 

flaming gasoline-containing bottles into and at the residence); the same 

actors took part (Appellant and the unidentified male), the acts occurred 

simultaneously at the same location, and the same objective was pursued. 

We find that these facts constitute the very circumstances envisioned by 

Section 903(c). 

Although Appellant and his co-conspirator conspired to commit both 

arson and aggravated assault by throwing the flaming objects in the 

bedroom window of the residence, these multiple crimes were the object of 

the same agreement or continuous conspiratorial relationship. 18 Pa.C.S.A. 
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§ 903(c); Commonwealth v. Savage, 566 A.2d 272, 276 (Pa.Super. 1989) 

(“Thus, when on a single occasion there is a single agreement to commit two 

crimes, e.g. murder and arson, a single conspiracy exists.”) (citation 

omitted)); Commonwealth v. Woods, 710 A.2d 626, 632 n.2 (Pa.Super. 

1998) (“Whether or not there is a single conspiracy or multiple conspiracies 

is not dependent upon the number of crimes committed.”) (citation 

omitted)). 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); 

Commonwealth v. Davis, 704 A.2d 650, 654-55 (Pa.Super. 1997). 

Having so concluded, this Court may affirm, modify, vacate, set aside 

or reverse any order brought before it and may remand the matter. 42 

Pa.C.S.A. § 706. “If our disposition upsets the overall sentencing scheme of 

the trial court, we must remand so that the court can restructure its 

sentence plan.” Commonwealth v. Thur, 906 A.2d 552, 569 (Pa.Super. 

2006) (citation omitted). “By contrast, if our decision does not alter the 

overall scheme, there is no need for a remand.” Id. Here, we conclude that 

we may modify the trial court’s sentence and it is unnecessary to remand for 

the trial court to do so.

In our decision to modify the sentence imposed, we note that 

Appellant’s conviction for conspiracy to commit arson was graded as a firstdegree felony (F1), and the trial court imposed a sentence of six years to 
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twelve years in prison. Appellant’s conviction for conspiracy to commit 

aggravated assault was graded as a felony of the second-degree (F2), and 

the trial court imposed a sentence of five years to ten years in prison. Since 

the conspiracy to commit arson conviction was graded as a more serious 

offense, we vacate the sentence imposed on the charge of conspiracy to 

commit aggravated assault. See 18 Pa.C.S.A. § 905(a) (wherein the 

legislature has indicated that a conspiracy with multiple objects is to be 

graded the same and degree as the most serious offense which is the 

object).

In so doing, we note that we have not upset the trial court’s 

sentencing scheme. Thur, supra. The trial court imposed concurrent 

sentences for Appellant’s two conspiracy convictions, thus it is unnecessary 

for us to remand this matter for resentencing.6 

For all of the foregoing reason, we affirm Appellant’s convictions but 

vacate his separate sentence for conspiracy to commit aggravated assault. 

His judgment of sentence is affirmed in all other respects. 

Judgment of Sentence for Conspiracy to Commit Aggravated Assault 

Vacated; Judgment of Sentence Affirmed in all other Respects.

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6 We note that, in its Rule 1925(a) opinion, the trial court acknowledges its 

concurrent sentencing scheme and suggests that, assuming we agree 

Appellant should have been sentenced on a single charge of conspiracy, “no 

remand for resentencing is required[.]” Trial Court Pa.R.A.P. 1925(a) 

Opinion, filed 3/10/16, at 7 n.3. 
J-S67038-16

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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/20/2016