J-S38026-24
2025 PA Super 179
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MARK WELLMAN :
:
Appellant : No. 2670 EDA 2023
Appeal from the Judgment of Sentence Entered June 15, 2023
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0000127-2020
BEFORE: STABILE, J., BECK, J., and STEVENS, P.J.E.*
OPINION BY BECK, J.: FILED AUGUST 18, 2025
Mark Wellman (“Wellman”) appeals from the judgment of sentence
imposed by the Philadelphia County Court of Common Pleas (“trial court”)
following his convictions of second-degree murder, robbery, conspiracy, and
related crimes. Wellman’s counsel, Attorney Michael I. McDermott,
(“Counsel”) originally filed in this Court a petition to withdraw and a brief
pursuant to Anders v. California, 386 U.S. 738 (1967), and
Commonwealth v. Santiago,
978 A.2d 349 (Pa. 2009). Because one of the
issues identified by Counsel was not wholly frivolous, we denied Counsel’s
petition and remanded for the filing of an advocate’s brief. See
Commonwealth v. Wellman,
334 A.3d 389, *6-8 (Pa. Super. 2025) (non-
precedential decision) (citing Trial Court Opinion, 2/6/2024, at 3-9). After a
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* Former Justice specially assigned to the Superior Court.
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delay,1 Counsel has filed an advocate’s brief arguing that the evidence was
insufficient to convict Wellman of conspiracy to commit second-degree
murder. The Commonwealth filed a responsive brief, contending for the first
time that the crime of conspiracy to commit second-degree murder is not a
cognizable offense. Upon review, we conclude that the Commonwealth
introduced sufficient evidence to convict Wellman of conspiracy to commit
second-degree homicide and that such a crime is cognizable pursuant to the
reasoning set forth in Commonwealth v. Fisher,
80 A.3d 1186 (Pa. 2013).
We therefore affirm Wellman’s judgment of sentence.
As we set forth in our prior decision,2 on October 5, 2019, after arguing
with Renee Edwards, Wellman returned to Edwards’ apartment with his
brother, Dominique Wellman (“Dominique”). After Edwards let him into the
apartment, Wellman pulled a handgun from his waistband and waved it
around. Wellman repeatedly demanded money while pointing his handgun at
Edwards, Edwards’ unidentified female friend, and Anthony White, all of whom
were inside Edwards’ apartment. Dominique then joined him by pointing what
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1 Counsel did not file the brief within the timeframe set by this Court,
necessitating a remand to determine whether Counsel had abandoned
Wellman. After the trial court ascertained that Counsel had not, Counsel
submitted an advocate’s brief on April 25, 2025.
2 For a full recitation of the facts and procedural history, see Wellman, 334
A.3d 389, at **1-2 (citing Trial Court Opinion, 2/6/2024, at 3-10).
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appeared to be a trash bag-covered rifle 3 towards the trio as Wellman patted
each person down. After robbing the three individuals of items—including
their wallets, watches, cell phones, and keys—Wellman knocked on the
bedroom door of Curtis Hill and insisted that Hill join the others. When Hill
emerged and refused to give the brothers anything, Wellman pushed Hill down
on a bed and complained that Hill was defiant. One of the women told the
brothers that Hill had a computer in his room, which Dominque retrieved.
Wellman and Dominique grew increasingly agitated regarding the small yield
of the robbery. Hill tried to get up, which prompted Wellman to exclaim that
he was sick of Hill. While standing one to two feet away, Wellman pointed the
gun at Hill’s head and pulled the trigger, killing him.
Afterwards, the brothers ordered the other three victims to lay down
and forced White to remove his pants before leaving with the items they stole.
Shortly thereafter, White left the apartment without pants or shoes, flagged
down nearby police officers, and reported the robbery. White led the officers
back to the apartment, where they discovered Hill’s body and a disposable
glove. Meanwhile, after a security guard saw Wellman and Dominique running
down a nearby alley shedding clothing and discarding a revolver, police
officers apprehended Wellman and Dominique, who were hiding in the alley.
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3 Dominque told the police that the trash bag actually contained a liquor bottle
that he held like a weapon.
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The officers discovered each with a stolen watch from White on his
person; Dominque also had White’s phone. Officers brought White and
Edwards to the alley. White identified Wellman and Dominique as the people
who had shot Hill and committed the robbery. In front of the officers, Wellman
threatened Edwards and called her a rat and a snitch. The officers located
several items discarded by the brothers in the alley, including a jacket, a plaid
shirt, and a backpack containing two computers, a white t-shirt, a face mask,
and a revolver. Subsequent testing indicated that gunshot residue was
present on the jacket and DNA from either Wellman or Dominque was present
on the shirts, backpack, and face mask.
The Commonwealth established the above facts at a jury trial through
forensic evidence, the testimony of police officers and White, and a video-
recorded statement Dominque provided to police. The Commonwealth played
Dominque’s statement for the jury after Dominque claimed on the stand that
he remembered nothing about the incident, despite having pled guilty to
several crimes connected to it and implicating himself and Wellman in his
statement to the police. Wellman testified on his own behalf, placing himself
near Edwards’ apartment but denying that he robbed or killed anyone.
The jury convicted Wellman of four counts of robbery, three firearms
offenses, conspiracy, and second-degree murder. On June 15, 2023, the trial
court imposed a mandatory sentence of life imprisonment without the
possibility of parole for the murder charge, and a consecutive sentence of five
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to ten years of incarceration for one of the robberies. No further penalty was
imposed on any other counts. Wellman’s trial counsel filed a post-sentence
motion in arrest of judgment, which was denied by operation of law. Trial
counsel filed a timely notice of appeal. Subsequently, the trial court appointed
Counsel as Wellman’s appellate counsel. Counsel complied with the order to
file a Rule 1925(b) statement.
Counsel filed an Anders brief, asserting that he was unable to identify
any non-frivolous issues to raise on appeal. See Anders Brief at 14. This
Court disagreed with Counsel’s assessment in one respect, concluding that a
challenge to the sufficiency of the evidence regarding Wellman’s conviction for
conspiracy to commit second-degree homicide would not lack any basis in law
or fact. Wellman, 334 A.3d 389, at *8 (quoting Commonwealth v.
Blauser,
166 A.3d 428, 434 (Pa. Super. 2017) (“While ultimately, appellant
may not be entitled to any relief, we cannot say that the appeal is ‘wholly
frivolous,’ i.e., without any basis in law or fact.”)). To the contrary, we
observed that this Court has stated that whether conspiracy to commit
second-degree murder constituted a cognizable offense was an open question
that Pennsylvania’s appellate courts had yet to answer.
Id. at *7 (citing
Commonwealth v. Mitchell,
135 A.3d 1097, 1101 n.2 (Pa. Super. 2016)).
We further noted that this Court had previously held that where a single
conspiracy involved multiple criminal objectives, the defendant “could only be
found guilty of conspiracy to commit … [the] crime [constituting] the
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underlying foundation of the agreement upon which the conspiracy charges
were based.” Id. at *8 (quoting Commonwealth v. Rivera,
238 A.3d 482,
490 (Pa. Super. 2020), which in turn quoted Commonwealth v. Barnes,
871
A.2d 812, 821 (Pa. Super. 2005)). We directed Counsel to submit an
advocates’ brief “concerning the validity” of this conviction, “as well as any
other non-frivolous issues that counsel may identify.”
Id.
Counsel complied, submitting an advocate’s brief challenging the
sufficiency of the evidence to support Wellman’s conviction of conspiracy to
commit second-degree murder and asserting that he identified no other issue
of merit. Advocate’s Brief at 4, 13-16. Wellman argues that the information
indicated that the Commonwealth was charging him with conspiracy to commit
“murder/robbery,” but that the facts established only that he and his brother
initially planned to rob the victims without a plan to murder Hill. Id. at 14.
Although the trial court “properly instructed” the jury on the elements of a
conspiracy, Wellman contends that the verdict sheet submitted to the jury
“only included the conspiracy to commit murder and not the robbery.” Id. at
14-15. Wellman maintains that the conspiracy’s main objective was robbery,
and pursuant to Rivera, he could only be convicted of a conspiracy premised
upon robbery, not murder. Id. at 15.
We abide by the following standard in reviewing a challenge to the
sufficiency of the evidence:
As a general matter, our standard of review of sufficiency claims
requires that we evaluate the record in the light most favorable to
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the verdict winner giving the prosecution the benefit of all
reasonable inferences to be drawn from the evidence. Evidence
will be deemed sufficient to support the verdict when it establishes
each material element of the crime charged and the commission
thereof by the accused, beyond a reasonable doubt.
Nevertheless, the Commonwealth need not establish guilt to a
mathematical certainty. Any doubt about the defendant’s guilt is
to be resolved by the fact finder unless the evidence is so weak
and inconclusive that, as a matter of law, no probability of fact
can be drawn from the combined circumstances.
Commonwealth v. Sebolka, 205 A.3d 329, 336-37 (Pa. Super. 2019)
(citation omitted). Whether the evidence is sufficient to sustain a conviction
presents a pure question of law for which our standard of review is de novo.
Commonwealth v. Akeley,
320 A.3d 106, 110 (Pa. Super. 2024).
The statute criminalizing conspiracy defines the crime as follows:
(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. § 903(a).
In order to prove the existence of a criminal conspiracy, the
Commonwealth must demonstrate that the defendant: (1)
entered an agreement to commit or aid in an unlawful act with
another person or persons, (2) with a shared criminal intent and,
(3) an overt act was done in furtherance of the conspiracy.
Commonwealth v. Chambers, 188 A.3d 400, 409–10 (Pa. 2018) (quotation
marks and citation omitted); see also 18 Pa.C.S. § 903(a), (d). As conspiracy
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is itself a substantive crime, “[a] defendant may be convicted of both
conspiracy and the offense that was the object of the conspiracy.”
Commonwealth v. Rios, 684 A.2d 1025, 1030 (Pa. 1996).
“The essence of a criminal conspiracy, which is what distinguishes this
crime from accomplice liability, is the agreement made between the co-
conspirators.” Commonwealth v. Murphy, 844 A.2d 1228, 1238 (Pa. 2004).
It is essential that the co-conspirators have a shared criminal intent. See
Commonwealth v. Weston, 749 A2d. 458, 463 (Pa. 2000). “[T]he
agreement must rest upon the mutual specific intent to carry out a particular
criminal objective.” Chambers,
188 A.3d at 410.
A conspiracy may have multiple criminal objectives. See 18 Pa.C.S.
§ 903(c). A person who conspires “to commit a number of crimes,” however,
“is guilty of only one conspiracy so long as such multiple crimes are the object
of the same agreement or continuous conspiratorial relationship.” Id.; see
also Commonwealth v. Andrews, 768 A.2d 309, 314 (Pa. 2001) (noting
that section 903(c) requires a factual assessment of “either the conspiratorial
agreement or the relationship of the conspirators”); Commonwealth v.
Koehler,
737 A.2d 225, 245 (Pa. 1999) (listing factors to help determine
whether the evidence establishes a single conspiracy or multiple conspiracies).
Given the nature of a criminal enterprise, the Commonwealth may rely
upon circumstantial evidence to prove the existence and scope of the
agreement, as it rarely will have direct evidence to support that element of
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the offense. Andrews, 768 A.2d at 315. While the Commonwealth must
show “more than mere association,” it may “inferentially establish[]” the
conspiracy by “the relation, conduct or circumstances of the parties,”
combined with the “overt acts on the part of co-conspirators.”
Commonwealth v. Roux,
350 A.2d 867, 870 (Pa. 1976).
Separately, “a person is guilty of criminal homicide if he intentionally,
knowingly, recklessly or negligently causes the death of another human
being.” 18 Pa.C.S. § 2501. The Crimes Code divides homicide into degrees
of culpability. Murder of the second degree, also known as felony murder, is
a criminal homicide committed while a defendant was engaged as a principal
or an accomplice in the perpetration of a felony. 18 Pa.C.S. § 2502(b). 4 The
statute defines perpetration of a felony as “[t]he act of the defendant in
engaging in or being an accomplice in the commission of, or an attempt to
commit, or flight after committing, or attempting to commit robbery, rape, or
deviate sexual intercourse by force or threat of force, arson, burglary or
kidnapping.” 18 Pa.C.S. § 2502(d); see also 18 Pa.C.S. § 3701(a)(1)(iv) (“A
person is guilty of robbery, if in the course of committing a theft, he … inflicts
serious bodily injury upon another.”).
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4 Cf. 18 Pa.C.S. § 2502(a) (indicating that murder of the first degree is a
criminal homicide that is “committed by an intentional killing”), (c) (providing
that murder of the third degree is all other types of murder, i.e., not an
intentional killing or a killing during a perpetration of the enumerated
felonies).
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Second-degree murder does not require a specific intent to kill. Rivera,
238 A.3d at 501 (citation omitted). Rather, a person has the requisite intent
for second-degree murder if he has a “wanton disregard for the fact that death
might result which is inherent in the commission of a dangerous felony.”
Id.
(emphasis added). Thus, the “malice or intent to commit the underlying crime
is imputed to the killing to make it second-degree murder, regardless of
whether the defendant actually intended to physically harm the victim.”
Id.
at 500. Stated another way,
[w]hen an actor engages in one of the statutorily enumerated
felonies and a killing occurs, the law, via the felony-murder rule,
allows the finder of fact to infer the killing was malicious from the
fact that the actor engaged in a felony of such a dangerous nature
to human life because the actor, as held to a standard of a
reasonable man, knew or should have known that death might
result from the felony.
Commonwealth v. Legg, 417 A.2d 1152, 1154 (Pa. 1980).
Here, Dominque’s police statement established that he and Wellman
agreed to rob the people in the apartment and that Wellman was the shooter.
Based upon his statement and other testimony, the evidence established that
Wellman left Edwards’ apartment and returned with his brother. The duo
brandished actual and simulated guns and worked together to threaten and
search each victim until they achieved a satisfactory amount of proceeds.
Wellman shot Hill while trying to rob him after he and his brother grew
frustrated that their expedition was not yielding a greater bounty. The pair
then left and ran down the alley together, shedding evidence as they went.
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Given these facts, the Commonwealth sufficiently proved through
circumstantial evidence that Wellman and Dominque intended to promote or
facilitate second-degree murder by agreeing with each other that “they or one
or more of them will engage in conduct which constitutes such crime,” i.e.,
stealing personal property from the occupants of Edwards’ apartment through
force if necessary while armed with actual firearms. See 18 Pa.C.S. § 903(a),
(a)(1). The evidence was sufficient for the jury to infer that their agreement
encompassed not only robbery but also second-degree murder, as the duo
“knew or should have known that the possibility of death accompanied a
dangerous undertaking,” see Commonwealth v. Lambert, 795 A.2d 1010,
1022-23 (Pa. Super. 2002) (en banc), particularly as Wellman brought and
used an operational firearm to commit the underlying crime.
Our decision in Rivera does not require reversal. In Rivera, four
individuals formed a scheme to rob a victim through threat of force, arming
themselves with a gun to do so. Rivera, 238 A.3d at 489-90. The group shot
and killed the victim during a home invasion robbery.
Id. Following a jury
trial, the trial court sentenced Rivera to concurrent terms of incarceration: life
without parole for second-degree murder, ten to twenty years for robbery, ten
to twenty years for burglary, twenty to forty years for conspiracy to commit
criminal homicide, and ten to twenty years for conspiracy to commit burglary.
Id. at 490-91. The court also sentenced Rivera to a consecutive term of ten
to twenty years’ imprisonment for conspiracy to commit robbery.
Id.
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Rivera raised a number of arguments, none of which garnered him any
relief.5 The Rivera Court then considered sua sponte whether he was subject
to an illegal sentence because the trial court sentenced him separately on
three counts of conspiracy. Id. at 503. Section 903(c) provides that a person
conspiring to commit multiple crimes “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. § 903(c). The Court concluded that
section 903(c) prohibited convictions for multiple counts of conspiracy when
all conspiracy counts pertained to one conspiracy derived from the “continuous
conspiratorial relationship.” See Rivera,
238 A.3d at 503-04. Concluding
that Rivera received an illegal sentence, this Court vacated two of the three
conspiracy convictions, leaving only the conspiracy to commit robbery intact.
Id.
The Rivera Court selected robbery as the surviving conspiracy
conviction based upon this Court’s prior decision in Barnes, stating:
The agreement among Appellant and his co-defendants to rob
Victim at gunpoint encompassed their plan to break into Victim's
home (burglary) and take his money and drugs at gunpoint
(robbery). The homicide (second-degree murder) that occurred
during the robbery was in furtherance of the single conspiratorial
goal: to rob Victim. As such, under subsection 903(c), Appellant
only could be found guilty of conspiracy to commit robbery, “that
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5 This Court acknowledged that whether one could conspire to commit
second-degree murder was an unsettled question in this jurisdiction, but we
left this question unresolved because Rivera did not raise the claim on appeal
and the Court ultimately vacated his conviction on a different basis. Rivera,
238 A.3d at 490 n.4.
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crime being the underlying foundation of the agreement upon
which the conspiracy charges were based.”
Id. at 504 (quoting Barnes,
871 A.2d at 821).
At first blush, this supports Wellman’s contention that, at most, he could
be convicted of conspiracy to commit robbery, not second-degree murder.
Upon further research and consideration, however, we must conclude that the
portion of the holding permitting conviction of conspiracy only for the crime
that was the basis for the agreement is of dubious precedential value. Our
Supreme Court expressly disapproved of this proposition when affirming our
decision in Barnes:
We emphasize, however, that our decision should not be read as
an approval of the Superior Court’s approach of selecting an
overarching conspiratorial object to define the extant conspiracy
conviction in the circumstances presented, since this approach
appears to be in tension with the Legislature’s directive that a
conspiracy with multiple objects is to be of the same grade and
degree as the most serious offense which is an object.
Commonwealth v. Barnes, 924 A.2d 1202, 1203 (Pa. 2007) (Opinion Per
Curiam) (emphasis in original) (citing 18 Pa.C.S. § 905(a) (“Except as
otherwise provided in this title, attempt, solicitation and conspiracy are crimes
of the same grade and degree as the most serious offense which is attempted
or solicited or is an object of the conspiracy.”)).
We therefore conclude that Wellman’s first issue, while not frivolous, is
not meritorious. No relief is due.
We turn now to the Commonwealth’s request in its responsive brief that
Wellman’s conviction be vacated. See Commonwealth’s Second Brief at 9.
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Although the Commonwealth initially maintained that it sufficiently proved the
elements of conspiracy, see Commonwealth’s First Brief at 14-16, it now
contends that Wellman’s conviction must be vacated because conspiracy to
commit second-degree murder is not a cognizable criminal offense, see
Commonwealth’s Second Brief at 9. Because “conspiracy is a specific intent
crime” and second-degree murder “does not require the specific intent to kill,”
the Commonwealth asserts that a conspiracy to commit second-degree
murder “would seem to require proof that a defendant intended to perpetrate
an unintentional killing—which is logically impossible.” Id. at 11-12. In
support of this contention, the Commonwealth highlights this Court’s prior
holding that one cannot attempt to commit second-degree murder because
attempt requires specific intent and murder of the second degree “occurs
where the killing of the victim is the unintentional result of a criminal act.” Id.
(citing Commonwealth v. Geathers, 847 A.2d 730, 734 (Pa. Super. 2004)).
Additionally, the Commonwealth directs our attention to cases from other
jurisdictions that have not recognized the crime of conspiracy to commit
second-degree murder.
Id. (citing Evanchyk v. Stewart,
340 F.3d 933,
939–40 (9th Cir. 2003) (noting that under Arizona state law, proof that the
defendant had no more than the requisite intent to aid, promote, or commit
the underlying felony is insufficient to convict of conspiracy to commit first-
degree murder, which requires the specific intent to kill) and State v. Wilson,
43 P.3d 851, 853-54 (Kan. Ct. App. 2002) (holding that Kansas does not
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recognize the crime of conspiracy to commit felony murder because one
cannot “intentionally conspire to commit a crime which only requires a mens
rea of negligence or no mens rea at all”)).
The Commonwealth’s request to vacate Wellman’s judgment of
sentence for his conspiracy conviction differs from Wellman’s argument.
Essentially, the Commonwealth argues that the crime of conspiracy to commit
second-degree murder does not exist as a matter of law, whereas Wellman
argues that the Commonwealth’s evidence was insufficient to prove that he
committed the crime of conspiracy to commit second-degree murder because
the evidence at trial demonstrated that he only conspired to commit robbery,
not murder.6 Nonetheless, this Court has classified a claim that a court
sentenced a defendant for a crime that is not cognizable under Pennsylvania
law as one that implicates the legality of the sentence. Commonwealth v.
Conklin, 275 A.3d 1087, 1093 (Pa. Super. 2022) (noting that a sentence for
attempted third-degree murder, a crime that is not cognizable, is an illegal
sentence). Because the nuances of properly classifying these types of claims
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6 Wellman briefly alludes to the cognizability of the crime in his brief but does
not develop his argument or address it as a separate claim. See Wellman’s
Brief at 13 (arguing that the finding of guilt for the charge of conspiracy to
engage in murder in the second degree is “not recognized in our judicial
system”).
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can be challenging,7 and we may raise a legality of sentencing claim sua
sponte, see Commonwealth v. Hill, 238 A.3d 399, 407 (Pa. 2020), we
address the Commonwealth’s argument.
The notion that conspiracy to commit second-degree murder is not a
cognizable crime under Pennsylvania law has some support. 8 The theory is
that second-degree murder is an unintentional killing that occurs during the
commission of a felony; if the conspiracy included an agreement to kill during
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7 See, e.g., Commonwealth v. Weimer, 977 A.3d 1103, 1105-07 (Pa.
2009) (classifying a claim as a challenge to the sufficiency of the evidence to
prove conspiracy to commit third-degree murder but ultimately concluding
that the jury convicted the defendant of conspiracy to commit criminal
homicide without specifying the degree); id. at 1106 (Greenspan, J.,
concurring) (opining that a claim concerning conspiracy to commit third-degree murder may have been better framed as an “inquiry into the
comprehensiveness (or lack thereof) of the trial court’s instruction on the
conspiracy charge”); id. at 1107 (Todd, J., dissenting) (asserting that Weimer
was subject to an illegal sentence because she was convicted of the non-cognizable offense of conspiracy to commit third-degree murder).
8 See, e.g., Weimer, 977 A.3d at 1109 (Todd, J., dissenting) (opining that
conspiracy to commit third-degree murder is a non-cognizable offense and
discussing support for such position); Fisher,
80 A.3d at 1203 (Todd, J.,
dissenting) (same); Wayne R. LaFave, Criminal Law, § 12.2(c)(2), Intent to
Achieve Objective, 2 Subst. Crim. L. § 12.2(c)(2) (3d ed.) (discussing
conflicting authority regarding the issue of whether one can conspire to
commit an offense criminalizing one’s causing a death without specific intent);
see also Mitchell,
135 A.3d at 1101 n.2 (“The Crimes Code does not
expressly set forth that one can be found guilty of second-degree murder as
a conspirator. Other jurisdictions have determined that one cannot conspire
to commit felony murder. This Court has also repeatedly noted that one
cannot attempt to commit felony murder because an attempt is a specific
intent crime, as is conspiracy. We note, however, that our Supreme Court
has concluded that one can conspire to commit third-degree murder, which
does not require proof of a specific intent to kill.”) (citations omitted).
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the commission of the felony, then the co-conspirators would intend to kill,
thereby taking the act into the realm of first-degree murder. A majority of
our Supreme Court, however, has rejected this argument in the context of
third-degree murder. Third-degree murder is a homicide that the
Commonwealth must prove was committed with malice, but like second-
degree murder, it need not prove or address the presence or absence of an
intent to kill. Fisher, 80 A.3d at 1191 (citing Commonwealth v. Meadows,
787 A.2d 312, 317 (Pa. 2001)). According to the Supreme Court, third-degree
murder is “an intentional act, characterized by malice, that results in death,
intended or not.”
Id. While the “elements of third[-]degree murder absolutely
include an intentional act,” the Court reasoned, it need not be “an act defined
by the statute as intentional murder. The act sufficient for third degree is still
a purposeful one, committed with malice, which results in death—clearly, one
can conspire to such an intentional act.”
Id. (emphasis in original).
The Fisher Court specifically rejected the notion that the “language of
Pennsylvania’s conspiracy statute focuses on the actor’s intent to promote or
facilitate the commission of a ‘crime,’” thereby requiring the actor to intend to
commit the underlying crime in order to be guilty of conspiracy for such crime.
Id. at 1194-95. Rather, the Supreme Court held that the statutory language
stating that “the defendant must have ‘the intent of promoting or facilitating’
a crime and must ‘engage in conduct which constitutes such crime,’” means
that “[o]ne does not conspire to commit a denominated offense; one conspires
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to engage in certain conduct.” Id. at 1195 (quoting 18 Pa.C.S. § 903(a),
(a)(1)). Thus, according to Fisher, when entering a conspiracy to commit
third-degree murder, the conspirator does not intend to commit or aid an
unintentional murder; rather, the conspirator “intends to [commit or] aid a
malicious act resulting in a killing.” Id. at 1194.
Under Pennsylvania law, if co-conspirators specifically agree to kill the
victim, their agreement as to the act and result indicates that they share the
“deliberate premeditated shared specific intent to commit murder,” and they
are guilty of conspiracy to commit first-degree murder. See Commonwealth
v. Wayne, 720 A.2d 456, 465 (Pa. 1998) (determining that the “precise and
deliberate actions of appellant and the two unidentified men establish a
concerted conscious decision by all three persons to join together with the
purpose of taking the [victim’s] life”). If co-conspirators agree to engage in
malicious behavior, such as an agreement to beat the victim without limiting
the extent, they have conspired to commit a malicious act and, if the victim
should die as a result, they are guilty of conspiracy to commit third-degree
murder. See Fisher,
80 A.3d at 1194-95. This Court has applied Fisher’s
reasoning to validate convictions of conspiracy for the unintentional death of
victims in cases that did not involve third-degree murder. See, e.g.,
Commonwealth v. Arrington,
247 A.3d 456, 462 (Pa. Super. 2021) (relying
upon Fisher to conclude that the crime of conspiracy to commit involuntary
manslaughter is cognizable in Pennsylvania; although the conspirators did not
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intend to cause a death, they can intend with another “to intentionally commit
an unlawful act characterized by the conscious disregard of a substantial and
unjustifiable risk (i.e. a reckless act), that results in a death that was a natural
and probable result of that act”); Commonwealth v. Carr, 227 A.3d 11, 17-
18 (Pa. Super. 2020) (relying upon Fisher to conclude that the crime of
conspiracy to commit drug delivery resulting in death is cognizable in
Pennsylvania; the conspiring parties need not specifically anticipate the death
of the user of the drug because the “conspiracy to commit the overt act of an
intentional drug delivery links the conspirators to the foreseeable consequence
that the drug user may die”); but see Commonwealth v. McClelland,
204
A.3d 436, 445 (Pa. Super. 2019) (relying upon the Weimer dissent and
Wayne, without discussion of Fisher, to hold that the crime of conspiracy to
commit homicide in general requires “proof of the specific intent to kill,”
rendering it “identical to the mens rea requirement for first[-]degree murder,”
and concluding that such crime is non-cognizable).
Second-degree murder, like third, requires a malicious act. For second-
degree murder, the malicious act is the predicate felony during which the
death occurs, whereas the malice for third-degree murder stems from the
nature of the specific act that results in death. Like third-degree murder,
section 2502(b) does not require the Commonwealth to prove or address the
presence or absence of specific intent to kill, just the intent to engage in the
malicious act that results in the victim’s death. Thus, under Fisher’s
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reasoning, a person may conspire with others to commit second-degree
murder despite the lack of a particular intent to kill. Where the parties agree
to commit a predicate felony with the “wanton disregard for the fact that death
might result,” their agreement encompasses second-degree murder as a risk
“inherent in the commission of a dangerous felony.” Rivera, 238 A.3d at 501
(quoting Commonwealth v. Olds,
469 A.2d 1072, 1076-77 (Pa. Super.
1983)). Therefore, pursuant to Fisher, the crime of conspiracy to commit
second-degree murder is cognizable, and Wellman’s sentence for this crime is
not illegal.
Based upon the foregoing, we conclude that the Commonwealth
introduced sufficient evidence to convict Wellman of conspiracy to commit
second-degree homicide and that such a crime is cognizable pursuant to the
Pennsylvania Supreme Court’s analysis in Fisher. As such, we affirm
Wellman’s judgment of sentence.
Judgment of sentence affirmed.
Date: 8/18/2025
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