: 
: 
: 
: 
: 
: 
: 
: 
: 

: 
: 
: 
: 
: 
: 
: 
: 
: 

v. 

v. 

 

 

 

 

J-A21042-22  

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 
 

COMMONWEALTH OF PENNSYLVANIA 

  IN THE SUPERIOR COURT OF 
           PENNSYLVANIA 

HRISTOPHER CORLEY       

 

Appellant 

 No. 2597 EDA 2021 

Appeal from the PCRA Order Entered December 9, 2021 
In the Court of Common Pleas of Philadelphia County Criminal Division at 
No(s):  CP-51-CR-0007418-2016 

COMMONWEALTH OF PENNSYLVANIA 

  IN THE SUPERIOR COURT OF 
           PENNSYLVANIA 

HRISTOPHER CORLEY       

 

Appellant 

 No. 29 EDA 2022 

Appeal from the PCRA Order Entered December 9, 2021 
In the Court of Common Pleas of Philadelphia County Criminal Division at 
No(s):  CP-51-CR-0007422-2016 

EFORE:  LAZARUS, J., MURRAY, J., and McCAFFERY, J. 

MEMORANDUM BY McCAFFERY, J.: 

FILED MARCH 16, 2023 

Christopher Corley (Appellant) appeals from the orders1 entered in the 

Philadelphia County Court of Common Pleas denying his first timely petition 

____________________________________________ 

1 Related to the crimes at issue in this appeal, Appellant was charged under 
two criminal dockets.  He filed two separate notices of appeal at both and has 
therefore complied with Commonwealth v. Walker, 185 A.3d 969, 977 (Pa. 
2018) (separate notices of appeal must be filed when a single order resolves 
(Footnote Continued Next Page) 

     

    C

   

     

    C

   

 

 

 

 

  B

 

  

filed  under  the  Post-Conviction  Relief  Act  (PCRA).2    In  2017,  Appellant  was 

convicted of first-degree murder, conspiracy to commit first-degree murder,3 

and related charges, and sentenced to two terms of life imprisonment and a 

consecutive term of 10 to 20 years’ imprisonment.  On appeal, he asserts the 

PCRA court erred when it dismissed, without holding an evidentiary hearing, 

his  challenge  to  trial  counsel’s  effectiveness  for  failing  to  object  to  the  trial 

court’s  jury  instruction  defining  reasonable  doubt.    We  deny  relief  on  his 

claims,  but  we  sua  sponte  determine  the  life  without  parole  sentence  for 

conspiracy to commit murder was illegal, and thus vacate it.4  Accordingly, we 

affirm the PCRA court’s order, vacate Appellant’s judgment of sentence in part, 

and remand to the trial court for resentencing. 

 

The PCRA court summarized the underlying facts of this case as follows: 
 

[On April 17, 2014,  Appellant] and four co-conspirators — 
Nysare Alston, Deforest Johnson, Brandon McKelvey, and Kenneth 

____________________________________________ 

issues  arising  on  more  than  one  trial  court  docket),  overruled  in  part, 
Commonwealth v. Young, 265 A.3d 462, 477 (Pa. 2021) (reaffirming that 
Pa.R.A.P. 341 requires separate notices of appeal when single order resolves 
issues  under  more  than  one  docket,  but  holding  Pa.R.A.P.  902  permits 
appellate court to consider appellant’s request to remediate error when notice 
of appeal is timely filed).  This Court consolidated these appeals sua sponte 
on January 21, 2022.  Order, 1/21/22. 

- 2 - 

 42 Pa.C.S. §§ 9541-9546. 

 18 Pa.C.S. §§ 2502(a) and 903(a), respectively. 

 See 18 Pa.C.S. § 1102(c). 

  2

  3

  4

 

J-A21042-22 

J-A21042-22 

Thomas[5]  —  lured  the  decedent,  Carl  Johnson,  and  surviving 
victim  Ryan  Hardy  to  the  Strawberry  Mansion  neighborhood  of 
Philadelphia  under  the  pretense  of  buying  cocaine.    Instead, 
[Appellant  and  his  co-conspirators]  abducted  the  victims  from 
[Victim] Johnson’s [car].  The victims were bound with duct tape 
and  placed  in  a  Ford  van  driven  by  [Appellant].    The  co-
conspirators  stole  approximately  $20,000  worth  of  cocaine,  a 
television set, and jewelry. 

After  doing  so,  co-defendant  McKelvey  shot  [Victim] 
Johnson  and  [Victim]  Hardy  using  a  9mm  firearm[,]  which 
belonged  to  [Appellant.    Victim]  Johnson  died  at  the  scene.  
[Victim]  Hardy  suffered  two  gunshot  wounds  but  survived.  
Following  the  shooting,  the  co-conspirators  reconvened  at 
McKelvey’s house in [W]est Philadelphia to divide the proceeds of 
the robbery and abandoned [Victim] Johnson’s [car] after washing 
it in bleach.   

PCRA Ct. Op. 1/31/22, at 2.   

____________________________________________ 

5  Appellant  had  a  joint  trial  with  co-conspirators  Alston  and  McKelvey,  who 
were found guilty of, inter alia, first-degree murder, attempted murder, and 
conspiracy to commit first-degree murder.  N.T., 11/16/17, at 4, 6, 10, 12.  
Co-conspirator Johnson was tried separately after the trial court granted his 
motion  for  severance,  and  was  found  guilty  of  second-degree  murder, 
kidnapping,  robbery,  and  related  offenses.    Commonwealth  v.  Johnson, 
1991  EDA  2019  (unpub.  memo.  at  1-2)  (Pa.  Super.  June  9,  2020),  appeal 
denied, 201 EAL 2020 (Pa. Feb. 23, 2021); Trial Ct. Op. 6/6/18, at 3 n.1.  Co-
conspirator  Thomas  entered  an  open  guilty  plea  to  third-degree  murder, 
kidnapping,  conspiracy  to  commit  robbery,  firearms  charges,  aggravated 
assault,  possession  of  an  instrument  of  crime  (PIC),  and  avoiding 
apprehension.  Trial Ct. Op. 6/6/18, at 3 n.1.  Thomas testified at the instant 
trial pursuant to an agreement with the Commonwealth, and at the time of 
trial, had not yet been sentenced.  Id.   
 

We  also  note  that  although  the  cover  of  the  November  16,  2017, 
transcript identifies the proceeding as “Volume 1” of trial, that proceeding was 
the  last  day  of  trial,  and  includes  the  jury’s  verdicts.    The  covers  for  the 
November  9th,  13th,  and  15th  trial  transcripts  similarly  identify  those 
proceeding as “Trial (Jury) Volume 1.”  To avoid confusion, we cite these trial 
transcripts  by  their  dates  only,  without  reference  to  the  purported  volume 
number. 
 

- 3 - 

 

Regarding  Victim  Johnson,  Appellant  was  charged  at  Criminal  Docket 

No.  CP-51-CR-0007418-2016  with  one  count  each  of  first-degree  murder, 

conspiracy, robbery, kidnapping, firearms not to be carried without a license, 

carrying a firearm in public in Philadelphia, and PIC.6  Relating to Victim Hardy, 

Appellant was charged at Criminal Docket No. CP-51-CR-0007422-2016 with 

attempted murder, aggravated assault, robbery, and kidnapping.7 

On November 7, 2017, a jury trial for both criminal dockets commenced, 

for Appellant and co-conspirators Alston and McKelvey.  The Commonwealth 

presented the testimony of,  inter alia, co-conspirator Thomas, who testified 

to  the  facts  summarized  above.    He  stated  that  Appellant:  (1)  agreed  to 

kidnap, torture, and if necessary, kill Victim Johnson; (2) was present during 

preparations  to  execute  this  plan;  and  (3)  was  on  the  phone  with  co-

conspirator Thomas over the course of the crime.  N.T., 11/8/17, at 97-101, 

103-04, 108-09, 115, 121, 133, 144, 146, 165.   

On  November  16,  2017,  the  jury  found  Appellant  guilty  of  the  above 

offenses.    That  same  day,  the  trial  court  sentenced  Appellant  to  two 

concurrent  terms  of  life  without  parole  for  his  convictions  of  first-degree 

____________________________________________ 

6  18  Pa.C.S.  §§  3701(a)(1)(i),  2901(a)(1),  6106(a)(1),  6108,  907(a),  and 
903(c), respectively.   
 

Appellant  was  also  charged  with  possession  of  a  firearm  (prohibited 
persons),  18  Pa.C.S.  §  6105(a)(1).    The  Commonwealth  nolle  prossed  this 
charge at trial.  See N.T., 11/16/17, at 22-23. 

- 4 - 

 18 Pa.C.S. §§ 901(a), 2702(a).   

  7

 

J-A21042-22 

J-A21042-22 

murder and conspiracy to commit first-degree murder, and a consecutive term 

of 10 to 20 years’ incarceration for attempted murder.8  Appellant filed a post-

sentence motion, which was denied on November 27th.   

This Court affirmed Appellant’s judgment of sentence on May 13, 2019.  

Commonwealth v. Corley, 209 EDA 2018 (unpub. memo.) (Pa. Super. May 

13, 2019), appeal denied, 292 EAL 2019 (Sept. 24, 2019).  Appellant filed a 

petition for allowance of appeal with the Pennsylvania Supreme Court, which 

was denied on September 24th.  See id.   

Appellant filed the underlying timely pro se PCRA petition, his first, on 

October 22, 2020.  The PCRA court appointed Coley O. Reynolds, Esquire, who 

filed an amended PCRA petition on May 26, 2021, where he raised a claim of 

ineffective assistance of trial counsel for failing to object to a jury instruction 

defining  reasonable  doubt.    Appellant’s  Amended  Post-Conviction  Relief  Act 

Petition,  5/26/21,  at  4.    The  Commonwealth  filed  a  motion  to  dismiss 

Appellant’s petition on August 19th.  The PCRA court filed a notice to dismiss 

without  a  hearing  pursuant  to  Pa.R.Crim.P.  907  on  October  29th  and 

dismissed  Appellant’s  petition  on  December  9th.    Appellant  filed  this  timely 

notice of appeal.  The PCRA court did not order Appellant to file a  Pa.R.A.P. 

1925(b) concise statement of errors complained of on appeal.  Nevertheless, 

he filed one on January 17, 2022.   

____________________________________________ 

8  Appellant’s  conviction  for  aggravated  assault  merged  for  purposes  of 
sentencing and  the trial court  imposed no further penalty on  the remaining 
charges.   
 

- 5 - 

id  the  PCRA  court  err  by  denying  Appellant  an  evidentiary 
hearing  and  post-conviction  relief  on  his  claim  alleging  trial 
counsel provided ineffective assistance of counsel by not objecting 
to the trial court’s  jury  instruction on reasonable doubt because 
the instruction improperly elevated the level of reasonable doubt 
required for acquittal in violation of the due process clause of the 
Fourteenth Amendment to the United States Constitution[?] 

  D

Appellant raises the following on appeal: 

Appellant’s Brief at 3 (some capitalization omitted).   

In his sole claim, Appellant argues trial counsel was ineffective for not 

objecting to the trial court’s reasonable doubt jury instruction and the PCRA 

court  erred  when  it  did  not  grant  an  evidentiary  hearing  on  this  issue.  

Preliminarily,  we  note  the  relevant  standard  of  review  for  denial  of  a 

Appellant’s Brief at 8.   

PCRA petition: 

  W

e  must  determine  whether  the  findings  of  the  PCRA  court  are 
supported by the record and whether the court’s legal conclusions 
are  free  from  error.    The  findings  of  the  PCRA  court  and  the 
evidence  of  record  are  viewed  in  a  light  most  favorable  to  the 
prevailing  party.    The  PCRA  court’s  credibility  determinations, 
when supported by the record, are binding; however, this [C]ourt 
applies  a  de  novo  standard  of  review  to  the  PCRA  court’s  legal 
conclusions.    We  must  keep  in  mind  that  the  petitioner  has  the 
burden  of  persuading  this  Court  that  the  PCRA  court  erred  and 
that  such  error  requires  relief.    Finally,  this  Court  may  affirm  a 
valid judgment or order for any reason appearing of record. 

Commonwealth  v.  Montalvo,  205  A.3d  274,  286  (Pa.  2019)  (citations 

With  respect  to  the  PCRA’s  timeliness  requirements,  this  Court  has 

omitted). 

explained: 
 

- 6 - 

J-A21042-22 

J-A21042-22 

Section  9545  of  the  PCRA  expressly  states  that  a  PCRA  petition 
“shall be filed within one year of the date the judgment becomes 
final.”  42 Pa.C.S. § 9545.  A judgment of sentence becomes final 
at the conclusion of direct review, including discretionary review, 
or at the expiration of time for seeking the review.  [42 Pa.C.S.] 
§  9545(b)(3).    “Our  courts  have  strictly  interpreted  this 
requirement  as  creating  a  jurisdictional  deadline.”    A  court  may 
not  address  the  merits  of  the  issues  raised  if  the  PCRA  petition 
was not timely filed. 

Commonwealth v. Whiteman, 204 A.3d 448, 450 (Pa. Super. 2019) (some 

citations omitted).   

 

In the instant case, this Court affirmed Appellant’s judgment of sentence 

on May 13, 2019, and the Pennsylvania Supreme Court denied his petition for 

allowance of appeal on September 24th.  See Corley, 209 EDA 2018, appeal 

denied, 292 EAL 2019.  Therefore, he had 90 days — or until December 23rd 

— to file a writ of certiorari with the United States Supreme Court.  See S.Ct.R. 

13(1).  Appellant did not, and thus, his judgment of sentence became final on 

December 23rd.  Appellant then had one year, or until December 23, 2020, to 

file a PCRA petition.  See 42 Pa.C.S. § 9545(b)(1).  Appellant filed the present 

petition on October 22, 2020, and as such, it is timely. 

 

Appellant challenges the PCRA court’s dismissal of his petition without 

an  evidentiary  hearing  on  his  ineffectiveness  claim.    We  note  counsel  is 

presumed  to  have  rendered  effective  assistance.    Commonwealth  v. 

Charleston,  94  A.3d  1012,  1019  (Pa.  Super.  2014)  (citation  omitted).    To 

prevail on an ineffectiveness claim, the petitioner must establish the following 

factors:  (1)  the  underlying  claim  has  arguable  merit;  (2)  counsel  had  no 

reasonable  basis  for  his  action  or  inaction;  and  (3)  the  petitioner  was 

- 7 - 

prejudiced.  Id. at 1020.  Further, the defendant’s claims “must meet all three 

prongs of the test for ineffectiveness[;] if the court can determine without an 

evidentiary hearing that one of the prongs cannot be met, then no purpose 

would be advanced by holding an evidentiary hearing.”  Id. (citation omitted). 

Where  a  court  has  dismissed  a  PCRA  petition  without  an  evidentiary 

hearing, we review the decision for an abuse of discretion: 

T]he right to an evidentiary hearing on a post-conviction petition 
is not absolute.  It is within the PCRA court’s discretion to decline 
to hold a hearing if the petitioner’s claim is patently frivolous and 
has no support either in the record or other evidence.  It is the 
responsibility  of  the  reviewing  court  on  appeal  to  examine  each 
issue  raised  in  the  PCRA  petition  in  light  of  the  record  certified 
before  it  in  order  to  determine  if  the  PCRA  court  erred  in  its 
determination that there were no genuine issues of material fact 
in  controversy  and  in  denying  relief  without  conducting  an 
evidentiary hearing.   

  [

Commonwealth  v.  Wah,  42  A.3d  335,  338  (Pa.  Super.  2012)  (citations 

omitted).  “[T]o obtain reversal of a PCRA court’s decision to dismiss a petition 

without a hearing, an appellant must show that he raised a genuine issue of 

fact which, if resolved in his favor, would have entitled him to relief, or that 

the  court  otherwise  abused 

its  discretion 

in  denying  a  hearing.”  

Commonwealth v. Johnson, 139 A.3d 1257, 1273 (Pa. 2016). 

We  are  guided  by  the  following.    “[I]t  is  an  unquestionable  maxim  of 

law in this Commonwealth that a trial court has broad discretion in phrasing 

its instruction, and may choose its own wording so long as the law is clearly, 

adequately,  and  accurately  presented  to  the  jury  for  its  consideration.”  

Commonwealth  v.  Antidormi,  84  A.3d  736,  754  (Pa.  Super.  2014) 

- 8 - 

J-A21042-22 

J-A21042-22 

(citations omitted).  Thus, this Court will not find jury instructions erroneous 

when,  taken  as  a  whole,  they  adequately  and  accurately  set  forth  the 

applicable law.  Commonwealth v. Daniels, 963 A.2d 409, 430 (Pa. 2009).   

In the present matter, at the conclusion of trial, the court gave the jury 

the following instruction regarding the “reasonable doubt” standard: 

lthough  the  Commonwealth  has  the  burden  of  proving  that 
[Appellant] is guilty, this does not mean that the Commonwealth 
must  prove  its  case  beyond  all  doubt  or  to  a  mathematical 
certainty nor must the Commonwealth demonstrate the complete 
impossibility of innocence.   

A reasonable doubt is a doubt that would cause a reasonably 
sensible  and  careful  person  to  pause,  hesitate  or  refrain  from 
acting upon a matter of highest importance to that person’s own 
affairs or to that person’s own best interests. 

A  reasonable  doubt  must  fairly  arise  out  of  the  evidence 
presented or out of the lack of evidence presented with respect to 
some element of each of the crimes charged.  A reasonable doubt 
must be a real doubt.  It may not be an imagined one nor may it 
be a doubt manufactured by you in order to avoid carrying out an 
unpleasant duty.   

  A

To  summarize:  You  may  not  find  [Appellant]  guilty  based 
upon  a  mere  suspicion  of  guilt.    The  Commonwealth  has  the 
burden of proving [Appellant] guilty beyond a reasonable doubt.  
If the Commonwealth has met its burden, then [Appellant] is no 
longer presumed to be innocent and you should find him guilty.  
However, if the Commonwealth has not met its burden, then you 
must find [Appellant] not guilty.   

What  I  tell  people,  ladies  and  gentlemen,  is  this,  if  a 
reasonable,  sensible  person  were  making  a  really  important  life 
decision,  not  an  everyday  decision,  what  to  eat,  what  to  wear, 
where  to  go,  if  you  screw  that  up,  it  has  no  effect  on  your  life 
really but a major life-changing decision, whether to pick up your 
whole  family  and  move  across  the  country,  whether  to  marry, 
whether  to  join  the  Armed  Forces,  whether  to  have  serious 
surgery, the kind of decision that a person, a reasonable, sensible 
person  is  going  to  think  hard  about  before  they  make  it,  if  that 

- 9 - 

Returning to Appellant’s argument, he asserts the above jury instruction 

improperly  elevated  the  reasonable  doubt  standard  by  lowering  the 

Commonwealth’s burden of proof and making it “overly easy” for the jury to 

“resolve or simply ignore” any reasonable doubt.  See Appellant’s Brief at 11, 

nserted a requirement that any doubt worthy of acquittal must be 
so serious and grave that it would rise to the level of causing a 
person  not  to  pick  up  the  whole  family  and  move  across  the 
country, marry, join the Armed Forces, and not to have needed 
serious surgery. 

  i

13.  Appellant alleges the trial court’s instruction 

Id. at 12-13.  Appellant  relies on Cage v. Louisiana, 498 U.S. 39 (1990), 

which held that “use of the words ‘substantial’ and ‘grave’” improperly lowered 

the prosecution’s burden of proof.  Id. at 14.  He maintains the jury instruction 

in  the  present  case  is  “no  different[.]”    Id.    Appellant  then  argues  the 

instruction  used  an  “improper  example”  which  “require[d]  a  substantial 

doubt[,]” instead of a reasonable doubt.  Id. at 14-15, relying on inter alia, 

Taylor v. Kentucky, 436 U.S. 478, 488 (1978) (trial court’s jury instruction 

defining reasonable doubt as “substantial doubt” is confusing).  Appellant also 

claims the instruction in this case is “similar” to the one found unconstitutional 

in the federal decision Brooks v. Gilmore, 2017 WL 3475475 (E.D. Pa. 2017) 

(unreported).    Appellant’s  Brief  at  15.    Specifically,  Appellant  insists  the 

reasonable, sensible person gathers the information to help them 
to  make  this  decision  and  deliberates  upon  it,  considers  all  the 
various aspects but then in the end, pauses, hesitates, just cannot 
go forward in acting, that is what we call a reasonable doubt. 

N.T., 11/15/17, at 8-10.   

J-A21042-22 

- 10 - 

J-A21042-22 

instruction  here  “comprise[d]  about  half  of  what  was  said”  in  the 

unconstitutional Brooks instruction.  Id. at 17.   

 

Appellant also argues the instruction improperly “directed [the jury] to 

rely exclusively” on whether it would “refrain from acting” or “mov[e] beyond” 

its reasonable doubt when deciding guilt.  Appellant’s Brief at 18-19.  Instead, 

he maintains the court should have instructed the jurors to acquit Appellant if 

they “pause[d]” or “hesitate[d].”  Id.  Appellant avers counsel had a duty to 

object to this “highly unusual” instruction.  Id. at 19, 22.  Lastly, Appellant 

insists that since the jury instruction contained a “structural” defect, prejudice 

is presumed.  Id. at 24.  Alternatively, Appellant maintains that he suffered 

prejudice  because  the  “only”  evidence  of  his  guilt  came  from  corrupt  and 

polluted sources, insisting there was a “reasonable probability” that the jury 

may have had reasonable doubts as to his guilt.  Id.   

 

Relevant  to  Appellant’s  argument,  we  briefly  summarize  Cage  and 

Brooks.  In Cage, the defendant was convicted of first-degree murder and 

sentenced  to  death.    Cage,  498  U.S.  at  39.    He  appealed  to  the  Supreme 

Court  of  Louisiana,  arguing,  inter  alia,  that  the  trial  court  gave  a 

constitutionally  defective  reasonable  doubt  instruction.    Id.  at  40.    The 

instruction stated, in relevant part: 

This  doubt  .  .  .  must  be  a  reasonable  one;  that  is  one  that  is 
founded upon a real tangible substantial basis and not upon mere 
caprice and conjecture.  It must be such doubt as would give 
rise to a grave uncertainty, raised in your mind by reasons of 
the  unsatisfactory  character  of  the  evidence  or  lack  thereof.    A 
reasonable doubt is not a mere possible doubt.  It is an actual 
substantial  doubt.    It  is  a  doubt  that  a  reasonable  man  can 

- 11 - 

seriously  entertain.    What  is  required  is  not  an  absolute  or 
mathematical certainty, but a moral certainty.   

Id.  (emphasis  in  original).    The  Louisiana  Supreme  Court  rejected  the 

defendant’s  argument,  finding  that  when  read  as  a  whole,  the  instruction 

properly relayed the reasonable doubt standard.  Id. at 40-41.   

The Supreme Court of the United States granted the defendant certiorari 

on this claim, concluding that “the words ‘substantial’ and ‘grave,’ as they are 

commonly understood, suggest a higher degree of doubt than is required for 

acquittal  under  the  reasonable-doubt  standard[.]”    Cage,  498  U.S.  at  41.  

Further, the Court determined that a “reasonable juror could have interpreted 

the instruction to allow a finding of guilt based on a degree of proof below that 

required by the Due Process Clause.”  Id. at 41.   

 

In  the  present  case,  as  the  PCRA  court  points  out,  Appellant 

mischaracterizes  the  trial  court’s  reasonable  doubt  instruction.    The  court 

espite  [Appellant’s]  characterizations  of  [the]  instruction,  the 
court at no point used the phrases “substantial doubt” or “grave 
uncertainty” and certainly did not direct the jury to reach a verdict 
based on moral clarity, but rather properly instructed the jury that 
a reasonable doubt must rise out of “the evidence presented or 
out of the lack of evidence presented.” 

See  PCRA  Ct.  Op.  at  6,  citing  N.T.,  11/15/17,  at  8-10.    We  agree  with  the 

PCRA court and conclude Appellant’s assertions — that the instruction here is 

“no  different”  from  that  in  Cage,  and  implied  the  need  for  a  “substantial 

doubt” — is a blatant mischaracterization of the instruction.  See Appellant’s 

Brief at 14-15.  As such, Cage is not applicable to the present facts. 

  D

explained: 

- 12 - 

J-A21042-22 

 

Next, we examine Brooks.  In this case, the defendant was convicted 

in the Philadelphia Court of Common Pleas of first-degree murder and related 

offenses.  Brooks, 2017 WL 3475475, at *2.  His judgment of sentence was 

affirmed on direct appeal and his PCRA petition was denied by the Court of 

Common Pleas.  Id.  The defendant then filed a petition for a writ of habeas 

corpus  in  the  Eastern  District  of  Pennsylvania,  challenging,  inter  alia,  the 

reasonable  doubt  jury  instruction  given  at  his  trial.    Id.    His  petition  was 

denied,  and  he  filed  for  a  writ  of  habeas  corpus  in  the  Eastern  District  of 

Pennsylvania.  In pertinent part, the challenged instruction stated:  

t’s helpful to think about reasonable doubt in this manner. . . .  
Each  one  of  you  has  someone  in  your  life  who’s  absolutely 
precious to you.  If you were told by your precious one’s physician 
that  they  had  a  life-threatening  condition  and  that  the  only 
known protocol or the best protocol for that condition was an 
experimental surgery, you’re very likely going to ask for a second 
opinion.  You may even ask for a third opinion.  You’re probably 
going to research the condition, research the protocol.  What’s the 
surgery about?  How does it work?  You’re going to do everything 
you can to get as much information as you can.  You’re going to 
call everybody you know in medicine: What do you know?  What 
have  you  heard?    Tell  me  where  to  go.    But  at  some  point  the 
question  will  be  called.    If  you  go  forward,  it’s  not  because  you 
have moved beyond all doubt.  There are no guarantees.  If you 
go forward, it is because you have moved beyond all reasonable 
doubt. 

  I

Id. at **7-8 (emphasis added).   

The federal court concluded that the instruction violated the defendant’s 

due  process  rights.    It  stated  the  instruction  employed  the  emotionally 

charged “precious ones” example affording “a single life-saving option for a 

J-A21042-22 

- 13 - 

J-A21042-22 

loved one[,]” thus elevating the level of doubt required for acquittal.  Brooks, 

2017 WL 3475475, at **9-10.  The court also opined:   

The problem is compounded by the fact that the trial judge 
structured the hypothetical in terms of the jury proceeding to take 
action on behalf of their family member, twice using the phrase “if 
you  go  forward  .  .  .  .”    The  Supreme  Court  has  made  clear, 
however, that a charge on reasonable doubt should be expressed 
“in terms of the kind of doubt that would make a person hesitate 
to act rather than the kind on which he would be willing to act.”  
In the context of an otherwise sufficient charge, such error would 
not  amount  to  a  constitutional  violation.    But  taken  in 
combination with the trial court’s hypothetical here, which 
would  require  an  excessively  high  degree  of  doubt  to  reach  an 
acquittal, the deficiency of the charge is clear. . . .  

Id. at **10-11 (emphasis added).   

 

Once more, Appellant has mischaracterized the trial court’s reasonable 

doubt  instruction.    The  PCRA  court  stated  the  instruction  here  and  the 

instruction  in  Brooks were distinguishable.   PCRA Ct. Op. at 6.   We agree.  

First,  we  note  Appellant  again  embellishes  the  trial  court’s  instruction  to 

compare it to the instruction in  Brooks.  He asserts the court referenced a 

“needed  serious  surgery”  as  opposed  to  merely  “a  serious  surgery.”  

Appellant’s Brief at 13 (emphasis added); compare N.T., 11/15/17, at 10.  We 

disagree with Appellant’s contention that the trial court’s single mention, of a 

“serious surgery” that one would think hard about, “comprises about half of 

what  was  said”  in  the  Brooks  instruction.    See  Appellant’s  Brief  at  17.  

Ultimately,  the  instruction  the  trial  court  gave  at  Appellant’s  trial  is 

substantially dissimilar to the unconstitutional instruction in Brooks.   

- 14 - 

J-A21042-22 

Regarding the language, to “mov[e] forward” in the instruction, we also 

find  Appellant’s  comparison  unavailing.    While  the  trial  court  made  this 

statement in its charge, it was dissimilar to the same phrase as it appeared in 

Brooks.    The  federal  court  in  Brooks  noted  that  the  expression  in 

combination with the specific “precious ones” hypothetical was problematic.  

See Brooks, 2017 WL 3475475, at **10-11.  As we determine the trial court’s 

use of the words “serious surgery” and “think[ing] hard” about a decision do 

not rise to issues of the Brooks instruction, the reference to “moving forward” 

does “not amount to a constitutional violation.”  See id. at *11.   

Though  Appellant  relies  on  Brooks,  we  note  that  the  Pennsylvania 

Supreme  Court  recently  found  a  jury  instruction,  similar  to  that  in  Brooks, 

was “constitutionally defective.”  See Commonwealth v. Drummond, 285 

A.3d 625, 628, 646 (Pa. 2022) (holding instructions like the “precious ones” 

charge in Brooks are likely to cause a jury to apply a diminished standard of 

proof,  but  counsel  was  not  ineffective  for  not  objecting  because  the 

Pennsylvania  Superior  Court  previously  affirmed  sentences  where  the 

appellant challenged this instruction).9  In any event, this new decision would 

still not entitle Appellant to relief.  As stated above, the instruction in this case 

is distinguishable from the one in Drummond and Brooks.   

____________________________________________ 

9  Drummond  and  Brooks  both  involved  the  same  trial  judge,  who  gave 
almost  identical  reasonable  doubt  jury  instructions  in  each  case.    See 
Drummond, 285 A.3d at 631-32, 644; compare Brooks 2017 WL 3475475, 
at **7-8.   
 

- 15 - 

J-A21042-22 

We agree with the PCRA court that Appellant’s arguments have no merit.  

The court provided an instruction to the jury whereby it accurately described 

the  reasonable  doubt  standard.    The  court’s  further  explanation  of  the 

standard by way of example did not, as Appellant suggests, elevate the level 

of  doubt  needed  for  acquittal.    See  Appellant’s  Brief  at  11,  13.    Moreover, 

even if such a comparison could be made between the instructions, we would 

deny  relief  on  the  basis  that  at  the  time  of  his  trial,  this  Court  regularly 

rejected similar arguments relying on Brooks.  See Drummond, 285 A.3d at 

646.    As  the  trial  court  properly  determined  that  at  least  one  of  the 

ineffectiveness prongs could not be met, it did not err in dismissing Appellant’s 

petition without a hearing.  See Charleston, 94 A.3d at 1020.  No relief is 

due.   

Next,  we  sua  sponte  consider  Appellant’s  life  without  parole  sentence 

for conspiracy to commit murder. Under 18 Pa.C.S. § 1102(c), the maximum 

sentence for conspiracy to commit murder is 40 years where there is serious 

bodily injury and 20 years where there is no serious bodily injury.10  See 18 

____________________________________________ 

10 We note that pursuant to Apprendi v. New Jersey, 530 U.S. 466 (2000), 
to impose a 40-year maximum sentence under Section 1102(c), the jury must 
make a finding of serious bodily injury  specific to the conspiracy  to commit 
murder charge.  See Apprendi, 530 U.S. at 490 (“Other than the fact of a 
prior conviction, any fact  that  increases the penalty for a  crime beyond the 
prescribed  statutory  maximum  must  be  submitted  to  a  jury,  and  proved 
beyond a reasonable doubt.”) (citation omitted); Commonwealth v. Barnes, 
167  A.3d  110,  117-19  (Pa.  Super.  2017)  (the  defendant  could  not  be 
sentenced to the enhanced maximum of 40 years’ incarceration for attempted 
murder pursuant to Section 1102(c) when: (1) the defendant was not charged 
(Footnote Continued Next Page) 

- 16 - 

J-A21042-22 

Pa.C.S.  §  1102(c).    Although  Appellant  has  not  raised  an  illegal  sentencing 

claim,  we  may  address  it  sua  sponte.    See  Commonwealth  v.  DiMatteo, 

177  A.3d  182,  192  (Pa.  2018)  (reiterating  general  rule  that  legality  of 

sentence  can  be 

reviewed 

in  context  of 

timely  PCRA  petition); 

Commonwealth  v.  Randal,  837  A.2d  1211,  1214  (Pa.  Super.  2003)  (en 

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

reviewed  sua  sponte  by  this  Court)  (citation  omitted).    Further,  “[w]here  a 

case  requires  a  correction  of  sentence,  this  Court  has  the  option  of  either 

remanding 

for 

resentencing  or  amending 

the  sentence  directly.” 

Commonwealth  v.  Klein,  795  A.2d  424,  430  (Pa.  Super.  2002)  (citation 

omitted).   

The  imposed  sentence  for  conspiracy  to  commit  murder  exceeds  the 

statutory  maximum  allowed,  and  as  such  is  illegal  and  cannot  stand.  

Accordingly, we vacate Appellant’s life without parole sentence for conspiracy 

____________________________________________ 

with  “attempted  murder  resulting  in  serious  bodily  injury[;]”  (2)  the 
Commonwealth  did  not  give  the  defendant  notice  that  it  “sought  either  to 
prove that a serious bodily injury resulted from the attempted murder or to 
invoke  the  greater  maximum  sentence[;]”  (3)  the  issue  of  whether  serious 
bodily injury occurred as a result of the attempted murder charge “was never 
submitted  to  the  jury  as  an  element  of  the  crime  or  as  a  special 
interrogatory[;]” and (4) a finding of serious bodily injury as an element of a 
separate conviction at trial cannot “be used to infer that the jury found serious 
bodily  injury  for  the  attempted  murder  charge.”)  (citations  omitted).    See 
also 18 Pa.C.S. § 1102(c) (governing the statutory maximum sentences for 
both attempted murder and conspiracy to commit murder).  Here, the verdict 
sheet does not include any question, nor any finding by the jury, as to whether 
the  conspiracy  resulted  in  serious  bodily  injury.    See  Verdict  Report, 
11/15/17, at 1.   
 

- 17 - 

to  commit  murder  at  Docket  No.  CP-51-CR-0007418-2016,  and  remand  for 

resentencing  on  that  count  only.    We  do  not  disturb  the  remainder  of 

 

Orders affirmed.  Judgment of sentence vacated in part consistent with 

this  memorandum.    Case  remanded  with  instructions.    Jurisdiction 

Appellant’s sentence.   

relinquished.   

udgment Entered. 

oseph D. Seletyn, Esq. 
Prothonotary 

ate: 3/16/2023 

  J

    J

  D

 

J-A21042-22 

- 18 -