J-A19031-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                             Appellant

                      v.

JAMIL JOHNSON

                                                      No. 2454 EDA 2015


                      Appeal from the Order July 15, 2015
     in the Court of Common Pleas of Philadelphia County Criminal Division
                       at No(s):CP-51-CR-0011362-2014

BEFORE: FORD ELLIOTT, P.J.E., OTT, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                     FILED DECEMBER 27, 2016

        The Commonwealth appeals from the order entered in the Philadelphia

County Court of Common Pleas granting Appellee’s, Jamil Johnson, motion

for judgment of acquittal for conspiracy.        We reverse and remand for

reinstatement of the jury verdict and for sentencing.

        The trial court summarized the procedural posture of this case as

follows:

              Defendants, Derrick Harling1 and [Appellee], were
           arrested on September 18, 2014, and charged with
           robbery, conspiracy, theft by unlawful taking, receiving
           stolen property, simple and aggravated assault and
           recklessly endangering another person.       [Defendant
           Harling and Appellee] were held for court on all charges

*
    Former Justice specially assigned to the Superior Court.
1
 The Commonwealth’s appeal of the trial court’s grant of relief to Appellee’s
codefendant, Derrick Harling, is listed at 2453 EDA 2015.
J-A19031-16


           after a preliminary hearing on October 6, 2014. A joint
           jury trial commenced July 9, 2015. A motion for acquittal
           was presented at the conclusion of the prosecution’s
           case[2] and held in abeyance until after the jury returned a
           verdict.    On July 14th, the jury found [Appellee and
           Harling] guilty of conspiracy to commit aggravated assault,
           but acquitted both [of them] of all other charges, including
           aggravated assault. On July 15th, the motion for acquittal
           was granted as to the charge of criminal conspiracy to
           commit aggravated assault.

Trial Ct. Op., 10/28/15, at 1-2.         This timely appeal followed.     The

Commonwealth filed a Pa.R.A.P. 1925(b) statement of errors complained of

on appeal and the trial court filed a responsive opinion.

      Preliminarily, we consider whether an appeal properly lies from the

trial court’s order granting judgment of acquittal. Appellee argues that the

order constituted an acquittal for double jeopardy purposes and that the

Commonwealth’s appeal should be barred. Appellee’s Brief at 10-13 (citing,

inter alia, Commonwealth v. Gibbons, 784 A.2d 776 (Pa. 2001)).            The

Commonwealth responds that its appeal is proper because there is no

possibility of a successive prosecution implicating the double jeopardy

clause.3     Commonwealth’s Reply Brief at 4-6.             We agree with the

Commonwealth.


2
  Counsel for Appellee moved for judgment of acquittal. See R.R. at 82.
Defendant Harling’s counsel joined in the motion. See id. For the parties’
convenience we refer to the reproduced record where applicable.
3
  The Fifth Amendment provides, in pertinent part, that no person “Shall be
subject for the same offence to be twice put in jeopardy of life or limb.”
U.S. Const. amend. V.      Article 1, Section 10, of the Pennsylvania



                                      -2-
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       In Gibbons, the defendant moved for a judgment of acquittal after the

Commonwealth presented its case, and the trial court granted the motion

before the defense’s case-in-chief.    Gibbons, 784 A.2d at 777.         Our

Pennsylvania Supreme Court held that double jeopardy precluded an appeal

of a judgment of acquittal granted before a verdict was rendered.      Id. at

778.

       This Court in Commonwealth v. Feathers, 660 A.2d 90 (Pa. Super.

1995) (en banc) opined:

         In United States v. Wilson, [ ] 95 S. Ct. 1013 [ ] (1975),
         the Supreme Court held “that when a judge rules in favor
         of the defendant after a verdict of guilty has been entered
         by the trier of fact, the Government may appeal from that
         ruling without running afoul of the Double Jeopardy
         Clause.” Id. [ ] at 1026 [ ]. The Court said:

            [W]here there is no threat of either multiple
            punishment or successive prosecutions, the Double
            Jeopardy Clause is not offended.         In various
            situations where appellate review would not subject
            the defendant to a second trial, this Court has held
            that an order favoring the defendant could
            constitutionally be appealed by the Government.
            Since the 1907 Criminal Appeals Act, for example,
            the Government has been permitted without serious
            constitutional challenge to appeal from orders
            arresting judgment after a verdict has been entered
            against the defendant. Since reversal on appeal
            would merely reinstate the jury’s verdict, review of
            such an order does not offend the policy against
            multiple prosecution.

Constitution provides, in relevant part, that “no person shall, for the same
offense, be twice put in jeopardy of life or limb.” Pa. Const. art. 1, § 10.




                                    -3-
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        Id. [ ] at 1022 [ ] (footnote omitted).


                                 *    *    *

        [W]here a court finds as a matter of law the evidence is
        not sufficient to support the verdict, that, like any other
        ruling on a question of law, is subject to review, and an
        order by the reviewing court reversing that conclusion
        and reinstating the jury verdict does not offend the
        proscription against double jeopardy.

Id. at 93-94 (emphases added).

     Instantly, although Appellee raised his motion for judgment of

acquittal at the close of the Commonwealth’s case, the trial court reserved

its ruling on the motion until after the defense presented its evidence and

the jury reached a verdict.4   See Pa.R.Crim.P. 606(A)(1), (B).     Thus, an

appellate reversal would not necessitate a retrial. On the contrary, the jury

verdict would be reinstated.    Feathers, 660 A.2d at 93-94; cf. United

States v. Scott, 437 U.S. 82, 100 n.13 (1978) (discussing balancing of

interest in the government’s right to appeal an erroneous conclusion of law

with the defendant’s in avoiding subsequent prosecutions).   Accordingly, the

trial court’s order is appealable and we address the substantive issue raised

by the Commonwealth. See id.

     The Commonwealth raises the following issue for our review:


4
  We note that Appellee renewed the motion following the jury verdict.
Counsel for Appellee stated: “This is a continued motion for directed verdict
of acquittal.” R.R. at 124.



                                     -4-
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           Did the lower court improperly grant [Appellee’s]
        motion for a judgment of acquittal from his conspiracy
        conviction where the evidence established that [Appellee]
        and his codefendant, joined by three other men,
        approached the victim [Martin Samuel Byng] together,
        beat the victim together, fled the scene together, and, a
        short time later, were arrested together?

Commonwealth’s Brief at 2.

     The Commonwealth contends “[t]he evidence, which established that

[Appellee] and four conspirators viciously beat [Mr. Byng] for fifteen

minutes, was sufficient to support [Appellee’s] conviction of conspiracy to

commit aggravated assault.” Id. at 8. The Commonwealth argues that the

trial court erred in granting Appellee’s motion for judgment of acquittal

based “on its belief that [Mr. Byng] had not testified credibly.”   Id. at 12.

We are constrained to agree.

     Our review is governed by the following principles.

        [W]here a trial court has found post-verdict that the
        evidence was insufficient as a matter of law to support the
        verdict, that determination is subject to appellate review .
        ...

                                 *    *    *

        To determine the legal sufficiency of evidence supporting a
        jury’s verdict of guilty, this Court must:

           view the evidence in the light most favorable to the
           Commonwealth, which has won the verdict, and
           draw all reasonable inferences in its favor. We then
           determine whether the evidence is sufficient to
           permit a jury to determine that each and every
           element of the crimes charged has been established
           beyond a reasonable doubt. It is the function of the
           jury to pass upon the credibility of the witnesses and


                                     -5-
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           to determine the weight to be accorded the evidence
           produced. The jury is free to believe all, part or
           none of the evidence introduced at trial. The facts
           and      circumstances     established     by     the
           Commonwealth need not be absolutely incompatible
           with [the] defendant’s innocence, but the question of
           any doubt is for the jury unless the evidence be so
           weak and inconclusive that as a matter of law no
           probability of fact can be drawn from the combined
           circumstances.

Feathers, 660 A.2d at 94-95 (quotation marks and citations omitted).

     The Pennsylvania Crimes Code defines conspiracy 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.

                                *    *    *

        (e) Overt act.─No person may be convicted of conspiracy
        to commit a crime unless an overt act in pursuance of such
        conspiracy is alleged and proved to have been done by him
        or by a person with whom he conspired.

18 Pa.C.S. § 903(a), (e).

     A criminal conspiracy conviction requires proof of:

           (1) an intent to commit or aid in an unlawful act, (2)
           an agreement with a co-conspirator and (3) an overt
           act in furtherance of the conspiracy. Because it is
           difficult to prove an explicit or formal agreement to


                                    -6-
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           commit an unlawful act, such an act may be proved
           inferentially by circumstantial evidence, i.e., the
           relations, conduct or circumstances of the parties or
           overt acts on the part of the co-conspirators.

        Circumstantial evidence can include, but is not limited to,
        the relationship between the parties, the knowledge of and
        participation in the crime, and the circumstances and
        conduct of the parties surrounding the criminal episode.
        These factors may coalesce to establish a conspiratorial
        agreement beyond a reasonable doubt where one factor
        alone might fail.

                             *       *        *

        The Commonwealth may meet this burden even if the
        conspirators fail to commit the underlying crime.
        Conspiracy to commit a crime and the underlying crime
        itself are two entirely separate offenses with separate
        elements required for each. Therefore, to sustain the
        conviction for criminal conspiracy, it need not be
        established that [the a]ppellant committed aggravated
        assault, provided that [the a]ppellant had the intent to do
        so.

Commonwealth v. Thomas, 65 A.3d 939, 943-44 (Pa. Super. 2013)

(quotation marks and citations omitted).

     Instantly, Mr. Byng testified for the Commonwealth as follows:

        [The Commonwealth]: Now, Mr. Byng, while you were
        waiting for the bus [on September 18th], did something
        happen?

        A: Yes.

        Q: What happened?

        A: Well, I was approached by two men, one on a bike . . . .

                                 *        *       *




                                         -7-
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       Q: Were they either of the two Defendants who are here
       today?

       A: No.

                               *    *    *

       Q: What happened when they came up to you . . .?

       A: One guy asked did I say something to his cousin and I
       replied no.

       Q: You said you didn’t know them.

          Had you ever seen either of them before?

       A: No.

       Q: After you said no, what happened?

       A: They proceeded to walk off and as they were walking
       off, I was looking to see which direction they were going
       and words were exchanged.

                               *    *    *

       Q: When you say words were exchanged, what happened?

       A: They must have felt some kind of way at me looking at
       them and all of a sudden they started calling theirs friends
       like I was really a big problem or something.

                               *    *    *

       Q: Now were you able to hear anything that they were
       calling out to those people?

       A: As far as names, no, just trying to get other people’s
       attention.

       Q: As they were calling out to them, were they still
       approaching you?

       A: Yes.


                                   -8-
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       Q: You mentioned that they were coming kind of
       aggressively, you mentioned like with anger in their faces?

       A: Yes.

       Q: What happened when they kept coming close to you?

       A: I started backing up when I seen [sic] I was basically
       about to be outnumbered. I started to walk up toward
       where the Family Dollar is at.

       Q: Now as they were coming closer to you and you
       mentioned they called out to some other individuals, those
       individuals that you saw down the block, what did you see
       them do, if anything?

       A: Basically coming toward me, coming toward me and
       surrounding me and they proceeded to assault me.

                               *    *    *

       Q: [A]pproximately how many people in total came up to
       you eventually?

       A: Five.

       Q: Any of the individuals that came up to you, do you
       recognize anybody in the courtroom from that day?

       A: Yes, I do.

       Q: Who are those people?

       A: Those two gentlemen over there. (Indicating).

                               *    *    *

       Q: . . . I will start with [Appellee] who is closer to the
       center of the room. (Indicating).

       When did you first notice him?

                               *    *    *


                                   -9-
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       A: After I got up off the ground.

                               *     *      *

       Q: Next, I am going to ask next about Defendant, Harling .
       ...

          When did you first notice him?

                               *     *      *

       Again, if you can just use the photo.

       A: Coming from across here, up toward Germantown
       Avenue. (Indicating).

                               *     *      *

       Q: Now, you mentioned assault. . . .

          What was the first contact?

       A: The first contact is when I attempted to cover my face
       and I started feeling hits, blows toward my body and
       toward my head.

                               *     *      *

          Well, I just felt multiple hits coming from just about
       every direction.

       Q: Where were you feeling the hits on your body?

       A: More toward my head.

       Q: Did you feel any hits on your body, itself, or were they
       all around your head?

       A: When I was covering my head, I felt hits on my body . .
       ..
                             *   *    *

       Q: Did you feel hits from just one person or multiple
       people?


                                   - 10 -
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       A: Multiple.

                               *     *       *

       Q: Mr. Byng, your glasses, did they stay on the entire
       time?

       A: No.

       Q: Do you recall at what point they came off?

       A: When I fell to the ground in front of the bus stop.

       Q: How did they come off?

       A: They were knocked off.

       Q: How were they knocked off?

       A: From a punch.

       Q: While you were on the ground, what were the
       individuals doing?

                                *     *      *

       Did the punches stop at that time?

       A: The punches did stop at that time and I was getting up.

                                *     *      *

       Q: As you are getting up, were the individuals still there?

       A: They started splitting up and stuff. As words were
       exchanged again and stuff, people started coming closer,
       still talking more aggressively. It was just a mess.

       Q: I want to go back to [Appellee]. You mentioned when
       you got up, that is when you noticed him?

       A: Yes.



                                    - 11 -
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       Q: What, if anything, did you see him do?

       A: He came across the street toward me.

                                *    *       *

       Q: Now was that after─

       A: I fell?

       Q: Yes.

       A: Yes.

       Q: When he came across the street toward you, did you
       hear him say anything?

       A: I don’t recall the words exactly but I know that when he
       approached me, he had his hands up in a fighting stance.

       Q: You can indicate for the jury how he had his hands up.

       A: Just like ready to throw punches at me. (Indicating).

       Q: As he came across the street, was he directing his
       attention to anybody but you?

       A: No, no.

       Q: You say that he came across the street looking like he
       was ready to fight.

          What happened as he came across the street?

       A: I was about to defend myself and then another
       gentleman said don’t put your hands on him.

       Q: The gentleman that you say said don’t put your hands
       on him, do you see that individual in court today?

       A: Yes, I do.

       Q: Who is that person?



                                    - 12 -
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       A: The gentleman on the far right. (Indicating).

       [The Commonwealth]: Indicating the Defendant, Harling.

       Q: Now when the Defendant, Harling, said that, where was
       he?

       A: He was, as I was in the street right here and getting up,
       the Defendant was coming across. . . .

       Q: How far away was he from you?

       A: About 8 feet.

                               *     *      *

       Q: When he said that, what did you take that to mean?

       A: That I was getting ready probably to get assaulted
       again if I even threw a swing.

       Q: After he said that, what happened?

       A: I was hit again.

       Q: Who were you hit by?

       A: By [Appellee] right there. (Indicating).

       Q: [Appellee], the one closer?

       A: Yes.

       Q: Where were you hit at that time?

       A: In my face.

                               *     *      *

       Q: When [Appellee] hit you, did he just hit you one time or
       did something else happen?

       A: Two hits.



                                   - 13 -
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       Q: Where were these two hits? . . .

       A: [T]o my head and to my jaw.

                               *     *      *

       Q: After you got back up, what happened?

       A: I was looking for my glasses. A couple of my family
       members came up because they heard about the incident
       through a friend who was driving by and maybe two
       minutes later, the police arrived and that was basically the
       incident.

       Q: Now, Mr. Byng, during this whole altercation, did you
       see what, if anything, Defendant, Harling, did he ever
       throw a punch at you?

       A: When he was approaching me in the beginning, he was
       one of the guys who was approaching me.

       Q: So that first fight I guess we can call it when you
       mentioned you were kind of going toward Family Dollar
       that ended up back toward the bus stop─

       A: Correct.

       Q: During that fight─

       A: Yes.

       Q:─you are saying Defendant, Harling, was there?

       A: Yes.

       Q: He also threw a punch?

       A: Yes.

                               *     *      *

       Q: Now, after the punches stopped, could you try and
       engage or tell how long the entire attack took?



                                   - 14 -
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       A: More or less, 15, maybe 25 minutes, around that time
       frame.

                               *      *     *

       Q: Now after the assault, you said everybody kind of
       scattered?

       A: Yes.

       Q: At the point when they scattered, did you hear any
       sirens, any police sirens?

       A: Yes, like two minutes later.

                               *      *     *

       Q: During that time, you said it was about two minutes,
       what were you doing during that time?

                               *      *     *

       A: I was mainly looking for my glasses and I realized my
       phone wasn’t on me.

       Q: Did you look for your phone?

       A: I did.

       Q: Were you able to find it?

       A: I didn’t and I realized my whole pocket was ripped and
       my shirt was ripped.        Basically everything was just
       bloodied and ripped on me.

                               *      *     *

       Q: How did you physically feel after the assault?

       A: Violated.

       Q: Did you feel any pain at all? Did you feel fine?




                                   - 15 -
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       A: I felt pain and stuff. My whole inner lip was cut and
       later on got infected but [sic] bruising on my head, a
       closed eye.

                               *     *      *

       Q: . . . When the police got there, what happened?

       A: They asked me the situation that happened. I told
       them the situation. The ambulance had checked on me
       and they checked my bruising and scar and they said I am
       able to comprehend and all that, so I can go with the
       police to see if I can identify the subjects before they ran
       anywhere else or anything like that and I told the police
       officer I was fine at the time, fine enough to go and get in
       the back of the police car and identify.

                              *     *       *

       Q: Do you know where you went?

       A: Down Germantown Avenue . . . .

                              *     *       *

       Q: As you went in that direction, what happened?

       A: I noticed to the right of me going down Germantown
       Avenue one of the assailants was sitting outside with a
       female.

       Q: The person that you saw sitting outside, do you see
       that individual in court today?

       A: Yes, I do.

       Q: Who is that?

       A: The gentleman to the far right. (Indicating)

                               *     *      *

       [The Commonwealth]: Indicating the Defendant, Harling,
       for the record.


                                   - 16 -
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                                *     *      *

        Q: I want to briefly just go back for a moment.

        After you got up, you said you saw [Appellee], and that is
        when he was kind of squared with you.

           Was there anything covering his face?

        A: No.

                                *     *      *

        Q: Was Defendant, Harling, behind [Appellee] at that point
        in time?

        A: No.

        Q: Where was he?

        A: To the side.

                                *     *      *

        Q: Now, you mentioned that the police car did a U-turn?

        A: Yes.

        Q: What happened as it did the U-turn?

        A: The police car did the U-turn, stopped directly in front
        of the house, got out of the car, attempted to knock on the
        door. Someone answered. The police went in and pulled
        out [Defendant Harling and Appellee].

                                *     *      *

        Q: What happened when the brought them out?

        A: They came out and I identified them as two of the five
        men that assaulted me and they proceeded to arrest them.

R.R. at 30-39.


                                    - 17 -
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      Police Officer Leo Jackson testified that on September 18, 2014 he was

working the 4:00 p.m. to midnight shift.          Id. at 66.   He testified to the

following.

         [The Commonwealth]: Officer Jackson, around 10:20 p.m.
         on September 18, 2014, did you get a radio call?

         A: Yes.

         Q: What was it for?

         A: It was for a robbery in progress at 5200 Germantown
         Avenue.

                                 *     *      *

         Q: When you got that radio call, what did you do?

         A: We turned our lights and sirens on and proceeded to
         5200 Germantown Avenue.

         Q: About how long did it take you to get there?

         A: I would say about a minute-and-a-half to two minutes.

         Q: When you got there, what did you see?

             What happened?

         A: I observed the victim, the complainant standing on, I
         believe, the east corner of Germantown and Ashmead. I
         observed him standing there. He flagged us down and I
         also observed the swollen─pretty bad swelling to his left
         eye. He was also bleeding. I believe he had a cut on his
         eyebrow and there was blood all over his shirt.

         Q: When you came into contact with him, what was his
         demeanor like? What was going on?

         A: He appeared pretty calm but also a little shaken up. He
         also told us he was jumped by a group of males and they
         had taken his cell phone.


                                     - 18 -
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       Q: After he gave you that information, what did you do?

       A: We got the information, the description of the males,
       gave that description over radio and then he got into the
       back of our car and we started driving around, looking for
       the males with the complainant.

                               *     *      *

       Q: Now you said complainant, would that be Mr. Martin
       Byng?

       A: Yes.

                               *     *      *

       Q: Where did you go?

       A: We started surveying─ . . .we pretty much immediately
       made a U-turn and began driving southbound on
       Germantown from Ashmead Street, which is the 5200
       block.

       At that point, . . . we passed the house and I don’t
       remember his exact words but Mr. Byng stated, oh, that’s
       one of the guys that was sitting out front of the house and
       he kind of pointed over his right shoulder. So we quickly
       made another U-turn. At that point, we saw the door close
       from the house.

                               *     *      *

       Q: Officer, after Mr. Byng indicted to you that he saw one
       of the guys, what did you do?

       A: We stopped the car, turned around and then we called
       over radio to let other units know that the complainant
       saw a male suspected of being involved in the crime go
       into the house.

                               *     *      *




                                   - 19 -
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         [Defendant, Harling’s counsel]: Now you said that other
         officers entered 5118?

         A: Yes.

         Q: There were approximately four or five officers that
         entered this address?

         A: I believe around that.       I’m not sure of the exact
         number.

         Q: When they exited the address, two officers were
         holding Mr. Harling?

         A: I don’t remember the exact number of officers holding.

Id. at 66-68, 70-71.

      Officer Dennis Murtha testified that he was with his partner and

responded to a radio call that a man “was struck numerous times and

robbed of his cell phone.” Id. at 72.

         [The Commonwealth]: Based on the information that came
         over [sic] radio . . . what did you and your partner do?

         A: We responded to 5118 Germantown Avenue. . . . [W]e
         knocked on the door. An occupant came down. She
         stated that she was the owner of the property.

            We explained to her that a robbery just happened
         around the corner and that the offenders were seen
         running into this location. We asked if we could come in
         and take a look. She happily agreed. We went inside.

Id. Officer Murta testified that he and the other officers “went up the stairs”

and “there was a bedroom at the top of the steps.” Id. at 73. They went

inside and found Appellee and Defendant Harling in the room. Id. Mr. Byng

positively identified Appellee. Id. at 74.



                                     - 20 -
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      The trial court granted Appellee’s motion for judgment of acquittal

finding that:

         [t]he prosecution’s case was based on the testimony of
         Martin Byng, the complainant in this matter. Mr. Byng was
         the sole witness as to the alleged assault/robbery, and his
         testimony was incongruent at best.

                                 *     *      *

            Byng’s testimony was inconsistent at best. Two males
         approached him and asked him a question. After they
         walked away, Byng started to yell and curse them. They
         came back.       After that, the testimony of Byng is so
         conflicting as to be irreconcilable.

                                 *     *      *

            Byng’s testimony is so incongruent that the charge of
         criminal conspiracy to commit aggravated assault was not
         made out. . . . There is no rational, dependable testimony
         from which to find that [Appellee and Defendant Harling]
         conspired to commit aggravated assault of Byng.

Trial Ct. Op. at 2, 7-8. The court further questioned the reliability of Byng’s

identifications noting Byng testified that his glasses were knocked off and he

could only see a few feet without them. Id. at 4.

      Following our review, we cannot agree with the trial court that the

evidence was so weak and inconclusive that as a matter of law, no

probability of fact could have been drawn from it. See Feathers, 660 A.2d

at 94-95. The Commonwealth was entitled to have its evidence credited and

all reasonable inferences drawn in its favor. See id. In this light, the jury

could have reasonably concluded that Appellee and Defendant, Harling acted

together with three other men and beat Byng for fifteen minutes. They fled


                                     - 21 -
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and Appellee and Defendant Harling were apprehended in the same house.

Byng identified Appellee, without hesitation. Additionally, the circumstances

of and inconsistencies in Byrd’s testimony generally go to the weight rather

than sufficiency of the evidence.5     See Commonwealth v. Minnis, 458

A.2d 231, 233-34 (Pa. Super. 1983).             Thus, we conclude that the

Commonwealth’s evidence was sufficient to sustain Appellee’s conviction for

conspiracy to commit aggravated assault. See Thomas, 65 A.3d at 943-45.

Accordingly, we must reverse the judgment of acquittal and reinstate the

jury verdict. See Feathers, 660 A.2d at 96. We remand for the imposition

of sentence. See id.

        Order reversed.    Jury verdict reinstated.      Case remanded for

sentencing.    Jurisdiction relinquished.     Commonwealth’s Petition to File

Post-Argument Communication Pursuant to Pa.R.a.P. 2501 is denied as

moot.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/27/2016




5
  We note that the trial court issued a Kloiber instruction.             See
Commonwealth v. Kloiber, 106 A.2d 820 (1954). R.R. at 110.



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