J-S34025-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee
v.
KRISTEN LYNN STRAUSSER
Appellant No. 1840 MDA 2015
Appeal from the PCRA Order entered September 21, 2015 In the Court of Common Pleas of Columbia County Criminal Division at No: CP-19-CR-0000381-2009 and CP-19-CR-0000517-2009
BEFORE: PANELLA, STABILE, and JENKINS, JJ.
MEMORANDUM BY STABILE, J.: FILED JUNE 22, 2016
Appellant, Kristen Lynn Strausser, appeals from the September 21,
2015 order granting in part and denying in part her petition pursuant to the
Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. We affirm.
The record reveals that Appellant, then 31 years old, and her
boyfriend, Colton Barrett, then 18 years old, worked together at a volunteer
fire department. They wished to create for themselves an opportunity to
fight a residential fire and perform a live rescue. On March 16, 2009,
Appellant and Barret went out together and identified the home of 89-year-
old Raymond Belles as their target. They obtained gasoline and returned to
Belles’ home at 2 a.m. the following morning. Barrett poured gasoline on J-S34025-16
Belles’ porch and garage and ignited it. He later responded to the Belles’ fire
as a firefighter. Belles escaped unharmed prior to the firefighters’ arrival.
On May 11, 2009, Barrett set fire to the home of Ernest and Anna
Margaret Robbins without Appellant’s involvement. The Commonwealth did
not charge Appellant with any crime related to the Robbins fire. The Robbins
fire caused little damage and the Robbinses escaped without injury.
Appellant and Barrett both responded to the Robbins fire as firefighters. At
the scene of the Robbins fire, Appellant asked Barrett to set another fire.
Within hours, Barrett set fire to the home of Reuben and Pauline Albertson,
aged 84 and 77, respectively. Barrett poured gasoline in the Albertson’s
enclosed front porch and ignited it. Both Albertsons suffered severe injuries.
They survived, albeit with lingering complications from their injuries, and
their home was destroyed.
On January 28, 2011, a jury found Appellant guilty of multiple counts
of conspiracy (18 Pa.C.S.A. § 903), including conspiracies to commit third
degree murder (18 Pa.C.S.A. § 2502(c)), aggravated assault (18 Pa.C.S.A.
§ 2702), arson (18 Pa.C.S.A. § 3301), and burglary (18 Pa.C.S.A. § 3502).
On April 7, 2011, the trial court imposed an aggregate 17 to 34 years of
incarceration. This Court affirmed the judgment of sentence on January 3,
2013. Appellant filed this timely first PCRA petition on January 9, 2014. The
PCRA court conducted a hearing on September 16, 2015 and entered the
order on appeal on September 21, 2015. The PCRA court’s September 21,
-2- J-S34025-16
2015 order vacated all but two of Appellant’s conspiracy convictions—one for
the Belles fire and one for the Albertson fire. Appellant argues there was
only one conspiracy because she and Barrett agreed to burn multiple homes.
The sole issue on appeal is whether the PCRA court erred in finding that the
Belles arson and the Albertson arson were the subject of separate
conspiracies.1
We review the PCRA court’s order denying relief to determine whether
the PCRA court committed an error of law and whether the record supports
the PCRA court’s factual findings. Commonwealth v. Brandon, 51 A.3d
231, 233 (Pa. Super. 2012). “In evaluating a PCRA court’s decision, our
scope of review is limited to the findings of the PCRA court and the evidence
of record, viewed in the light most favorable to the prevailing party at the
trial level.” Id. (quoting Commonwealth v. Burkett, 5 A.3d 1260, 1267
(Pa. Super. 2010)).
The law governing Appellant’s argument is well settled. The Crimes
Code provides: “(c) Conspiracy with multiple criminal objectives.--If a
person conspires to commit a number of crimes, he is guilty of only one
conspiracy so long as such multiple crimes are the object of the same ____________________________________________
1 Appellant does not identify the basis for his eligibility for relief under § 9543 of the PCRA. We observe that imposition of multiple sentences for one conspiracy is prohibited by statute. 18 Pa.C.S.A. § 903(c); Commonwealth v. Davis, 704 A.2d 650, 654-55 (Pa. Super. 1997), appeal denied, 719 A.2d 744 (Pa. 1998), cert. denied, 525 U.S. 1026 (1998). Thus, Appellant is eligible for relief under § 9543(a)(2)(vii).
-3- J-S34025-16
agreement or continuous conspiratorial relationship.” 18 Pa.C.S.A. § 903(c).
“Section 903(c) articulates a concept which is not new in American
jurisprudence, ‘The conspiracy is the crime, and that is one, however diverse
its objects.’” Commonwealth v. Lore, 487 A.2d 841, 855 (Pa. Super.
1984) (quoting Braverman v. United States, 317 U.S. 49, 54 (1942)).
In Commonwealth v. Barnes, 871 A.2d 812 (Pa. Super. 2005),
affirmed per curiam, 924 A.2d 1202 (Pa. 2007), the defendant and several
cohorts purchased drugs in New York City and were selling them in Scranton
over a period of several days. Id. at 815. One of the defendant’s cohorts
shot and killed a purchaser when the purchaser complained about the
quantity and quality of cocaine he received. Id. at 816. The defendant
removed cocaine from the victim’s hands. Id. The defendant was convicted
of three conspiracies: to commit third degree murder, robbery, and delivery
of a controlled substance. Id. at 817. Citing § 903(c), this Court wrote, “for
appellant to be convicted of three counts of conspiracy, there must be
separate agreements, or separate conspiratorial relationships, to support
each conviction.” Id. at 820.
The factors most commonly considered in a totality of the circumstances analysis of the single vs. multiple conspiracies issue ... are: the number of overt acts in common; the overlap of personnel; the time period during which the alleged acts took place; the similarity in methods of operation; the locations in which the alleged acts took place; the extent to which the purported conspiracies share a common objective; and, the degree to which interdependence is needed for the overall operation to succeed.
-4- J-S34025-16
Id. (quoting Davis, 704 A.2d at 654). The Barnes Court concluded the
defendant did not commit multiple conspiracy offenses. “These acts [leading
to the defendant’s convictions] occurred almost simultaneously, at one
location, the same method was employed and the same objective was
pursued.” Id. at 821.
In Davis, the defendant and several friends, armed with a baseball
bat, sought out the victim to collect a drug debt. Davis, 704 A.2d at 650
(Pa. Super. 1997). Ultimately, they beat the victim to death. Id. The
defendant was convicted of conspiracy to commit third degree murder and
conspiracy to commit robbery. Id. The defendant argued that he and his
Free access — add to your briefcase to read the full text and ask questions with AI
J-S34025-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee
v.
KRISTEN LYNN STRAUSSER
Appellant No. 1840 MDA 2015
Appeal from the PCRA Order entered September 21, 2015 In the Court of Common Pleas of Columbia County Criminal Division at No: CP-19-CR-0000381-2009 and CP-19-CR-0000517-2009
BEFORE: PANELLA, STABILE, and JENKINS, JJ.
MEMORANDUM BY STABILE, J.: FILED JUNE 22, 2016
Appellant, Kristen Lynn Strausser, appeals from the September 21,
2015 order granting in part and denying in part her petition pursuant to the
Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. We affirm.
The record reveals that Appellant, then 31 years old, and her
boyfriend, Colton Barrett, then 18 years old, worked together at a volunteer
fire department. They wished to create for themselves an opportunity to
fight a residential fire and perform a live rescue. On March 16, 2009,
Appellant and Barret went out together and identified the home of 89-year-
old Raymond Belles as their target. They obtained gasoline and returned to
Belles’ home at 2 a.m. the following morning. Barrett poured gasoline on J-S34025-16
Belles’ porch and garage and ignited it. He later responded to the Belles’ fire
as a firefighter. Belles escaped unharmed prior to the firefighters’ arrival.
On May 11, 2009, Barrett set fire to the home of Ernest and Anna
Margaret Robbins without Appellant’s involvement. The Commonwealth did
not charge Appellant with any crime related to the Robbins fire. The Robbins
fire caused little damage and the Robbinses escaped without injury.
Appellant and Barrett both responded to the Robbins fire as firefighters. At
the scene of the Robbins fire, Appellant asked Barrett to set another fire.
Within hours, Barrett set fire to the home of Reuben and Pauline Albertson,
aged 84 and 77, respectively. Barrett poured gasoline in the Albertson’s
enclosed front porch and ignited it. Both Albertsons suffered severe injuries.
They survived, albeit with lingering complications from their injuries, and
their home was destroyed.
On January 28, 2011, a jury found Appellant guilty of multiple counts
of conspiracy (18 Pa.C.S.A. § 903), including conspiracies to commit third
degree murder (18 Pa.C.S.A. § 2502(c)), aggravated assault (18 Pa.C.S.A.
§ 2702), arson (18 Pa.C.S.A. § 3301), and burglary (18 Pa.C.S.A. § 3502).
On April 7, 2011, the trial court imposed an aggregate 17 to 34 years of
incarceration. This Court affirmed the judgment of sentence on January 3,
2013. Appellant filed this timely first PCRA petition on January 9, 2014. The
PCRA court conducted a hearing on September 16, 2015 and entered the
order on appeal on September 21, 2015. The PCRA court’s September 21,
-2- J-S34025-16
2015 order vacated all but two of Appellant’s conspiracy convictions—one for
the Belles fire and one for the Albertson fire. Appellant argues there was
only one conspiracy because she and Barrett agreed to burn multiple homes.
The sole issue on appeal is whether the PCRA court erred in finding that the
Belles arson and the Albertson arson were the subject of separate
conspiracies.1
We review the PCRA court’s order denying relief to determine whether
the PCRA court committed an error of law and whether the record supports
the PCRA court’s factual findings. Commonwealth v. Brandon, 51 A.3d
231, 233 (Pa. Super. 2012). “In evaluating a PCRA court’s decision, our
scope of review is limited to the findings of the PCRA court and the evidence
of record, viewed in the light most favorable to the prevailing party at the
trial level.” Id. (quoting Commonwealth v. Burkett, 5 A.3d 1260, 1267
(Pa. Super. 2010)).
The law governing Appellant’s argument is well settled. The Crimes
Code provides: “(c) Conspiracy with multiple criminal objectives.--If a
person conspires to commit a number of crimes, he is guilty of only one
conspiracy so long as such multiple crimes are the object of the same ____________________________________________
1 Appellant does not identify the basis for his eligibility for relief under § 9543 of the PCRA. We observe that imposition of multiple sentences for one conspiracy is prohibited by statute. 18 Pa.C.S.A. § 903(c); Commonwealth v. Davis, 704 A.2d 650, 654-55 (Pa. Super. 1997), appeal denied, 719 A.2d 744 (Pa. 1998), cert. denied, 525 U.S. 1026 (1998). Thus, Appellant is eligible for relief under § 9543(a)(2)(vii).
-3- J-S34025-16
agreement or continuous conspiratorial relationship.” 18 Pa.C.S.A. § 903(c).
“Section 903(c) articulates a concept which is not new in American
jurisprudence, ‘The conspiracy is the crime, and that is one, however diverse
its objects.’” Commonwealth v. Lore, 487 A.2d 841, 855 (Pa. Super.
1984) (quoting Braverman v. United States, 317 U.S. 49, 54 (1942)).
In Commonwealth v. Barnes, 871 A.2d 812 (Pa. Super. 2005),
affirmed per curiam, 924 A.2d 1202 (Pa. 2007), the defendant and several
cohorts purchased drugs in New York City and were selling them in Scranton
over a period of several days. Id. at 815. One of the defendant’s cohorts
shot and killed a purchaser when the purchaser complained about the
quantity and quality of cocaine he received. Id. at 816. The defendant
removed cocaine from the victim’s hands. Id. The defendant was convicted
of three conspiracies: to commit third degree murder, robbery, and delivery
of a controlled substance. Id. at 817. Citing § 903(c), this Court wrote, “for
appellant to be convicted of three counts of conspiracy, there must be
separate agreements, or separate conspiratorial relationships, to support
each conviction.” Id. at 820.
The factors most commonly considered in a totality of the circumstances analysis of the single vs. multiple conspiracies issue ... are: the number of overt acts in common; the overlap of personnel; the time period during which the alleged acts took place; the similarity in methods of operation; the locations in which the alleged acts took place; the extent to which the purported conspiracies share a common objective; and, the degree to which interdependence is needed for the overall operation to succeed.
-4- J-S34025-16
Id. (quoting Davis, 704 A.2d at 654). The Barnes Court concluded the
defendant did not commit multiple conspiracy offenses. “These acts [leading
to the defendant’s convictions] occurred almost simultaneously, at one
location, the same method was employed and the same objective was
pursued.” Id. at 821.
In Davis, the defendant and several friends, armed with a baseball
bat, sought out the victim to collect a drug debt. Davis, 704 A.2d at 650
(Pa. Super. 1997). Ultimately, they beat the victim to death. Id. The
defendant was convicted of conspiracy to commit third degree murder and
conspiracy to commit robbery. Id. The defendant argued that he and his
friends had only one agreement: to retrieve money from the victim by
force. Id. at 654. The Commonwealth argued that a second agreement
arose during the attack when it escalated to a murder. Id. This Court
concluded that the malice necessary to commit third degree murder was
subsumed within the conspirators’ original agreement, given their
agreement to use a baseball bat. Id.
Instantly, the Commonwealth relies on Commonwealth v. Troop,
571 A.2d 1084 (Pa. Super. 1990), appeal denied, 584 A.2d 317 (Pa. 1990),
in which the defendant and four accomplices committed three separate
gunpoint robberies within a span of several days. The defendant was
convicted of a separate count of conspiracy for each robbery. Id. at 1085.
The defendant argued the conspirators had a common goal for the three
-5- J-S34025-16
robberies: to obtain drug money. Id. at 1090. The Troop Court rejected
the defendant’s argument, reasoning that the robberies took place at
separate times and in separate places. Id. The record contained no
evidence of a plan that encompassed three robberies. Id.
Similarly, in Commonwealth v. Herrick, 660 A.2d 51 (Pa. Super.
1995), appeal denied, 672 A.2d 305 (Pa. 1996), the defendant and his
associate sold drugs to a confidential informant on two consecutive days.
Id. at 53. The defendant was convicted of two counts of conspiracy to
deliver a controlled substance. Id. This Court acknowledged that “there
were two drug transactions, both involving the same people, the same
location, held under similar circumstances, committed within one day of
each other.” Id. at 55. Nevertheless, “[n]either illegal transaction with [the
confidential informant] was necessarily intertwined with the other; both were
independent phenomena. [. . .] [T]he execution of one drug transaction was
not necessary for the other one to succeed.” Id. Thus, the Herrick Court
concluded each transaction was a distinct conspiracy. Id.
Instantly, Appellant and Barrett committed two similar crimes at
different locations approximately two months apart. Appellant argues these
crimes took place in furtherance of a common plan of fighting fires inside
burning homes. Also, the crimes involved the same two coconspirators and
the same methods. The Commonwealth counters that Barrett testified that
he and Appellant contemplated setting only one fire when they went out
-6- J-S34025-16
together on March 16, 2009. Subsequently, Barrett set a second fire acting
alone. He set the third fire—the Albertson fire, at Appellant’s request.
In our view, Troop and Herrick teach that the repetition of similar
crimes is not, in and of itself, evidence of a single conspiracy. Absent
evidence that the “multiple crimes are the object of the same agreement”,
the law does not prohibit convictions for multiple conspiracies. 18 Pa.C.S.A.
§ 903(c). Here, the record lacks evidence that the Belles fire and the
Albertson fire were the object of the same agreement. They were distinct in
time and location, and the record supports the PCRA court’s conclusion that
Appellant and Barrett did not form an agreement to commit multiple arsons.
As in Herrick, there is no interdependence between the coconspirators’
separate offenses. Rather, Appellant and Barrett conspired to burn the
Belles home in March of 2009. When that did not achieve the desired result,
the decided to burn another home in May of 2009. Unlike Barnes and
Davis, the record does not reflect one agreement that encompasses multiple
offenses. We discern no error in the PCRA court’s decision.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 6/22/2016
-7-