Opinion
J-S23008-17 No. 1288 EDA 2015
04-21-2017
COMMONWEALTH OF PENNSYLVANIA, Appellee v. DUSTIN D. CROMPTON, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence of December 4, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0006722-2013 BEFORE: OLSON, SOLANO and MUSMANNO, JJ. MEMORANDUM BY OLSON, J.:
Appellant, Dustin D. Crompton, appeals from the judgment of sentence entered on December 4, 2014, following his bench trial convictions for aggravated assault, simple assault, conspiracy to commit simple assault, recklessly endangering another person, and possessing an instrument of crime. We affirm Appellant's convictions, vacate the sentence for conspiracy to commit simple assault and remand for resentencing, and affirm Appellant's remaining sentences.
18 Pa.C.S.A. §§ 2702, 2701, 903, 2705, and 907, respectively.
We briefly summarize the facts and procedural history of this case as follows. On September 26, 2012, Kristen Kubach, a co-defendant, got into a verbal altercation with the victim inside a Philadelphia house where both individuals resided. Kubach left, but returned later with her brother, Appellant, and Appellant's girlfriend, Helena Morales. An altercation ensued with Appellant and the victim exchanging punches. The victim landed onto a couch and Appellant, Kubach, and Morales began punching and kicking the victim. Morales held the victim so that Appellant could continue punching him. The victim testified that he felt a hard object strike his head and heard Kubach and Morales encouraging Appellant to continue hitting the victim. The victim's fiancé was an eyewitness to the incident. She testified that she observed Kubach strike the victim, across the left side of his head, with a baseball bat. The victim's fiancé was able to stop Kubach from striking the victim again with the bat. Morales took the bat and left the scene in Appellant's car, along with Appellant and Kubach. The victim was taken to the hospital where he was treated for nausea, vomiting, and loss of consciousness. The victim also required 14 stitches for a one-inch gash on his forehead.
The trial court held a bench trial on September 18, 2014 and found Appellant guilty of the aforementioned charges. On December 4, 2014, the trial court sentenced Appellant to three-and-one-half to seven years of imprisonment for aggravated assault and an identical, concurrent sentence for conspiracy to commit simple assault. The trial court imposed no further penalty on the remaining convictions. On December 12, 2014, Appellant filed a motion for reconsideration, which was denied by operation of law on April 10, 2015. This timely appeal resulted.
Upon review of the certified record, the sentencing order states that the conspiracy to commit simple assault was graded as a second-degree misdemeanor. As the trial court later recognized, and we will discuss at length later, because the statutory maximum for a second-degree misdemeanor is two years, the sentence of three-and-one-half to seven years for conspiracy to commit simple assault is illegal. See 18 Pa.C.S.A. § 1104.
Appellant filed a notice of appeal on May 5, 2015. On January 27, 2016, the trial court ordered Appellant to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant complied timely on February 16, 2016. The trial court issued an opinion pursuant to Pa.R.A.P. 1925(a) on August 3, 2016.
On appeal, Appellant presents the following issues for our review:
I. Is [Appellant] entitled to an arrest of judgment as the evidence [was] insufficient to sustain the verdict?Appellant's Brief at 3.
II. Is [Appellant] entitled to a new trial on all charges as the greater weight of the evidence does not support the verdict?
First, Appellant argues that the evidence was insufficient to support his convictions. Regarding conspiracy, he claims that just because he "came to the home with the two women does not mean there was a conspiracy." Id. at 11. He claims that the fight at issue began as a fistfight between him and the victim and that Kubach and Morales joined in the "general melee" without provocation. Id. at 10. Regarding aggravated assault, Appellant claims he did not strike the victim with a baseball bat, did not "even [know] that the bat was [at the scene,] and the evidence does not indicate that he encouraged [Kubach] to use the bat." Id.
Our standard of review when considering challenges to the sufficiency of the evidence is well settled:
The standard we apply in reviewing the sufficiency of the evidence is whether viewing all the evidence admitted at trial in the light most favorable to the verdict winner, there is sufficient evidence to enable the fact-finder to find every element of the crime beyond a reasonable doubt. In applying the above test, we may not weigh the evidence and substitute our judgment for the fact-finder. In addition, we note that the facts and circumstances established by the Commonwealth need not preclude every possibility of innocence. Any doubts regarding a defendant's guilt may be resolved by the fact-finder unless the evidence is so weak and inconclusive that as a matter of law no probability of fact may be drawn from the combined circumstances. The Commonwealth may sustain its burden of proof or proving every element of the crime beyond a reasonable doubt by means of wholly circumstantial evidence. Moreover, in applying the above test, the entire record must be evaluated and all evidence actually received must be considered. Finally, the trier of fact while passing upon the credibility of witnesses and the weight of the evidence produced, is free to believe all, part or none of the evidence.Commonwealth v. Hicks , 151 A.3d 216, 221-222 (Pa. Super. 2016) (citation omitted).
The trial court determined that the evidence was sufficient to support a conspiracy because the fight at issue was in response to an earlier altercation and Appellant and his co-defendants "all drove to the property together, entered the house together, fought together, and subsequently left together." Trial Court Opinion, 8/3/2016, at 8. During the altercation, the two co-defendants encouraged Appellant to continue punching the victim. Id. The trial court found there was sufficient evidence to support Appellant's aggravated assault conviction because Appellant punched the victim "in the face multiple times, while holding [the victim] down, rendering him unable protect himself" and that Appellant "acted with the intent to cause protracted impairment or disfigurement to the several [of the victim's] sensitive bodily members[,] including his eyes and nose." Id. at 7. Moreover, the trial court determined that even if Appellant did not intend for his co-defendant to strike the victim with a baseball bat, such conduct constitutes aggravated assault, and Appellant was criminally liable for the actions of his co-conspirators in furtherance of the conspiracy.
In his second issue presented, Appellant similarly claims his convictions were against the weight of the evidence because he "could not have possibly entered into an agreement to commit an aggravated assault which necessarily implicated the bat where the bat was already at the scene of the event and where the bat was not brought to the scene by [Appellant] or his alleged co-conspirators." Id. at 12-13.
Appellant was actually convicted of conspiracy to commit simple assault. --------
Our standard of review is clear:
the weight attributed to the evidence is a matter exclusively for the fact finder, who is free to believe all, part, or none of
the evidence and to determine the credibility of the witnesses. The grant of a new trial is not warranted because of a mere conflict in the testimony and must have a stronger foundation than a reassessment of the credibility of witnesses. Rather, the role of the trial judge is to determine that, notwithstanding all of the facts, certain facts are so clearly of greater weight, that to ignore them or to give them equal weight with all of the facts is to deny justice.
An appellate court's purview:
is extremely limited and is confined to whether the trial court abused its discretion in finding that the jury verdict did not shock its conscience. Thus, appellate review of a weight claim consists of a review of the trial court's exercise of discretion, not a review of the underlying question of whether the verdict is against the weight of the evidence.
Id. at 223 (citations and quotations omitted).
An appellate court may not reverse a verdict unless it is so contrary to the evidence as to shock one's sense of justice.
Here, the trial court "gave great weight to the testimony of [the victim] and [his fiancé] and found their testimony to be credible." Trial Court Opinion, 8/3/2016, at 9. The trial court also determined that "inconsistent testimony as to the wooden bat's ownership is not only minor but also not relevant to the trial." Id.
We have reviewed the certified record, parties' briefs, relevant law and the trial court's opinion entered on August 3, 2016. We conclude there has been no error or abuse of discretion in this case and that the trial court's August 3, 2016 opinion meticulously, thoroughly, and accurately disposes of the issues on appeal. Therefore, we affirm on the basis of the trial court's opinion and adopt it as our own. Because we have adopted the trial court's opinion, we direct the parties to include the trial court's opinion in all future filings relating to our examination of the merits of this appeal, as expressed herein.
Finally, the trial court recognized that it illegally sentenced Appellant to three-and-one-half to seven years of imprisonment for conspiracy to commit simple assault, a second-degree misdemeanor. Trial Court Opinion, 8/3/2016, at 11. Upon review, we agree.
Inchoate crimes like conspiracy have the same maximum sentences as the underlying crimes to which they relate. See 18 Pa.C.S.A. § 106; see also 18 Pa.C.S.A. § 905(a). Simple assault is a second-degree misdemeanor. See 18 Pa.C.S.A. § 2701(b). A person who has been convicted of a second-degree misdemeanor is subject to a maximum sentence of two years. See 18 Pa.C.S.A. § 1104. "If no statutory authorization exists for a particular sentence, that sentence is illegal and subject to correction." Commonwealth v. Randal , 837 A.2d 1211, 1214 (Pa. Super. 2003) (citation omitted). Challenges to "[a]n illegal sentence can never be waived and may be reviewed sua sponte by this Court." Id. "An illegal sentence must be vacated." Id.
Here, Appellant's sentence for conspiracy to commit simple assault was clearly illegal and must be corrected. "If this Court determines that a sentence must be corrected, we are empowered to either amend the sentence directly or to remand the case to the trial court for resentencing." Commonwealth v. Benchoff , 700 A.2d 1289, 1294 (Pa. Super. 1997) (citation omitted); see also Randal , 837 A.2d at 1214 (stating generally appellate court can amend sentence directly when record makes clear sentencing court had no authority to impose certain part of sentence). "[I]f we determine that a correction by this [C]ourt may upset the sentencing scheme envisioned by the trial court, the better practice is to remand." Id. (citation and internal quotations omitted). Moreover, it is well-settled that "[a]n appellate [c]ourt has no power to impose a sentence; that power is to be exercised exclusively by the trial court." Commonwealth v. Holiday , 954 A.2d 6, 10 (Pa. Super. 2008) (citation omitted). Where an appellate court determines a sentence is illegal or otherwise improper, the Court may not "superimpose its judgment on the trial court by directing the sentence to be imposed." Id.
In this case, the trial court recognized that it imposed an illegal sentence for conspiracy to commit simple assault, stated the statutory maximum sentence is two years for a second-degree misdemeanor, and requested we remand for resentencing on this conviction. Trial Court Opinion, 8/3/2016, at 11. However, the trial court did not specify the sentence it desired to impose upon resentencing or we could amend the sentence directly. Accordingly, we vacate Appellant's sentence for conspiracy to commit simple assault and remand to the trial court for resentencing.
Appellant's convictions for all offenses affirmed. Sentence for conspiracy to commit simple assault vacated and remanded for resentencing. Remaining sentences affirmed. Jurisdiction relinquished. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 4/21/2017
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