Opinion
J-A23002-15 No. 1779 WDA 2013
09-24-2015
COMMONWEALTH OF PENNSYLVANIA, Appellee v. WILLIAM HUGHES, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence entered on July 16, 2013 in the Court of Common Pleas of Allegheny County, Criminal Division, No. CP-02-CR-0009919-2012 BEFORE: GANTMAN, P.J., LAZARUS and MUSMANNO, JJ. MEMORANDUM BY MUSMANNO, J.:
William Hughes ("Hughes") appeals from the judgment of sentence imposed after he was convicted of three counts of aggravated assault and one count each of criminal conspiracy and criminal mischief. We affirm.
See 18 Pa.C.S.A. §§ 2702(a)(1), (4); 903(a)(1); 3304(a)(5).
In its Pa.R.A.P. 1925(a) Opinion, the trial court thoroughly set forth the facts underlying this appeal, which arises out of an assault on John Hrabolowski ("Hrabolowski") and John Szwaczkowski ("Szwaczkowski"), perpetrated by Hughes and his co-defendant, Sherryl Feli ("Feli"). See Trial Court Opinion, 10/21/14, at 4-8. We adopt the trial court's recitation herein by reference. See id.
Following the assault, the Commonwealth charged Hughes with one count each of criminal conspiracy, criminal mischief and aggravated assault - serious bodily injury (hereinafter "aggravated assault - SBI"), and two counts of aggravated assault - deadly weapon used (hereinafter "aggravated assault - DW"), pertaining to his assaults upon Hrabolowski and Szwaczkowski, respectively.
The matter proceeded to a non-jury trial, after which the trial court found Hughes guilty on all counts. On July 16, 2013, the trial court imposed an aggregate sentence of 7½ to 15 years in prison, followed by ten years of probation. Hughes filed a post-sentence Motion, which the trial court denied. Hughes thereafter timely filed a Notice of Appeal, and a Pa.R.A.P. 1925(b) Concise Statement of Errors Complained of on Appeal.
The trial court found Feli guilty of essentially the same charges as Hughes. She also filed a direct appeal, docketed before this panel at 1672 WDA 2013.
On appeal, Hughes presents the following issues for our review:
1. Did the trial court err in convicting [] Hughes of the offenses against [] Hrabolowski (counts one and two, aggravated assault [- SBI, and aggravated assault - DW),] when the evidence was insufficient to sustain a conviction at these counts and in spite of the weight of the evidence when [] Hughes did not have physical contact with [] Hrabolowski?Brief for Appellant at 3.
2. Did the trial court err in convicting [] Hughes of criminal conspiracy [], when the evidence was insufficient to sustain [this] conviction [] and in spite of the weight of the evidence, when no evidence suggested that [] Hughes directed [] Feli in her actions against [] Hrabolowski?
3. Did the trial court err in sentencing [] Hughes to a term of incarceration that was manifestly excessive and without consideration of [] Hughes'[s] rehabilitative needs?
Hughes first challenges the sufficiency of the evidence supporting his convictions of (1) aggravated assault - SBI; and (2) aggravated assault - DW, concerning his assault of Hrabolowski. Id. at 8-10. Hughes also argues, in a single sentence, that both of these convictions are against the weight of the evidence. Id. at 10. We will address Hughes's challenges to each of these convictions separately.
We apply the following standard of review when considering a challenge to the sufficiency of the evidence:
The standard we apply ... 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 [that of] 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 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 finder 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. Melvin , 103 A.3d 1, 39-40 (Pa. Super. 2014) (citation omitted).
Our standard in reviewing a weight of the evidence claim is as follows:
Appellate review of a weight claim is a review of the exercise of discretion, not of the underlying question of whether the verdict is against the weight of the evidence. Because the trial judge
has had the opportunity to hear and see the evidence presented, an appellate court will give the gravest consideration to the findings and reasons advanced by the trial judge when reviewing a trial court's determination that the verdict is against the weight of the evidence. One of the least assailable reasons for granting or denying a new trial is the lower court's conviction that the verdict was or was not against the weight of the evidence and that a new trial should be granted in the interest of justice.Commonwealth v. Clay , 64 A.3d 1049, 1055 (Pa. 2013) (emphasis and citations omitted).
Relief on a weight of the evidence claim is reserved for extraordinary circumstances, when the [fact-finder's] verdict is so contrary to the evidence as to shock one's sense of justice and the award of a new trial is imperative so that right may be given another opportunity to prevail. On appeal, [an appellate] Court cannot substitute its judgment for that of the [fact-finder] on issues of credibility, or that of the trial judge respecting weight. Our review is limited to determining whether the trial court abused its discretion[.]Commonwealth v. Sanchez , 36 A.3d 24, 27 (Pa. 2011) (citations and quotation marks omitted).
Hughes first challenges his conviction of aggravated assault - DW, pertaining to Hrabolowski, arguing that he cannot be properly convicted of this offense based upon a theory of accomplice liability. See Brief for Appellant at 10 (emphasizing that "Hughes never interacted with [] Hrabolowski during the physical altercation[,]" and asserting that "no testimony was presented at trial to suggest that [] Hughes was directing [] Feli in any way[.]"). Hughes argues that the evidence was insufficient, and this conviction was against the weight of the evidence, because the bicycle lock used by Feli to strike Hrabolowski on his forearms was not a "deadly weapon" under the statutory definition of this term. Id. Hughes asserts that "[t]he bicycle lock used by [] Feli cannot be considered a deadly weapon, as it was not used to inflict serious bodily injury or in a manner that might have resulted in a risk of serious bodily injury or death. ... Hughes should not be liable for [] Feli's own actions toward [] Hrabolowski." Id.
Hughes does not challenge his conviction of aggravated assault - DW pertaining to Szwaczkowski.
Though Hughes does not specifically so state, his argument implies that he does not believe he was properly convicted as Feli's accomplice/co-conspirator. We discuss separately Hughes's challenge to his conviction of conspiracy to commit aggravated assault.
The Crimes Code provides that a person is guilty of aggravated assault - DW if he or she "attempts to cause or intentionally or knowingly causes bodily injury to another with a deadly weapon[.]" 18 Pa.C.S.A. § 2702(a)(4) (footnote added). A "deadly weapon" is defined as "[a]ny firearm, whether loaded or unloaded, or any device designed as a weapon and capable of producing death or serious bodily injury, or any other device or instrumentality which, in the manner in which it is used or intended to be used, is calculated or likely to produce death or serious bodily injury." 18 Pa.C.S.A. § 2301 (emphasis added). In discussing what constitutes a deadly weapon, in the context of application of the deadly weapon enhancement for sentencing purposes, this Court observed as follows:
Bodily injury is defined as "[i]mpairment of physical condition or substantial pain." 18 Pa.C.S.A. § 2301.
"[I]tems not normally classified as deadly weapons can become so based upon their use under particular circumstances."
Commonwealth v. Rhoades , 2010 PA Super 204, 8 A.3d 912, 917 (Pa. Super. 2010) (intact glass bottle qualified as a deadly weapon). We found many examples in our cases: ... Commonwealth v. Scullin , 414 Pa. Super. 442, 607 A.2d 750 (Pa. Super. 1992) (tire iron thrown at victim was a deadly weapon); Commonwealth v. Cornish , 403 Pa. Super. 492, 589 A.2d 718, 721 (Pa. Super. 1991) (fireplace poker used to strike victim constitutes a deadly weapon); Commonwealth v. Brown , 402 Pa. Super. 369, 587 A.2d 6, 7 (Pa. Super. 1991) (saw used to stab victim was a deadly weapon); Commonwealth v. Chapman , 365 Pa. Super. 10, 528 A.2d 990 (Pa. Super. 1987) (straightedge razor placed at the face of an individual is a deadly weapon).Commonwealth v. Buterbaugh , 91 A.3d 1247, 1268 (Pa. Super. 2014) (en banc).
In Buterbaugh , the Court noted that "[t]he Crimes Code provides an almost verbatim definition of deadly weapon as the one set forth in the Sentencing Guidelines[.]" Buterbaugh , 91 A.3d at 1268.
Concerning accomplice liability, the Crimes Code provides that "[a] person is legally responsible for the conduct of another person when he is an accomplice of such other person in the commission of the offense." 18 Pa.C.S.A. § 306(b)(3). Section 306 defines an accomplice, in relevant part, as follows:
A person is an accomplice of another person in the commission of an offense if:
(1) with the intent of promoting or facilitating the commission of the offense, he:
Id. § 306(c)(1). "[These] requirements may be established wholly by circumstantial evidence. Only the least degree of concert or collusion in the commission of the offense is sufficient to sustain a finding of responsibility as an accomplice. No agreement is required, only aid." Commonwealth v. Knox , 50 A.3d 749, 755 (Pa. Super. 2012) (citation omitted). "[P]roof of a criminal partnership is almost invariably extracted from the circumstances that attend its activities." Id. at 755-56 (citation omitted).(i) solicits such other person to commit it; or
(ii) aids or agrees or attempts to aid such other person in planning or committing it[.]
In its Opinion, the trial court addressed Hughes's claims and the applicable law, concluding that the evidence was sufficient to sustain Hughes's conviction, as Feli's co-conspirator and accomplice, of aggravated assault - DW. See Trial Court Opinion, 10/21/14, at 15-17; see also Buterbaugh , supra (collecting cases ruling that objects not normally classified as deadly weapons became so based upon their use under particular circumstances). We agree and affirm based upon the trial court's Opinion with regard to Hughes's sufficiency challenge. See Trial Court Opinion, 10/21/14, at 15-17.
Concerning Hughes's claim that his conviction of aggravated assault - DW was against the weight of the evidence, he has failed to develop his claim in any meaningful fashion, and, therefore, we could deem it waived. See Umbelina v. Adams , 34 A.3d 151, 161 (Pa. Super. 2011) (stating that "[w]here an appellate brief fails to provide any discussion of a claim with citation to relevant authority or fails to develop the issue in any other meaningful fashion capable of review, that claim is waived." (citation omitted)); Pa.R.A.P. 2119(a). Nevertheless, we discern no abuse of discretion by the trial court in rejecting Hughes's weight of the evidence claim. See Trial Court Opinion, 10/21/14, at 16. The trial court's verdict is not so contrary to the evidence as to shock our collective sense of justice. See Sanchez , supra.
Next, Hughes challenges the sufficiency and weight of the evidence supporting his conviction of aggravated assault - SBI, advancing the same arguments that he did in the above-discussed claim. See Brief for Appellant at 8-10. Hughes additionally argues that "[a]lthough [Feli's] action[s in striking Hrabolowski on the arms with her bike lock] caused some injury, [] Hrabolowski testified that he did not seek medical treatment for this injury, thereby indicating that he did not believe his injury serious enough that there was a substantial risk of permanent disfigurement or impairment." Id. at 10. Though Hughes does not explicitly raise this argument, he appears to challenge the trial court's finding that Feli, his accomplice, had inflicted, or attempted to inflict, "serious bodily injury" upon Hrabolowski, a requisite element of the offense. Id.
A person is guilty of aggravated assault - SBI if she "attempts to cause serious bodily injury to another, or causes such injury intentionally, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life[.]" 18 Pa.C.S.A. § 2702(a)(1) (footnote added). "Aggravated assault [- SBI] does not require proof that serious bodily injury was inflicted[,] but only that an attempt was made to cause such injury. Where the victim does not sustain serious bodily injury, the Commonwealth must prove that the appellant acted with specific intent to cause serious bodily injury." Commonwealth v. Lewis , 911 A.2d 558, 564 (Pa. Super. 2006) (citations omitted); see also 18 Pa.C.S.A. § 901(a) (providing that "[a] person commits an attempt when, with intent to commit a specific crime, [s]he does any act which constitutes a substantial step toward the commission of that crime.").
"Serious bodily injury" is defined as "bodily injury which creates a substantial risk of death or which causes serious, permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ." 18 Pa.C.S.A. § 2301.
"A person acts intentionally with respect to a material element of an offense when ... it is [her] conscious object to engage in conduct of that nature or to cause such a result ...." 18 Pa.C.S. § 302(b)(1)(i). As intent is a subjective frame of mind, it is of necessity difficult of direct proof. The intent to cause serious bodily injury may be proven by direct or circumstantial evidence.Commonwealth v. Matthew , 909 A.2d 1254, 1257 (Pa. 2006) (citations to case law and internal quotation marks omitted). "[A] determination of whether an appellant acted with intent to cause serious bodily injury must be determined on a case-by-case basis." Commonwealth v. Dailey , 828 A.2d 356, 360 (Pa. Super. 2003); see also id. (observing that, "depending on the other circumstances, even a single punch may be sufficient.").
In the instant case, it is undisputed that Hrabolowski did not suffer "serious bodily injury" under the statutory definition of this term. Accordingly, the relevant inquiry is whether Feli attempted and intended to inflict serious bodily injury upon Hrabolowski. See Matthew , supra.
In its Opinion, the trial court addressed Hughes's claims and concluded that (1) the evidence was sufficient to establish that Feli had attempted and intended to inflict serious bodily injury upon Hrabolowski; (2) the verdict as to this count was not against the weight of the evidence; and (3) therefore, Hughes could properly be convicted of aggravated assault - SBI as Feli's accomplice. See Trial Court Opinion, 10/21/14, at 18-20. The trial court's analysis is supported by the record and the law, and we affirm on this basis with regard to Hughes's claims. See id.
In his second issue, Hughes argues that the evidence was insufficient to sustain his conviction of criminal conspiracy to commit aggravated assault, and the verdict as to this count was against the weight of the evidence. See Brief for Appellant at 11-12. According to Hughes,
[a]lthough it was established that [] Hughes and [] Feli were in a relationship together and were riding their bicycles together to a shared destination at the time this incident occurred, no evidence established a "unity of criminal purpose" between them. ... No evidence presented at trial suggested that [] Hughes had any connection to [] Feli's actions other than his presence at the time of the incident.Id. (paragraph break omitted) (citing Commonwealth v. Thomas , 65 A.3d 939, 945 (Pa. Super. 2013) (rejecting the defendant's sufficiency challenge concerning his conviction of conspiracy to commit aggravated assault where the relationship between the defendant and his four co-conspirators, their conduct during the assault, and overall circumstances established that they had "acted with a 'unity of criminal purpose.'")).
"To sustain a conviction for criminal conspiracy, the Commonwealth must establish that the defendant (1) entered into an agreement to commit or aid in an unlawful act with another person or persons, (2) with a shared criminal intent[,] and (3) an overt act was done in furtherance of the conspiracy." Commonwealth v. Hennigan , 753 A.2d 245, 253 (Pa. Super. 2000) (citation omitted); see also 18 Pa.C.S.A. § 903(a).
The essence of a criminal conspiracy is a common understanding, no matter how it came into being, that a particular criminal objective be accomplished. Therefore, a conviction for conspiracy requires proof of the existence of a shared criminal intent. An explicit or formal agreement to commit crimes can seldom, if ever, be proved and it need not be, for proof of a criminal partnership is almost invariably extracted from the circumstances that attend its activities. Thus, a conspiracy may be inferred where it is demonstrated that the relation, conduct, or circumstances of the parties, and the overt acts of the co-conspirators[,] sufficiently prove the formation of a criminal confederation. The conduct of the parties and the circumstances surrounding their conduct may create a web of evidence linking the accused to the alleged conspiracy beyond a reasonable doubt. Even if the conspirator did not act as a principal in committing the underlying crime, he is still criminally liable for the actions of his co-conspirators in furtherance of the conspiracy.Knox , 50 A.3d at 755 (citation omitted). Stated differently, an "agreement to commit an unlawful 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." Thomas , 65 A.3d at 943 (Pa. Super. 2013) (citation omitted).
As discussed above, the evidence was sufficient to sustain the trial court's finding that Feli possessed the requisite intent to commit aggravated assault - SBI on Hrabolowski. Accordingly, for purposes of determining whether Hughes can properly be convicted as Feli's co-conspirator, we limit our discussion to whether the circumstantial evidence established an agreement between Feli and Hughes to assault Hrabolowski. See Hennigan , supra.
Here, the trial court addressed Hughes's challenge to his conspiracy conviction in its Opinion, concluding that the circumstantial evidence was sufficient to establish a criminal understanding between Feli and Hughes. See Trial Court Opinion, 10/21/14, at 11-13. We agree with the trial court's analysis and conclusion, which is supported by the record, and affirm on this basis with regard to Hughes's sufficiency challenge to his conspiracy conviction. See id. Moreover, the verdict on this count was not so contrary to the evidence as to shock one's sense of justice; the rationale in the trial court's Opinion concerning Hughes's weight challenge establishes that the court properly exercised its discretion in rejecting this claim. See id. at 14; see also Sanchez , supra.
Finally, Hughes asserts that the sentencing court abused its discretion by imposing an excessive sentence and failing to consider (1) his rehabilitative needs (and, particularly, his mental health issues and independent steps taken in pursuit of rehabilitation); and (2) the fact that Hughes's prior convictions that were used to compute his prior record score occurred several years before the instant assaults. See Brief for Appellant at 13-15.
Hughes's claim challenges the discretionary aspects of his sentence, from which there is no absolute right to appeal. See Commonwealth v. Hill , 66 A.3d 359, 363 (Pa. Super. 2013). Rather, where, as here, the appellant has preserved the discretionary sentencing claim for appellate review by raising it in a timely post-sentence motion, the appellant must (1) include in his brief a concise statement of the reasons relied upon for allowance of appeal with respect to the discretionary aspects of a sentence, pursuant to Pa.R.A.P. 2119(f); and (2) show that there is a substantial question that the sentence imposed is not appropriate under the Sentencing Code. Hill , 66 A.3d at 363-64.
Here, Hughes's brief does not contain a Rule 2119(f) statement, and the Commonwealth has objected to this defect. See Commonwealth's Brief at 34. Accordingly, this issue is waived. See Commonwealth v. Robinson , 931 A.2d 15, 19, 22 (Pa. Super. 2007) (en banc) (finding waiver of the appellant's discretionary aspects of sentencing claim because he had failed to include a Rule 2119(f) statement in his brief, and the Commonwealth objected to this defect).
Even if we did not find waiver, we would determine that Hughes's challenge to his sentence lacks merit based upon the reasoning advanced by the trial court in its Opinion. See Trial Court Opinion, 10/21/14, at 20-25 (stating, inter alia, that the sentencing court did, in fact, consider the age of Hughes's prior convictions, and that the sentence imposed was within the standard range of the sentencing guidelines); see also Commonwealth v. Moury , 992 A.2d 162, 171 (Pa. Super. 2010) (stating that "where a sentence is within the standard range of the guidelines, Pennsylvania law views the sentence as appropriate under the Sentencing Code.").
Accordingly, because we conclude that the trial court did not abuse its discretion, or commit an error of law, in rejecting Hughes's challenges to the weight and sufficiency of the evidence, and his sentencing challenge is waived, we affirm the judgment of sentence.
Judgment of sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/24/2015
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