J-A13020-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    KHEMMATHAT FARISS                          :
                                               :
                        Appellant              :   No. 2046 EDA 2019

          Appeal from the Judgment of Sentence Entered June 10, 2019
      In the Court of Common Pleas of Chester County Criminal Division at
                        No(s): CP-15-CR-0002231-2017


BEFORE:      BENDER, P.J.E., LAZARUS, J., and STRASSBURGER, J.*

MEMORANDUM BY LAZARUS, J.:                                 Filed: August 25, 2020

        Khemmathat Fariss appeals from the judgment of sentence, entered in

the Court of Common Pleas of Chester County, following his plea of guilty but

mentally ill to one count each of attempted murder, robbery of a motor

vehicle,    burglary,    kidnapping,     aggravated   assault,   unlawful   restraint,

terroristic threats, false imprisonment, simple assault, and access device

fraud; two counts of strangulation; three counts each of robbery, theft by

unlawful taking, and receiving stolen property; and four counts of possession

of an instrument of crime (PIC).1 Upon careful review, we affirm.



____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S.A. §§ 901(a); 3702(a); 3502(a)(1)(i); 2901(a)(2); 2702(a)(1);
2902(a)(1); 2706(a)(1); 2903(a); 2701(a)(1); 4106(a)(1)(ii); 2718(a)(1),
(2); 3701(a)(1)(ii), (iii), (iv); 3921(a); 3925(a); and 907(a), respectively.
J-A13020-20



       The trial court relied on the Commonwealth’s recitation of the facts and

circumstances, set forth as follows, at the sentencing hearing:

       [On February 22, 2017,] prior to [] 11:00 a.m.[, Fariss], age
       [seventeen], entered the victim’s home [in] East Brandywine
       Township, Chester County, [] and stole some money and her
       credit cards.

       The victim[,] C[.]K[.], who was [seventy-two years old] at the
       time and lived alone in a small cottage [], discovered the cards
       missing and contacted [the] police[,] but decided she would
       complete the report after she returned from work. She went to
       work and returned home [at] about 5:00 p.m.

       When she entered her home[,] she was immediately attacked by
       [Fariss,] who was wearing black gloves and a mask. [Fariss]
       strangled [C.K.] and she lost consciousness as a result[. C.K.]
       regained consciousness as [Fariss] was restraining her. [Fariss]
       covered her head with a black fabric reusable shopping bag and
       secured it tightly around her neck with [d]uct tape. [Fariss] bound
       [C.K.’s] hands with zip ties and cloth, bound her knees and ankles
       with [d]uct tape[,] and threatened her by saying, [“Y]ou’ll be with
       Jesus.[”]

       [Fariss] then forced [C.K.] into a small dark closet under the stairs
       of the basement and jammed the outside closet latch with a screw
       to prevent [C.K.’s] exit, thereby, creating a condition which could
       have led to her death. [C.K.] was left there bound with no food,
       water, or light. The closet was in an unheated part of the house.[2]
       [C.K.] remained there in the closet until she was found by her
       daughter-in-law four days later on February 26[,] 2017.

       When she was found[, C.K.] was suffering from severe
       dehydration, malnutrition, and trauma. She had bruising under
       her eyes. Her nose and mouth were bloodied. She had bruises,
       blisters, and avulsions on her wrist and had ligature marks on her
       right wrist. The first responder who removed the bag from her


____________________________________________


2  The closet was not heated, and although it was February, the
temperature was in the seventies that week, which helped C.K. stay
alive. See N.T. Sentencing, 5/2/19, at 6.

                                           -2-
J-A13020-20


      head said that the [d]uct tape around [C.K.’s] neck was so tight
      that it was difficult to cut without risking cutting [her] neck.

      [C.K.] spent about a week in the hospital. She was diagnosed
      with acute renal failure[, a urinary tract infection, and]
      rhabdomyolysis, which is a condition [that] results from dying
      muscle fibers releasing contents into the bloodstream[] and [] can
      be caused by prolonged immobilization[. C.K.] also had infected
      wounds from lying in a prone position for so long, which required
      treatment over a course of months.

      While [Fariss] was at [C.K.’s] home[,] he stole her Fiat 500, an
      iPhone, a laptop, credit cards, clothing[,] and jewelry. [Fariss]
      was later identified on surveillance video at a 7-Eleven in the area
      of Baltimore, Maryland[,] where he arrived in [C.K.’s] car and used
      her credit card to make a purchase of $12.90 at around 10:00
      p.m. on February 22[, 2017,] the day of the attack.

      [Fariss] had absconded from Devereux residential treatment
      facility in Wallace Township early on the morning he attacked
      [C.K.]. [Fariss] returned to Devereux two days later on [February
      24, 2017,] which was still two days before [C.K.] was discovered.
      [C.K.’s] phone was later found on a windowsill near [Fariss’] room
      [at Devereux].

      When [Fariss] was arrested several days later[,] he had bruises
      on the inside of his arm consistent with choking [C.K.] The crime
      lab later determined that a fingerprint found on [d]uct tape used
      to bind [C.K.] matched [Fariss’ fingerprint,] and that th[e]
      fingerprint was [made with] [C.K.’s] blood.

      [C.K.’s] car was found a few months later[,] after the charges
      were filed[,] on a remote part of the Devereux facility’s property.
      [Fariss] returned to Devereux two days after the attack[. H]e told
      no one what he did.

      During the time he was gone[, Fariss] had [C.K.’s] phone and
      likely had access to other phones. [Fariss] was accessing social
      media. There were no anonymous calls or tips made to authorities
      alerting them to [C.K.’s] condition.

Trial Court Opinion, 9/17/19, at 5-6, (quoting N.T. Sentencing, 5/2/19, at 3-

7) (internal brackets omitted).




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      On March 2, 2017, the Commonwealth filed a juvenile petition charging

Fariss with the above-stated crimes. Three days later, the Commonwealth

filed a petition seeking to transfer the matter to the court of common pleas to

have Fariss tried as an adult. Following two hearings on the transfer petition,

the court entered an order granting the Commonwealth’s transfer request on

July 7, 2017. On January 31, 2019, Fariss entered an open plea of guilty but

mentally ill to all charges against him.     On February 5, 2019, the court

conducted a hearing to determine whether Fariss was mentally ill. Ultimately,

the court accepted Fariss’ open plea of guilty but mentally ill on April 2, 2019.

      On May 2, 2019, the court sentenced Fariss to an aggregate sentence

of twenty to eighty years’ incarceration. On May 13, 2019, Fariss filed a post-

sentence motion seeking reconsideration of his sentence, which the court

granted. Thereafter, the court reduced Fariss’ sentence to an aggregate term

of twenty to fifty years’ incarceration. Fariss timely filed a notice of appeal

and court-ordered Pa.R.A.P. 1925(b) concise statement of errors complained

of on appeal. He raises the following questions for our review:

      1. Whether the sentencing court sentenced outside the sentencing
      guidelines[,] making [Fariss’] sentence manifestly excessive and
      unreasonable?

      2. Whether the sentencing court abused its discretion when it
      sentenced within the sentencing guidelines but the case involves
      circumstances where the application of the guidelines would be
      clearly unreasonable?

      3. Whether the sentencing court erred, in regard to [t]erroristic
      [t]hreats, when it did not merge the charge for sentencing
      purposes, as agreed upon by the Commonwealth and [d]efense
      [c]ounsel prior to sentencing?

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J-A13020-20


Appellant’s Brief, at 6.

      Fariss’ first two claims implicate the discretionary aspects of his

sentence.   We have previously stated that defendants are not entitled to

review of the discretionary aspects of their sentences as of right; instead, this

Court’s jurisdiction must be invoked by satisfying a four-part test:

      We conduct a four-part analysis to determine: (1) whether
      appellant has filed a timely notice of appeal, see Pa.R.A.P.
      902 and 903; (2) whether the issue was properly preserved at
      sentencing or in a motion to reconsider and modify
      sentence, see Pa.R.Crim.P. 720; (3) whether appellant’s brief has
      a fatal defect, Pa.R.A.P. 2119(f); and (4) whether there is a
      substantial question that the sentence appealed from is not
      appropriate under the Sentencing Code, 42 Pa.C.S.A. § 9781(b).

Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010) (quoting

Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super 2006)) (internal

brackets omitted).

      In Commonwealth v. Kiesel, 854 A.2d 530 (Pa. Super. 2004), we

discussed the Rule 2119(f) requirements in greater detail:

      Rule 2119(f) requires only a concise statement of the reasons
      [a]ppellant believes entitle him to allowance of appeal. The
      concise statement must specify where the sentence falls in
      relation to the sentencing guidelines and what particular provision
      of the code it violates. Additionally, the statement must specify
      what fundamental norm the sentence violates and the manner in
      which it violates that norm. If the statement meets these
      requirements, we can decide whether a substantial question
      exists.

Id. at 532 (internal citations and quotation marks omitted) (citing

Commonwealth v. Goggins, 748 A.2d 721, 727 (Pa. Super. 2000) (en

banc)).



                                      -5-
J-A13020-20



      Here, in his Rule 2119(f) statement, Fariss first notes the four-part test

above, and then summarizes our Supreme Court’s holding in Commonwealth

v. Mouzon, 812 A.2d 617 (Pa. 2002): that an appellant does not, as a matter

of law, fail to raise a substantial question that his sentence was manifestly

excessive, merely because his sentence was imposed within the statutory

limits. See Appellant’s Brief, at 14-16; see also Mouzon, supra at 627 (if

appellant complies with all statutory and procedural requirements regarding

challenge to discretionary aspects of sentencing, and articulates substantial

question in Rule 2119(f) statement warranting appellate review, this Court

must review manner in which trial court exercised discretion). Fariss’ Rule

2119(f) statement then discusses the facts of his particular case:

      In the instant case, [Fariss asserts] that this [] Court can decide
      his case on the merits based on the holding in Mouzon. Similarly
      to the appellant in Mouzon, [Fariss] has articulated reasons why
      his sentence raises doubt that the trial court [] properly
      consider[ed] the general [sentencing] guidelines. (R[.R.] at 482a-
      486a). In [Fariss’] [c]oncise [s]tatement of [errors] [c]omplained
      [of] on [a]ppeal[,] [Fariss] cited to specific [c]ounts where he
      asserts the trial court erred or abused its discretion when ordering
      his judgment of sentence. (See Appendix C). [Fariss] has
      complied with all statutory and procedural requirements regarding
      a challenge to the discretionary aspects of his sentence and
      therefore this Court should proceed to his claim on the merits
      outlined below.

Appellant’s Brief, at 16-17.

      Here, Fariss’ citation to the record is to his motion for reconsideration of

sentence, filed on May 13, 2019, and his citation to “Appendix C” is to his Rule

1925(b) concise statement of errors complained of on appeal. Fariss’ Rule



                                      -6-
J-A13020-20



2119(f) statement does not “specify where his sentence falls in relation to the

sentencing guidelines” and fails to specify “the particular provision of the code”

his sentence violates. See Kiesel, supra.        Similarly, Fariss’ Rule 2119(f)

statement fails to “specify what fundamental norm [his] sentence violates and

the manner in which it violates that norm.” Id. Thus, we conclude that Fariss’

Rule 2119(f) statement is insufficient; therefore, we cannot review whether it

raises a substantial question.    See id.; see also Goggins, supra at 727

(“when a Rule 2119(f) statement ‘contains incantations of statutory provisions

and pronouncements of conclusions of law[,]’ it is inadequate.”).

      Also, we have previously stated:

      [t]he Rules of Appellate Procedure require that appellants
      adequately develop each issue raised with discussion of pertinent
      facts and pertinent authority. See Pa.R.A.P. 2119. It is not this
      Court’s responsibility to comb through the record seeking the
      factual underpinnings of an appellant’s claim. Further, this Court
      will not become counsel for an appellant and develop arguments
      on an appellant’s behalf.

Commonwealth v. Samuel, 102 A.3d 1001, 1005 (Pa. Super. 2014)

(internal citations omitted). In addition, we previously cautioned appellants

that Rule 2119(f) requires more than a simple citation to Mouzon.            See

Commonwealth v. Dodge, 77 A.3d 1263, 1271 (Pa. Super. 2013) (“[w]e

caution defendants that a simple citation to Mouzon, Dodge II, or another

case may not be sufficient where the facts of the case do not warrant the

conclusion that there is a plausible argument that the sentence is prima facie




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J-A13020-20



excessive based on the criminal conduct involved.”).3 Based on the foregoing,

we conclude that Fariss’ Rule 2119(f) statement is insufficient, and therefore,

we will not address the merits of his discretionary aspects of sentencing

claims. See Moury, supra.

       In his final claim, Fariss argues that his conviction for terroristic threats

should have merged for sentencing purposes. “A claim that crimes should

have merged for sentencing purposes raises a challenge to the legality of the

sentence. Therefore, our standard of review is de novo and our scope of

review is plenary.”      Commonwealth v. Quintua, 56 A.3d 399, 400 (Pa.

Super. 2012) (internal citation omitted).

       To support his argument, Fariss cites to Commonwealth v. Martinez,

153 A.3d 1025 (Pa. Super. 2016), and asserts that his situation is analogous

to that case.     In Martinez, our Court held that the defendant’s terroristic

threats and robbery convictions merged because “both offenses arose from

the same act” and the relevant charging instruments “did not allege criminal
____________________________________________


3 We conclude that Farris fails to raises a plausible argument that his sentence
is prima facie excessive based on his criminal conduct. Fariss’ sentence of
twenty to fifty years’ incarceration—in light of the disturbing nature and
circumstances of the attempted murder, aggravated assault, strangulation,
kidnapping, and other crimes he committed—is not prima facie excessive.
See Commonwealth v. Mastromarino, 2 A.3d 581, 589 (Pa. Super. 2010)
(“[s]entencing is a matter vested in the sound discretion of the sentencing
judge, and a sentence will not be disturbed on appeal absent a manifest abuse
of discretion. In this context, an abuse of discretion is not shown merely by
an error in judgment. Rather, the appellant must establish, by reference to
the record, that the sentencing court ignored or misapplied the law, exercised
its judgment for reasons of partiality, prejudice, bias or ill will, or arrived at a
manifestly unreasonable decision.”).


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J-A13020-20



acts that constituted terroristic threats as distinct or delineated from the

conduct that constituted robbery.” Id. at 1033.

      The court in Martinez explained the issue of merger as follows:

      Whether the[] offenses merge turns on [s]ection 9765 of our
      Sentencing Code, which provides:

         § 9765. Merger of sentences[.]

         No crimes shall merge for sentencing purposes unless the
         crimes arise from a single criminal act and all of the
         statutory elements of one offense are included in the
         statutory elements of the other offense. Where crimes
         merge for sentencing purposes, the court may sentence the
         defendant only on the higher graded offense.

      42 Pa.C.S.A. § 9765.

      The statute’s mandate is clear. It prohibits merger unless two
      distinct facts are present: (1) the crimes arise from a single
      criminal act; and (2) all of the statutory elements of one of the
      offenses are included in the statutory elements of the other.

      When considering whether there is a single criminal act or multiple
      criminal acts, the question is not whether there was a break in the
      chain of criminal activity. The issue is whether the actor commits
      multiple criminal acts beyond that which is necessary to establish
      the bare elements of the additional crime[; if so,] then the actor
      will be guilty of multiple crimes which do not merge for sentencing
      purposes.

      In determining whether two or more convictions arose from a
      single criminal act for purposes of sentencing, we must examine
      the charging documents filed by the Commonwealth.

Id. at 1030-31 (emphasis added) (internal quotation marks and citations

omitted). The Martinez court elaborated that, when analyzing the charging

documents, “the requirements were satisfied where the criminal complaint

and information set forth generic charges . . . while the affidavit of probable

cause supplied the factual narrative.” Id. at 1031-1032.

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      In Martinez, this Court held that merger was required, and we analyzed

the relevant charging documents as follows:

      Applying pertinent authority to the present matter, it is apparent
      from the criminal information, complaint, and affidavit of probable
      cause that the Commonwealth did not allege criminal acts that
      constituted terroristic threats as distinct or delineated from the
      conduct that constituted robbery. Indeed, the information offers
      only a generic recitation of the offenses and the statutory
      elements of each, while the factual accounts in both the complaint
      and the affidavit of probable cause describe Appellant’s
      “approach” of the complainant and robbery by gunpoint in the
      next moment as a seamless event occurring in the course of a
      theft.

Id. at 1032.

      Conversely, in Commonwealth v. Melvin, 548 A.2d 275 (Pa. Super.

1988), we held that the appellant’s terroristic threats and robbery charges did

not merge for sentencing purposes. In Melvin, we stated:

      [I]f a defendant commits several [discrete] criminal acts, he may
      be punished separately for them regardless of their close
      relationship in a single criminal episode as long as each act is a
      separate injury in itself. Here, the terroristic threat at issue was
      made by Melvin, in an attempt to aid his escape, after the robbery
      was completed. Although the terroristic threat and the robbery
      occurred during the same episode, each act was a separate and
      distinct injury to the Commonwealth.

Id. at 280-81 (emphasis in original; internal citation omitted).

      Here, the Commonwealth’s information charged Fariss with robbery at

counts 2, 3, and 10. The sentencing court, at count 2, sentenced Farris to

four to ten years’ incarceration, with no further penalty imposed at counts 3

and 10. For Fariss’ terroristic threats conviction, the court sentenced him to

one to five years’ incarceration, to run consecutively to counts 2 and 4 and


                                     - 10 -
J-A13020-20



concurrently with count 13.4 Specifically, Fariss was sentenced on count 2 for

his conviction for the following robbery offense:

       § 3701. Robbery.

       (a) Offense defined.

       (1) A person is guilty of robbery if, in the course of committing a
       theft, he:

                                           ...

          (ii) threatens another with or intentionally puts him in fear
          of immediate serious bodily injury[.]

18 Pa.C.S.A. § 3701(a)(1)(ii). Fariss was also charged with and pled guilty

but mentally ill to one count of terroristic threats, defined in the Crimes Code

as follows:

       § 2706. Terroristic Threats.

       (a) Offense defined. — A person commits the crime of
       terroristic threats if the person communicates, either directly or
       indirectly, a threat to:

          (1) commit any crime of violence with intent to terrorize
          another[.]

18 Pa.C.S.A. § 2706(a)(1).

       Here, the factual account in the Commonwealth’s affidavit of probable

cause, contained within the Chester County Juvenile Court allegation, states:

       On Wednesday, February 22, 2017, Khemmathat [Fariss]
       assaulted and robbed a [seventy-two-year-old] female victim at
       the victim’s home, located [] in East Brandywine Township,
____________________________________________


4 Fariss would still be subject to twenty to fifty years’ incarceration without
any sentence on terroristic threats because Fariss’ terroristic threats sentence
runs concurrently with count 13, which has a longer minimum sentence and
an equivalent maximum sentence.

                                          - 11 -
J-A13020-20


     Chester County, PA. . . . Among other evidence, the police
     located video of [Fariss] using the victim’s credit card and the
     victim’s car after the assault, and found the victim’s phone with
     his other belongings after he returned to Devereux.

                                    ...

     On Sunday, [February 26, 2017], [East Brandywine Township
     Police Department] was dispatched for a home invasion robbery
     [in] East Brandywine Township, Chester County. This address is
     the residence of the [seventy-two-year-old] female victim who
     resides alone.

                                    ...

     The victim was found bound in a small unlit storage area on the
     ground floor next to the entry door. . . . The victim’s head was
     covered by a reusable shopping bag attached with duct tape
     around her neck; her arms secured behind her back with zip ties,
     duct tape and a heavy cloth; and her knees and ankles bound with
     duct tape. The victim was still alive.

                                    ...

     The victim was observed to exhibit heavy bruising under her eyes
     and a significant amount of dried blood on her nose and mouth
     area, even after cleaning by medical personnel. Also observed
     was bruising, discoloration, blistering and avulsion on her wrists.
     The victim’s right wrist had a distinct patterned ligature mark.
     Medical personnel reported the victim was suffering from severe
     dehydration, malnutrition and trauma consistent with being bound
     and remaining in one position for several days.

     The victim related that on Wednesday[, February 22, 2017] she
     left her home from approximately [9 to 11 a.m.] On returning
     home she discovered someone had entered her residence, which
     she never locks, and had removed credit cards from within. She
     then left for work. She again returned home at approximately
     [7:30 p.m.] and, upon entering, was grabbed by someone waiting
     inside the house. The victim stated the bruising resulted possibly
     from being struck, but also from being violently throw[n] around
     in the confined space of the doorway. The actor began to strangle
     her with his right arm across her windpipe[,] at which point she
     was choked until she lost consciousness. She stated she did
     partially regain consciousness and recalled the subject restraining



                                   - 12 -
J-A13020-20


      her. The victim remained in the closet for five [] days until
      discovered by her daughter-in-law.

      The victim described her attacker as a male, dressed in all black
      including gloves and a ski mask. . . . He only spoke once, telling
      her, “You’ll be with Jesus soon.”

                                        ...

      Also on [February 28, 2017] affiant Martin learned that the
      victim’s Target Red card [] was used on [February 22, 2017,] at
      the 7-11 store located [] in Baltimore[,] Maryland[,] for a
      purchase totaling $12.90. Video surveillance shows [Fariss]
      entering the store[.] Video surveillance on the exterior of the
      business shows the suspect emerge from the victim’s stolen Fiat
      500.

Affidavit of Probable Cause, 8/2/17, at 2-4 (emphasis added).

       Here, as the factual account in the Commonwealth’s affidavit of

probable cause reveals, Fariss’ terroristic threats and robbery convictions

amounted to “[discrete] criminal acts.” See Melvin, supra. When Fariss told

C.K. that, “You’ll be with Jesus soon,” prior to forcing and locking her in a

small closet, he completed the crime of terroristic threats. See 18 Pa.C.S.A.

§ 2706(a)(1). Fariss independently completed the elements of his count 2

robbery conviction when he intentionally put C.K. in fear of immediate serious

bodily injury by strangling her, by violently throwing her within the confined

space of the doorway, and by securing a reusable bag around her neck with

duct tape. These violent acts, performed by Fariss in the course of committing

the thefts of C.K.’s iPhone and Target credit card, are sufficient to sustain

Fariss’ robbery conviction. See 18 Pa.C.S.A. § 3701(a)(1)(ii). Consequently,

because Fariss committed “multiple criminal acts beyond that which is




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J-A13020-20



necessary to establish the bare elements of the additional crime” he is guilty

of multiple crimes, and his merger claim fails. See Martinez, supra.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/25/20




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