J-A09015-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    MUSTAFA CRENSHAW,                          :
                                               :
                       Appellant               :   No. 3590 EDA 2017


             Appeal from the Judgment of Sentence, June 9, 2017,
             in the Court of Common Pleas of Philadelphia County,
             Criminal Division at No(s): CP-51-CR-0006318-2015.


BEFORE:      KUNSELMAN, J., MURRAY, J., and PELLEGRINI*, J.

MEMORANDUM BY KUNSELMAN, J.:                              FILED JUNE 07, 2019

        Mustafa Crenshaw appeals from the judgment of sentence imposed after

a jury convicted him of aggravated assault, criminal conspiracy, possession of

an instrument of a crime,1 as well as various firearm violations. After careful

review, we affirm.

        Crenshaw and his co-defendant, Mohammed Kamana, were arrested

and charged in connection with the April 13, 2015 shooting of Michael

Pritchette.2 The trial court summarized Pritchette’s trial testimony as follows:

            [At trial,] Pritchette testified that he had moved out of
          Pennsylvania but returned because the Commonwealth
____________________________________________


1   18 Pa.C.S.A. §§ 2702, 903, and 907.

2 Kamana’s surname is actually “Kamara.” See No. 3446 EDA 2017. The jury
found him guilty of attempted murder and other crimes. Id. For consistency,
we will refer to Crenshaw’s co-defendant as “Kamana.”


____________________________________
* Retired Senior Judge assigned to the Superior Court.
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         notified him that there was a warrant out for him. He stated
         that he had not wanted to participate in the trial because he
         was afraid for himself and his family.           He identified
         [Crenshaw] and Kamana, known to him as “Staf” and
         “Ham,” as men he had known for more than five years from
         around the neighborhood. Pritchette testified that two days
         before the shooting, he got into an argument with
         [Crenshaw] and Kamana at his friend “D Rock’s” house on
         Elmwood Avenue. He stated that on April 13, [2015], he
         walked out of a store with D Rock and headed towards a
         friend’s house so he could get a ride to work when a white
         Buick pulled up next to him. [Crenshaw] and Kamana exited
         the vehicle and began fighting with Pritchette. Pritchette
         testified that he saw [Crenshaw] pass a gun to Kamana.
         Pritchette stated that he then saw Kamana aim the gun at
         him so he turned around to run away, and Kamana shot him
         once in the back. Pritchette testified that a friend of D
         Rock’s drove him to the hospital in a red Mitsubishi.
         Pritchette stated that once he arrived at the hospital, an
         ambulance transported him to a different hospital.
         Pritchette testified that police detectives spoke to him in the
         hospital and that he refused to tell them who shot him
         because he was afraid. He stated that he did tell detectives
         at the hospital that a white Buick pulled up before he was
         shot. Pritchette testified that later, after warrants were
         issued for his arrest, the police came to his house and took
         him in handcuffs to the police station. At that time, he gave
         another statement and finally told the police the identities
         of the men who shot him. He testified that he also identified
         [Crenshaw] and Kamana in a photo array. He stated that
         he had refused to disclose the shooters’ identities prior to
         the warrants because he was afraid for his safety. He
         further testified that he had moved out of Pennsylvania
         because he was concerned for his safety due to his
         involvement in this matter.

Trial Court Opinion, 6/26/18, at 4-5.       The Commonwealth corroborated

Pritchette’s version of the incident by the testimony from the investigating

officers and video surveillance.




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     That matter went to trial, where the jury found Crenshaw guilty of the

aforementioned charges on March 29, 2017. On June 9, 2017, the trial court

sentenced Crenshaw to an aggregate sentence of 8 to 16 years of

incarceration, plus 10 years of probation.       Crenshaw filed post-sentence

motions, which were denied. This timely appeal follows. Both the trial court

and Crenshaw have complied with Pa.R.A.P. 1925.

     Crenshaw raises the following issues for our substantive review:

        1. Was the evidence insufficient to sustain the guilty verdict
        for aggravated assault, where there was insufficient
        evidence proving Crenshaw had the criminal specific intent
        to attempt to cause or even recklessly caused Pritchette
        serious bodily injury, and Crenshaw was not the one who
        shot Pritchette?

        2. Was the evidence insufficient to sustain the guilty verdict
        for criminal conspiracy where there was insufficient
        evidence that Crenshaw conspired with the shooter, and at
        most, Crenshaw was merely present at the scene when
        Pritchette was shot?

        3. Were the verdicts for aggravated assault, criminal
        conspiracy, PIC and all the VUFA charges against the weight
        of the evidence as the only identifying evidence tying
        Crenshaw as one of the offenders came from Pritchette, who
        gave constantly changing and materially contradictory
        statements and testimony, which were rendered completely
        unreliable?

See Crenshaw’s Brief at 7.

     Our standard of review for a challenge to the sufficiency of the evidence

requires us to determine whether the evidence admitted at trial, with all

reasonable    inferences   viewed   in   the   light   most   favorable   to   the

Commonwealth as verdict winner, is sufficient to establish every element of


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the convicted offense beyond a reasonable doubt. Commonwealth v.

Collins, 703 A.2d 418, 420 (Pa. 1997). Circumstantial evidence must be

considered equally with direct evidence, and the Commonwealth may sustain

its burden by relying on circumstantial evidence alone. Commonwealth v.

Davalos, 779 A.2d 1190, 1193 (Pa. Super. 2001). The Commonwealth's

established facts and circumstances need not preclude the possibility of

innocence. Commonwealth v. Dargan, 897 A.2d 496, 503 (Pa. Super.

2006). If the evidence allows a fact-finder to reasonably determine that all

necessary elements are established, then the evidence will be deemed to

support the verdict. Davalos, 779 A.2d at 1193.

     We will first address Crenshaw’s sufficiency challenge in regards to his

conspiracy conviction.

           To prove conspiracy, the trier of fact must find that: 1)
        the defendant intended to commit or aid in the commission
        of the criminal act; 2) the defendant entered into an
        agreement with another to engage in the crime; and 3) the
        defendant or one or more of the other co-conspirators
        committed an overt act in furtherance of the agreed upon
        crime. In most cases of conspiracy, it is difficult to prove
        an explicit or formal agreement; hence, the agreement is
        generally established via circumstantial evidence, such as
        by the relations, conduct, or circumstances of the parties or
        overt acts on the part of co-conspirators.

Commonwealth v. Johnson, 985 A.2d 915, 920 (Pa. 2009).

     In support of his sufficiency challenge, Crenshaw argues:

        [Crenshaw] was merely present and did not direct anyone
        to shoot the complainant. The lower court points out in its
        Opinion, that the complainant had an argument with the co-
        defendant and [Crenshaw], a few days prior to the shooting.
        [Crenshaw] concedes that this could serve as evidence of a

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         motive to engage in later violence. However, [Crenshaw]
         argues that this coupled with a mere passing of a firearm,
         does not rise to the level of an agreement to commit a
         shooting or that the passing of a firearm [constituted a]
         significant overt act.

Crenshaw’s Brief at 19-20. In addition, Crenshaw further notes that Pritchette

originally told police that he was a victim of a drive-by shooting.     Finally,

Crenshaw emphasizes that Pritchette did not mention that Crenshaw passed

a gun to Kamana in his statement to police and his grand jury testimony.

      In concluding Crenshaw conspired with Kamana to harm Pritchette, the

court focused on the particular circumstances and conduct in this case. The

trial court reasoned:

         The record supports the jury’s finding that [Crenshaw]
         entered into a conspiracy with Kamana to shoot Pritchette.
         Pritchette testified that he, [Crenshaw], and Kamana had
         argued at D Rock’s house on Elmwood Avenue a couple days
         prior to the shooting. As Pritchette walked down Elmwood
         Avenue with D Rock two days later, Kamana and
         [Crenshaw] drove up in a white Buick, exited the vehicle and
         began to fight with Pritchette.        Pritchette then saw
         [Crenshaw] pull out a gun and pass it to Kamana, who then
         shot Pritchette in the back as he turned to run away. These
         facts demonstrate that [Crenshaw] and Kamana had formed
         a plan to shoot Pritchette and worked together to effectuate
         this goal, as evidenced by the fact that [Crenshaw] and
         Kamana arrived at the scene of the shooting together in the
         white Buick and [Crenshaw] passed the gun to Kamana so
         that he could shoot Pritchette. Indeed, all four elements of
         conspiracy were proven: first, [Crenshaw] and Kamana
         were known associates as they had argued with Pritchette
         two days earlier at D Rock’s house; second and third,
         [Crenshaw] had knowledge of the crime as he was present
         during the shooting; and last, [Crenshaw] actively
         participated in the commission of the crime as he initially
         possessed the firearm and then passed it to Kamana so he


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         could shoot Pritchette. The totality of the evidence supports
         [Crenshaw’s criminal conspiracy conviction[.]

Trial Court Opinion, 6/26/18, at 13-14.

       Our review of the record supports the trial court’s conclusion. Both co-

codefendants, Crenshaw and Kamana both argued with Pritchette, jointly

approached and attacked him, and Crenshaw provided Kamana with the gun

that he shot Pritchette with.         Crenshaw’s argument regarding Pritchette’s

inconsistent statements during the investigation of this case goes to the

weight rather than the sufficiency of his testimony.                Thus, Crenshaw’s

sufficiency challenge to his conspiracy conviction fails.

       Next, we turn to Crenshaw’s second issue, which challenges the

sufficiency of his aggravated assault conviction.

       An individual is guilty of aggravated assault if he or 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).             ”For

aggravated assault purposes, an ‘attempt’ is found where the accused, with

the required specific intent, acts in a manner which constitutes a substantial

step   toward      perpetrating   a     serious   bodily   injury    upon   another.”

Commonwealth v. Fortune, 68 A.3d 980, 984 (Pa. Super. 2013) (citation

omitted). “A person acts intentionally with respect to a material aspect of an

offense when . . . it is his conscious object to engage in conduct of that nature

or to cause such a result[.]” Commonwealth v. Jackson, 955 A.2d 441,

446 (Pa. Super. 2008). The General Assembly has defined serious bodily injury

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as “[b]odily 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.” 18 Pa.C.S.A. § 2301.

      Crenshaw argues that he could not be convicted for aggravated assault

because he was not the shooter. He argues that he “did not direct the co-

defendant to shoot the complainant. [He] made no command nor made any

non-verbal command for [Kamana] to shoot [Pritchette].” Crenshaw’s Brief

at 16-17.   Crenshaw would have this Court conclude that “he was merely

present” and that “handing a firearm to another . . . does not rise to the level

of aggravated assault.” Id.

      The trial court provided the following reasons in concluding the

Commonwealth provided sufficient evidence to prove Crenshaw was guilty of

aggravated assault:

             The evidence shows that [Crenshaw] and Kamana
         planned to confront Pritchette and shoot him. Together,
         they drove up in a car, got out, and approached Pritchette
         on the street. [Crenshaw] handed the gun to Kamana just
         prior to Kamana shooting Pritchette in the back as he
         attempted to run away. As a result of his gunshot wound,
         Pritchette was hospitalized for three days. There is no
         question that a gunshot to the back constituted an attempt
         to cause or causes serious bodily injury, as any gunshot
         “creates a substantial risk of death or [can cause] serious,
         permanent disfigurement, or protracted loss or impairment
         of the function of any bodily member or organ.” Even
         though [Crenshaw] did not personally pull the trigger,
         [Crenshaw] passing the gun to Kamana was a “substantial
         step toward perpetrating a serious bodily injury upon
         another.” Thus, there was sufficient evidence adduced at
         trial to support the jury’s finding that [Crenshaw] was guilty
         of aggravated assault.

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Trial Court Opinion, 6/26/18, at 12.

      It appears that the trial court concluded that Crenshaw was liable for

aggravated assault under 18 Pa.C.S.A. 2702, itself and upon the principle of

conspiratorial liability. We find that Crenshaw’s conviction was proper under

the theory of conspiratorial liability and as a principal actor who attempted to

cause serious bodily injury. We will address each of these theories that the

conviction rests on in turn.

      Conspiratorial liability, “permits vicarious criminal liability for the

substantive offenses committed by other members of the conspiracy that are

undertaken in furtherance of the conspiracy. Commonwealth v. Chambers,

188 A.3d 400, 405 (Pa. 2018).        The trial court found that Crenshaw was

criminally liable for the acts of his co-conspirator which were undertaken in

furtherance of the crime.      Ultimately, it was the pre-existing quarrel that

Crenshaw and Kamana had with Pritchette and their subsequent joint attack

on him that led the trial court to conclude that a conspiracy had been formed

between them to effectuate a shared intent to assault.          Such evidence

established a shared criminal intent, making Crenshaw vicariously liable for

the shooting.

      As for a principal actor, the evidence of record supports the court’s

finding that Crenshaw himself attempted to cause serious bodily injury to

Pritchette.     The circumstantial evidence demonstrates that Crenshaw

possessed the required specific intent.      One could infer that Crenshaw’s

conscious objective was to shoot Pritchette because the facts demonstrate

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that (1) Crenshaw and Mustafa had an argument with Pritchette several days

prior to the shooting, (2) immediately upon approaching Pritchette, they

raised their fists and began fighting him, and (3) Crenshaw handed the gun

to Mustafa during the fight. N.T. 3/23/17, 131-40. As the trial court noted,

Crenshaw handing the gun over to Mustafa was a substantial step toward

perpetrating the shooting. We agree with the assessment and therefore find

the evidence was sufficient to convict Crenshaw of aggravated assault.

        In his third issue, Crenshaw challenges the weight of the evidence

supporting his convictions. When reviewing a challenge to the weight of the

evidence, our standard of review is as follows: This Court has summarized:

              The determination of the weight of the evidence
           exclusively is within the province of the fact-finder, who may
           believe all, part, or none of the evidence. A new trial should
           be awarded when the jury’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. In this regard, the evidence
           must be so tenuous, vague and uncertain that the verdict
           shocks the conscience of the court.

Commonwealth v. Ross, 856 A.2d 93, 99 (Pa. Super. 2009) (citations

omitted). Absent an abuse of discretion, the trial court's decision will not be

disturbed. See Commonwealth v. Griffin, 515 A.2d 865, 869 (Pa. 1986).

An abuse of discretion “is not merely an error in judgment. Rather, it involves

bias,    partiality,   prejudice,   ill-will,   manifest   unreasonableness   or   a

misapplication of the law.” Commonwealth v. West, 937 A.2d 516, 521

(Pa. Super. 2007) (citation omitted).



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      The trial court found no merit to Crenshaw’s weight claim. See Trial

Court Opinion, 6/26/18, at 14-15. Considering the testimony provided by the

Commonwealth, the trial court reasoned:

         In the case at bar, the jury properly assessed the evidence
         presented at trial and based its verdict upon that evidence.
         The jury, as fact-finder, was free to believe all, part or none
         of the evidence presented, and […] its conclusion should not
         be disturbed unless it “shock’s one’s sense of justice.” That
         is not the case here. During the trial, the jury was able to
         observe the demeanor of victim Pritchette and eyewitness
         Bivens, and found each of them to be credible. The jury
         also viewed the surveillance video from the corner beauty
         store, which depicted two males emerging from a white
         vehicle, a scuffle ensuing, a man running away, and a SEPTA
         bus driving through [the] intersection.

Id.

      Crenshaw argues the verdict was against the weight of the evidence

because “the only person tying [him] to the scene of the shooting was

[Pritchette] whose story changed in material ways.” Crenshaw’s Brief at 21.

However, Pritchette explained he changed his story because he feared

retaliation from the defendants if he testified truthfully.   It was within the

jury’s province to reconcile these inconsistencies in Pritchette’s testimony.

Because the evidence was not “tenuous, vague, and uncertain” the trial court

did not abuse its discretion in finding the verdict was not against the weight

of the evidence. Ross, 856 A.2d at 99. Thus, Crenshaw’s weight claim is

without merit.

      In sum, the evidence presented by the Commonwealth demonstrates

that Crenshaw’s convictions were supported by sufficient evidence, and we


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find the trial court did not abuse its discretion on the weight claim. We

therefore affirm Crenshaw’s judgment of sentence.

     Judgment of sentence affirmed.

     Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/7/19




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