J-A30012-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

SAMNEANG SAMNEANG

                            Appellant                No. 1824 EDA 2013


             Appeal from the Judgment of Sentence June 13, 2013
             In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0001092-2012


BEFORE: LAZARUS, J., MUNDY, J., and PLATT, J.*

MEMORANDUM BY LAZARUS, J.:                        FILED JANUARY 30, 2015

        Samneang Samneang1 appeals from the judgment of sentence entered

in the Court of Common Pleas of Philadelphia County. After our review, we

affirm in part, and vacate and remand in part, and we rely upon the opinion

authored by the Honorable Charles J. Cunningham, III.

        On November 1, 2011, Samneang and his co-defendant, Kanika Oum,2

shot a fifteen-year old boy in the face near the intersection of 75th Street

and Buist Avenue in Southwest Philadelphia. Following trial, a jury convicted


____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
 Appellant’s name is Samneang Sin, however he was charged and tried as
Samneang Samneang. See N.T. Trial, 2/27/13, at 49-50.
2
    Co-defendant Oum’s related appeal is docketed at 1939 EDA 2013.
J-A30012-14



Samneang of attempted murder,3 criminal conspiracy,4 aggravated assault,5

violation of the Uniform Firearms Act (VUFA),6 and possession of an

instrument of crime (PIC).7

        The court sentenced Samneang to a term of imprisonment of 15-30

years for attempted murder, a consecutive term of 5-10 years on the

conspiracy conviction, and a consecutive term of 2-5 years on the VUFA

conviction, for an aggregate term of 22-45 years’ imprisonment. The court

imposed no further penalty on the PIC conviction. The court also determined

the aggravated assault conviction merged for sentencing purposes.

        Samneang filed a timely appeal to this Court. On June 21, 2013, the

trial court ordered Samneang to file a Pa.R.A.P. 1925(b) Statement of Errors

Complained of on Appeal. In his Rule 1925(b) statement, Samneang raised

nine issues, five of which he has carried forward for our review:

              1. The trial court through words, deeds and rulings
                 compromised appellant’s ability to win the trial by
                 nullifying the effectiveness of essential points being
                 made by the defense such that he did not receive a
                 fair trial;

____________________________________________


3
    18 Pa.C.S. §§ 901(a), 2502(a).
4
    18 Pa.C.S. §§ 903(a), 2502(a).
5
    18 Pa.C.S. § 2702(a).
6
    18 Pa.C.S. § 6106.
7
    18 Pa.C.S. § 907(a).



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            2. The trial court erred in not allowing the defense to
               ask about the other two identification witnesses who
               were unable to identify appellant and by preventing
               defense counsel from questioning and attacking the
               identification procedure;

            3. The trial court erred in allowing the hearsay
               testimony regarding what others said that Seagull
               Mok said;

            4. It was constitutional error for the Commonwealth to
               assert that the defense should call witnesses to rebut
               the Commonwealth case;

            5. The trial court erred in sentencing appellant for two
               inchoate crimes, i.e., attempted murder and
               conspiracy to commit attempted murder.

Appellant’s Brief, at 14.

      Upon review of the parties’ briefs, the relevant law, and the record as

a whole, we find that Judge Cunningham has correctly disposed of issues 1-4

in his opinion.   See Opinion, 2/7/14, at 8-18. Therefore, we affirm the

convictions based on Judge Cunningham’s opinion.

      With respect to Samneang’s fifth issue, the trial court acknowledged in

its Rule 1925(a) opinion that Samneang’s sentence was illegal.      The court

sentenced Samneang to 15-30 years for attempted murder, and a

consecutive term of 5-10 years on the conspiracy to commit murder

conviction. As the trial court recognized, Samneang could not be sentenced

for two inchoate crimes for conduct designed to culminate in the same

offense, that is, murder. Section 906 of the Crimes Code precludes

conviction of more than one of the inchoate crimes of criminal attempt,

criminal solicitation or criminal conspiracy “for conduct designed to commit


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J-A30012-14



or to culminate in the commission of the same crime.” 18 Pa.C.S. § 906.

See Commonwealth v. Kelly, 78 A.3d 1136 (Pa. Super. 2013) (sentence

for conspiracy to commit attempted murder and attempted murder should

have merged); see also Commonwealth v. Martinez, 438 A.2d 984 (Pa.

Super. 1981) (where criminal conspiracy to commit burglary and subsequent

attempted burglary constituted “conduct designed to culminate in the

commission of the same crime,” that is, burglary, defendant should not have

been sentenced for both attempt and conspiracy, but should have only been

sentenced for one or the other); Cf. Commonwealth v. Jacobs, 39 A.3d

977 (Pa. 2012) (where defendant’s convictions for two inchoate crimes had

separate criminal purposes they did not merge).

      We   agree      with   Judge   Cunningham’s   post-sentence      assessment.

Therefore, we vacate the judgment of sentence and remand for resentencing

in accordance with 18 Pa.C.S. § 906. See Commonwealth v. Watts, 465

A.2d 1267 (Pa. Super. 1983). Counsel is directed to attach a copy of the trial

court’s opinion in the event of further proceedings in this matter.

      Affirmed   in    part;   vacated   and   remanded   in   part.    Jurisdiction

relinquished.




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J-A30012-14


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/30/2015




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