J-S23008-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

DUSTIN D. CROMPTON,

                            Appellant               No. 1288 EDA 2015


          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.:                             FILED APRIL 21, 2017

        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.1      We affirm Appellant’s convictions, vacate the sentence for

conspiracy to commit simple assault and remand for resentencing, and

affirm Appellant’s remaining sentences.

        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

____________________________________________


1
    18 Pa.C.S.A. §§ 2702, 2701, 903, 2705, and 907, respectively.
J-S23008-17



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.2 The trial court imposed no further

____________________________________________


2
   Upon review of the certified record, the sentencing order states that the
conspiracy to commit simple assault was graded as a second-degree
(Footnote Continued Next Page)


                                           -2-
J-S23008-17



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.3

      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?

         II.    Is [Appellant] entitled to a new trial on all charges as
                the greater weight of the evidence does not support
                the verdict?

Appellant’s Brief at 3.

      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

                       _______________________
(Footnote Continued)

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.
3
   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.




                                            -3-
J-S23008-17



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

                                    -4-
J-S23008-17



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[4]

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.

       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
____________________________________________


4
    Appellant was actually convicted of conspiracy to commit simple assault.



                                           -5-
J-S23008-17


        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.

        An appellate court may not reverse a verdict unless it is so
        contrary to the evidence as to shock one's sense of justice.

Id. at 223 (citations and quotations omitted).

      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

                                      -6-
J-S23008-17



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)

                                       -7-
J-S23008-17



(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.




                                      -8-
J-S23008-17



     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.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/21/2017




                                     -9-
                                                                                    Circulated 03/30/2017 11:30 AM




                            IN THE COURT OF COMMON PLEAS
                       FIRST JUDICIAL DlSTRJCT OF PENNSYLVANlA
                           TRIAL DIVJ~ION-CRIMINA.L SECTION


       COMMONWEALTH OF PENNSYLVANIA                                       CP..Sl-CR-0006722-2013

                                      vs.                                 1288 EDA 2015

                       DUSTIN CROMPTON

                                                OPINION
                                                                                      FILED
                                                                                        AUG O 3 2016
COVINGTON,       J~
                                                                                   Crimina1Appe.a1~ Unit .
                                                                                 First Judicial DistnctofPA
P roc.edural. Hislory

       On September 18, 20 l4, the Defendant was found guilty, following a waiver trial, of

Aggravated Assault ( 18 § 2702 §§ A), Conspiracy to commit Simple Assault ( 18 § 903 §.§ C),

Simple Assault ( 1.8 § 2701 §§ A\ Possession of an Instrument of Crime (18 § .907 §§ A), and

Recklessly Endangering Another Person ( 18 §· 2705 §§ A). A presentence investigation was

prepared.onNovember           14,.2014. On December 4,_2014, following a hearing, the Defendant.was

sentenced to three (3) to six (6) years of incarceration followed on the Aggravated Assault and

Conspiracy charge, and        no   furtherpenalty on the remaining charges.

       Defendant      filed   a Post Sentence .Motion for Reconsideration     on December     12, 2014.

Defendant's Motion for Reconsideration            was denied by operation ofIaw on April 10, 201.5.

Defendant filed a timely Notice of Appeal on May, 5, 2015. Defendant filed a Statement of Errors

Complained of on.Appeal on February J 6, 2016.
·Factual History
        On September 26, 2012, from around midnight until 2:30 a.rn., Mr. Ventura Vasquez was

in his house located at 1916 East Cambria Street; Philadelphia. N.T. 9/18/2014, pp. 15-.16. Mr.

Vasquez
  .     was staying
             .  .                       . kids, a renter
                    at the house With his.        .      named Kristin Kubachhis fiancee Jessica

Lovera, arid the owner ofthe house Mr: Sneed. Id. at 16-17. Mr. Vasquez arrived at his home,

immediately noticed the smell of gasoline, and beganto argue with the landlord, Mr. Sneed, about

the odor. Id at )6;..17. Mr.Bneed pushed Mr. Vasquez and Mr. Vasquez pushed him back. id: at

29: WhileMr, Vasquez argued with Mr. Sneed, Kristin Kubachjoined the argument and began

pushing Mr. Vasquez, telling-him to stop fighting with Mr. Sneed. id. at 18, 31. Ms. Kubach.then

left the property: id. at 19. Ms. Jessica.Lovera        came down   to the livingroom after Ms, Kubach

left; because she was awakened by the fighting. Id. at 31.

       Ms.. Lovera and. Mr. Vasquez stepped outside. to the balcony. N. T .. .9/ I 8/2014, p. 31. Ms;

Kubach returned ten minutes later with her brother, the Defendant, and Defendant's girlfriend,

Helena Morales, id at 19-20. 'Defendant charged through the front door and said something. about

hitting women.      id, at 32. Mr. Vasquez testified the police were called, but Defendant; Ms.

Morales, and Ms. Kubach left uiitil the police were gone.             Id. at J2. Mr. Vasquez testified

Defendant,   Ms. Morales,     and Ms. Kubsch returned. Id. at 32. Mr. Vasquez said he argued with

and cursed at Defendant, then he attempted to .move towards Defendant but tripped and landed on

the; couch next   to. him . ld. at 20.   He further testified Defendant punched him, and he punched

Defendant back once,     id   at 33. Mr. Vasquez testified that once he was on the couch Defendant,

Ms. Morales, and Ms. Kubach started         to punch   and kick him. id. at 21. Mr: Vasquez testified he

                       . . couch
was unable to get off the      . and was
                                      .  repeatedly punched in the face. Id.       He said Ms. Morales
struck him approximately twice. Id at 34. After Ms. Morales hit         Mr. Vasquez,   she held him back

for Defendant to continue punching him. Id at 46. Ms.' Lovera -then pulled Ms. Morales offMr.

                                                       2
        Vasquez. 14 at 34. After Ms .. Morales was removedfromMr, Vasquez, Defendant got on him

        and hit him in the face; Id at 34. Mr. Vasquez then felt a hard object hit his head, but couldn't

        see what the object was. Id. at 22, Mr; Vasquez .heard Ms. Kubach and Ms. Morales telling

        Defendantto keep hitting.him.       Id at 39. At the preliminary hearing, Defendanttestified    he didn't

        remember the woman saying anything (o Defendant during the altercation. Id at 42. Mr. Vasquez

        became dazed by the strike of the hard object, but saw Defendant, Ms. Kubach, .and Ms. Morales

    I   leave the property together.     Jd at   22. Mr. Vasquez testified he didn't remember anything then

        until he arrived at the hospital.    id. at 2J. He furfher testified he had a cheekbone fracture and

        needed.stitches inhis head as a result of this altercation.   Id. at 21..Mr. Vasquez esxpressedhe    was

        in a Jot of pain and needed a surgical procedure to fix his fractured cheekbone.

                Mr. Vasquez drank two beers the night.of the incident..but testified he was hot drunk. N.T.

        9118/2014,   p. 27.   Mr. Vasquez also was prescribed Seroquil.btrt had not.taken his dose that day,

        id

                 Ms. Jessica Lovera testified that on the night of the incident, she was awoken by the smell

        of   gasoline and observed an argument between her fiance, Mr. Vasquez, Mr. Sneed, and Ms.

        Kubach. Id at 4.8. Ms. Lovera was on the porch with Ms. Vasquez when they saw Ms. Kubaeh

        approach
           .     the house
                        .  in a car
                                 .  with Defendant and Ms ..Morales .. Id. at 50. Ms. Lovera
                                                                                        .    testified she

        entered the house to avoid the group of people. Id, at ~0. She further testified Defendant, Ms.

        Kubach, and Ms, Morales followed them inside the house. Id. Ms. Lovera, testified sheobserved

        Defendant charge.at Mr. Vasquez, and then pin Mr; Vasquez on the couch. Id at 50. SheJurther

        testified that Defendant.Ms .. Morales, and    Ms. Kubach all punched    Mr. Vasquez. Jd. at5L Ms.

        Lovera pulled Ms. Morales off Mr. Vasquez, and then observed Ms. Kubach grab a wooden bat

        arid use itto hit Mr. Vasquez.on the left side.of his face. lei, at 5 L Ms. Lovera. stopped   Ms, Kubach


                                                            3
1
I
I
from striking Mr. Vasquez with the bat again. Id at 52. Ms. Lovera prepared to fight Ms. Kubsch

in thecomer.when Defendant got off Mr. Vasquezand told.herhe wouldhit.womentoo. Id at

52. Defendant, Ms. Kubach, and Ms. Morales grabbed the bat, left the property, arid drove away

in Defendant's car. Id. at 53. Ms. Lovera called the police and checked on Mr, Vasquez's rnjuries.

Id at 53. At a preliminary hearing, Ms. Lovera testified.the bat belonged to Mt Vasquez. id. at

60. Ms. Lovera testified that she didn't observe any punches thrown before Mr. Vasquez fell .onto

the couch.just a tussle, but she observed Defendant punch Mr. Vasquez when he was on the couch.

Jd tit62-63.

         Counsel stipulated to medical records.indicating: Mr. Vasquez had a. one inch gash above

his left forehead, bleeding was stopped by a bandage, and patient was positive for headache,

nausea, vomiting, and loss ofconsciousness.         Id at 78. Mr. Vasquez was treated for a laceration

on. the left side of his forehead,. a local anesthesia was administered, and. fourteen
                                                                                   .   sutures were

applied to the wound to close it up. Id.



'Standard of Review
         The standard of reviewapplied to weight of the evidence         is whether the verdict   is.so

contrary t6 the evidence as to shock one's sense of justice. Commonwealth v: Brown, 23 A.3d

544, 557-58 (Pa. Super: 2011). "A motion for a new trial alleging that the verdict was against the

weight of the evidence is addressed to the discretion-of the trial court. Appellate review,

therefore.js areviewofthe exercise of discretion, pot the underlying question whether the

verdict is against the weightof the evidence." Commonwealth           v: Keaton, 729   A.2d 529, 540 (Pa.

1999} (citing Commonwealth v. Brown, 648 A.2.d 1177, J I 89 (Pa. 1994)). The finder of fact is

free   to believe   all, part, or rione of the evidence and to determine the credibility of the witnesses.

Id (citing 'Commonwealth.v. Hawkins, 701 A.2.d 492, 501 (Pa, 1997}). 'In determining whether

                                                       4
this standard has been met, appellatereview.is limited to whether the trial judge's discretion was

properly exercised, and relief will onl y be granted where the facts and inferences of record

disclose    a palpable   abuse of discretion. Id. at 54 l (citing Commonwealth y. 'Counterman, 719

A.2d 284,. 3'0.4 (Pa. 1998}).

        The standard of review applied to reviewing 'the sufficiency of the evidence is "whether

viewing al I 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." Commonwealth v, Gray, 867 A.2d 560, 567 (Pa. Super2004).}n applying this test; the

appellate court may not weigh the evidence and substitute its judgment for the fact-finder. Id. In

addition,     the "Commonwealth            need    not. preclude · every   possibility of innocence: The

Commonwealth may sustain its burden of proving every element of the crime beyond a reasonable

doubt by means of wholly circumstantial evidence:" Commonwealth v. Kerry, 906 A.2d 1237,

1240 (Pa. Super, 2006) .

        "When reviewing sentencingmatters,             [an appellate courtj.mustaccord   the sentencing court

great weight as it is.in the best position to view defendant's character, displays or remorse, defiance

or indifferences, and the overall nature of the crime." Commonwealth v. Cappellini, 690 A.2d

1220, 1225 (Pa. Super. 1997) (quoting Commonwealth v: Viera, 659 A..2d.J024, 1030.(Pa.Super;

199~}. The sentencing functi on is vested in the sound discretion of thetrial court, whosejudgment

will not. be disturbed by an appellate.counin the absence of an abuse.of discretion. Commonwealth

v. Walls, 926 A.2d.957, 962          (Pa. 2007).



Disc1ission

       Pursuant to the . l 92S (b) Statement of Errors Complained of on Appeal, the Defendant

asserts the following arguments for appeal: (1) the Commonwealth's              evidence was insufficient to

                                                         5
    prove aggravated assault or conspiracy to commit simpleassault, as therewas insufficient evidence

    to prove Defendant was a principal, conspirator, or ah accomplice; (Z) the verdict Wc\S against the

    weight of the evidence; and (3) the Court abused its discretion in imposing an unduly harsh·

    sentence.

       I.       There Was Sufficient Evidence.To Sustain Defendant's.Aggravated Assault and
                Conspiracy Convictions                                ·

                A: There Was SuOJcient Evidence o(an Aggravated Assault qnd Simple Assault

            To obtain a convictionfor Aggravated Assault, the Commonwealth must prove that the

    defendant attemptedto cause serious bodilyinjury to another, or caused such injury intentionally,

    knowingly, or recklessly under circumstances manifesting extreme indifference to the value of

    human life.· Commonwealth v, Caterino, 451 Pa. Super.42,45-A6,        678 A.2d 389 (1996). Serious

    bodily injury is defined as any "bodily injury which creates a.substantial risk of death or which

    causes serious permanent disfigurement; or protracted loss or impairmentof the function of any

    bodily member or organ." 18 Pa.C.S. 2301. Withregard to intent, "A person acts intentionally

    with respect to a material element.of the offense when: (i) if the.element involves the nature. of his

    conduct or a result thereof, it is his conscious object to.engage in conduct of thatnature or to cause

    such a result." Commonwealth v. Sanders; 426 Pa. Super. 362, .627 A.2d 183, 1&6 (1993).           The.

    intent to cause serious bodily harm may be shown by circumstances surrounding the .incident.
;
r
!   Commonwealth v. Alexander, 477 Pa .. 190, 194, 383 A2d887, 889 (1978).

            1n the instant case, it is clear Mr. Vasquez was· the victim of an Aggravated Assault.

    Defendant.punched    Mr. Vasquez in the face multiple times. while Mr. Vasquez was pinned down

    on a couch. Mr. Vasquez was also punched repeatedly by Ms. Morales and Ms. Kubach. Beyond.

    these several punches to theface, Ms. Kubach struck Mr: Vasquez in the side ofthe head with a.

    wooden bat.. 'It is clear that Defendant's actions were executed with the intent to cause    a serious
bodily injury. Defendant punched Mr, Vasquez in the face multiple times, while holding him

down, rendering him unable to protect himself.               Mr. Vasquez became disoriented, lost

consciousness, andrequired surgery for the.gash on his forehead. There is sufficient circumstantial

evidence that Defendant acted with the intent to cause protracted impairment or disfigurement to

the several sensitive bodily members on Mr, Vasquez face; including his eyes and.nose,

        Be yo rid. this, as Defendant acted in a conspiracy With Ms. Kubach, he is criminally liable

for alJ of Ms. Kubach's actions in furtherance of theconspiracy, ', .as discussed hifi.·a. Ms. Kubach's

actions clearly rose to aggravated assault when    she struck Mr.Vasquez in the side of his head, near
his ears and eyes, with a wooden bat.

            B. Defendan.tParticipated in.a Conspiracy with Ms.· Kubach

        To sustain a conviction for criminal conspiracy, the Commonwealth must establish thatthe

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) .and overt     act was done in furtherance of the
conspiracy."
    .        Commonwealth v. Hennigan,
                                  .    753 A.2d 245, 2.53 (Pa.
                                                            . S.uper.2000).. "Theessence 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 circwnstances 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.



                                                    7
Even if the conspirator did not act as a principal in committing the underlying crime, he. is still

criminally liable for the actions. of bis co-conspirators       in furtherance of the conspiracy."
Commonwealthv. Knox, 50 A.3d749, 755 (Pa. Super: 2012).

         The cireumstances surrounding the Assault of Mt: Vasquez sufficiently prove Defendant

entered into a conspiracy with Ms. Kubach and Ms. Morales. The scenario began with Ms. Kubach

arguing with .Mr. Vasquez by herself in the property.       Ms. Kubach then left the. property and

returned with her brother, Defendant, and Ms. Morales, Defendant' s girlfriend. Defendant and.the

.two women all   drove to   the property together, entered the house together, fought together, and

subsequently left together. While fighting, Ms. Morales. also held Mr: Vasquez down, and both

her .and Ms. Kubach         encouraged   Defendant to   continue punching      Mr. Vasquez.   These

circumstances clearly indicate that Ms. Kubach returned to the house with the criminal intent to

assault Mr. Vasquez. Itis also dear that Defendant was aware.and agreed to commit this unlawful

act of assaulting Mr. Vasquez    before evenentering the property. Defendant, Ms. Kubach, and Ms.

Morales aIJ took steps in furtherance ofthe conspiracy when theypunched Mr .. Vasquez, held him

down, and struck him with a bat. The circumstances of the assaultmake it clear this was not a

scenario where two people were engaged in an altercation and the others merely joined inthe

affray, the parties.clearly. intended to act together in furtherance of the assault.

   11.      The VerdidWasNot Against The WeightOfThe. Evidence.

         Ah allegation that the verdict is against the weight of the evidence is addressed to the

discretion o:f the; trial court. Commonwealth v. Brown, 648 A.2d 1177 (Pa, 1994). A new trial

should not he granted because of a mere conflict in the testimony or because the.judge on. the same

facts would have arrived at a different conclusion, Thompson v. City of Philadelphia, 493 A.2d

669, 673 .(Pa. 1985)..
    :




                                                   8
                In the instant case, the weight of rhe evidence was not contrary to the Courts finding of

     .guilt. The Court was given ample opportunity to review the evidence from both Defendant.and

     the Commonwealth before making a decision, The Court .gave great. weight to the testimony of

     Mt: Vasquez and Ms. Lovera and found their testimony to be credible.              Any discrepancies in

     testimony are rriinor and are. easily explained by the speed and the rapid. acceleration of the

     altercation. Mr. Vasquez admitted to drinking; the night of the incident, but insisted he was not

     intoxicated. The inconsistent testimony as to the wooden bat's ownership is not only minor but

     also not relevant    to the   trial. Though Mr:   Vasquez testified   the bat belonged to Mr. Sneed, he

     didn'ttestify thatthe Defendant or his co-conspirators broughtit with them. Ms. Lovera testified

I'   she'. didn't recall who the bat belonged to, and later testified it belonged to her husband. These

     statements were not made in the self-interest of the witnesses, but can merely be. attributed to issues

     of recollection and memory,



         III.      Defendant's Sentence for AggravatedAssault was Appropriate.

                ''Whil~ it is true that. [our superior] court and. our supreme court have. the power and

     responsibility to vacate a sentence determined to be so manifestly excessive. as to. constitute too

     severe a punishment, it is insufficient to simply assert ah unduly harsh sentence; the record.must

     .show it.,,. Commonwealth V. De Luca, 418 A:2d 669, 67 l (Pa. Super. 1980) ( citing Commonwealth.

     v. Martin, 351 A.2d 650 (P~. 1976)). ln order to. constitute an abuse of diseretion, a sentence must

     either exceed the statutory limits or be · so manifestly excessive as to constitute an · abuse of

     discretion. Commonwealth. v. Pickering, 53JA.2d 735, 738 (Pa, Super. 1987}.

                The Court fashioned a sentence which took into.account theneed to protect the public from

     the defendant, the.rehabilitativeneeds of the defendant, arid the .gravity of the particular offenses·



                                                           9
as it relates to the impact on. the citizens of Philadelphia.         Commonwealth v. Cunningham, 805

A.2d 566,'575 (Pa. Super. 2002) (quoting Commonwealth v.. Burkholder, 719 A.2d 346,-3,50 (Pa.

Super. 1998)). 1'Where pre-sentence reports exist, we shall continue to presume that the sentencing

judge was aware of relevant information regarding the defendant's character and weighed those

considerations along with mitigating statutory factors. A pre-sentence report constitutesthe record

and speaks
     .
           for itself.. . Having . been' fully informed. by the pre-sentence report,
                                                                                .   .
                                                                                      the sentencing.·

court's discretion should .. not be disturbed. This is particularly           true, we. repeat, in those

circumstances. where it can be demonstrated that the judge had any degree of awareness of the

sentencingconsiderations,    and there we will presume also thatthe-weighing         process took place in

a meaningful fashion, It would be foolish, indeed, to take the position that if a court is in possession

ofthefacts, it wilJ fail to apply them tothe case at hand." Com:monwecilthv, Devers, 546 A2d 12~

.18 O>a. 1988).
                                                         .        .
       Defendant was sentenced to forty rwo ~42) to eighty four two (84) months incarcerarion              on
both the first-degree felony Aggravated       Assault charge and the. second-degree misdemeanor

Conspiracy to commit Simple Assault charge, concurrent to each other, with no further penalty on

all other convictions,   Defendant had a prior record score of zero. The offense gravity score for

the Aggravated Assault charge was eleven (I I) with          a guideline range   of.thirty six (36)   to fifty
four (54)months plus or minus twelve ( 12) months, with a maximum sentence of twenty (20)

years. The Court clearly imposed ·~ sentence within the guideline, sentencing Defendant to a

minimum of forty two (42) months incarceration, squarely within the guideline range of thirty six

a6) to fifty four (54) months,      As this sentence falls within the guidelines .it is clearly not

manifestly excessive.       The. Court took into consideration            the Defendant's· 'Pre-Sentence




                                                   10
Investigation    Report, remorse,    arid family support, but determined a standard period 01

incarceration would best serve the community.



    IV.       Defendant's Sentence for Simple. Assault was Illegal and Should be Remanded for
              Resentencing
    Defendant was sentenced to three years .and six months to seven years' incarceration for the

second-degree misdemeanor Conspiracy to commit Simple Assault. The statutory maximum

incarceration sentence fora second-degree misdemeanor is two years. Although this sentence runs

concurrent to a legal sentence on AggravatedAssault.it exceeds the statutory maximum and must

be remanded for resentencing ..




Conclusion
          For the foregoing reasons, it.is.respectfully requested that the Trial Court's determination

of guiltbe affirmed and sentence .be.rernanded to correct the 'illegal sentence on the simple assault

conviction.


                                                                          BYTHIS~O
                                                                      ~


                                                                          Roxanne  £1
                                                                                    . ......._._,   ..


                                                                          August3, 2016




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