J-A29004-14

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

IN THE INTEREST OF: Q.L.W., A MINOR, :       IN THE SUPERIOR COURT OF
                                     :            PENNSYLVANIA
                                     :
                                     :
                                     :
APPEAL OF: Q.L.W., A MINOR           :       No. 75 WDA 2014

                   Appeal from the Order August 22, 2013,
                  Court of Common Pleas, Allegheny County,
                       Criminal Division at No. 1097-10

BEFORE: DONOHUE, ALLEN and STRASSBURGER*, JJ.

MEMORANDUM BY DONOHUE, J.:                     FILED NOVEMBER 17, 2014

       Appellant, Q.L.W., appeals from the order entered on August 22, 2013

in the Court of Common Pleas of Allegheny County adjudicating her

delinquent of aggravated assault,1 criminal conspiracy to commit aggravated

assault,2 and aggravated assault of an unborn child.3 We affirm.

       The trial court summarized the relevant testimony in this case as

follows:

             M.D. (age seventeen) had been involved in a
             relationship with L.E. and was three months
             pregnant with L.E.’s child. … M.D. met L.E. in [an]
             alley near her home on December 15, 2012. They
             talked for about ten minutes and L.E. gave her a
             hug. The couple ended their meeting and M.D.
             returned home. Shortly after having arrived home,
             M.D. stated that she received another call from L.E.
             who told her that he wanted to meet her for a


1
    18 Pa.C.S.A. § 2702(a)(1).
2
    18 Pa.C.S.A. § 903(a)(1).
3
    18 Pa.C.S.A. § 2606(a).

*Retired Senior Judge assigned to the Superior Court.
J-A29004-14


          second time in order to give her a kiss. M.D. agreed
          to meet L.E. at the same place. M.D. testified that
          when she met up with L.E., he kissed her on the
          head.   She stated that he appeared a little bit
          nervous and told her that this would be the last time
          she would see him. M.D. stated that she gave him a
          funny look and that L.E. laughed and said, ‘I’m just
          playing with you.’ M.D. gave L.E. a kiss and then
          began to walk towards her home. M.D. testified that
          as she walked away she turned around twice to look
          at L.E. The second time she turned to look at L.E.,
          he was gone, but she saw [Q.L.W.] walking in the
          alley.

          M.D. stated that [Q.L.W.] began walking towards her
          and then began to skip and run towards her. When
          [Q.L.W.] finally caught up with M.D., [Q.L.W.] struck
          M.D. on the right side of her face with a closed fist.
          M.D. stumbled and [Q.L.W.] hit her again on the
          right side of her face with a closed fist, causing M.D.
          to fall on a gate. [Q.L.W.] pulled M.D. by the hair
          causing her to fall to the ground. While M.D. was on
          the ground, [Q.L.W.] struck and kicked her about ten
          times. While she was on the ground, a second
          attacker, Richard Eubanks [(“Eubanks”)], an adult,
          joined in on the assault and also repeatedly kicked
          and struck her. … After the assault ended[,] and
          [Q.L.W.] and [Eubanks] appeared to be leaving, M.D.
          grabbed the leg of [Q.L.W.] and observed that
          [Q.L.W.] was wearing a pair of white, blue, gray, and
          pink shoes that she recognized as a style of sneakers
          known as “Diamond Turfs.”

                              *     *     *

          On January 16, 2013, the police showed M.D. a
          photo array and M.D. identified [Q.L.W.] as the
          female who attacked her on December 15, 2013.

          Although she had been repeatedly struck about the
          face and body, M.D. testified that other than a
          broken nail, she did not suffer any facial injuries,
          cuts, broken bones, or anything of that nature. Her
          glasses were broken.


                                   -2-
J-A29004-14



          During cross-examination, M.D. stated that she had
          initially believed the female attacker to be the
          girlfriend of L.E.’s brother and that she had reported
          this belief to the police on the night of the assault.
          However, the next day, when she learned that
          [Q.L.W.] owned a pair of the white, blue, gray and
          pink Diamond Turf shoes that matched the shoes
          worn by her attacker[,] she believed that [Q.L.W.]
          was her female attacker.

                              *     *     *

          The Commonwealth called Celena Humphreys
          [(“Humphreys”)]    as    the      second witness.
          [Humphreys] is the mother of L.E.

                              *     *     *

          [Humphreys] testified that [on December 7, 2012,]
          she overheard a telephone conversation in which
          [Q.L.W.] was involved. [Humphreys] reported that
          she heard [Q.L.W.] state “I tried to hurt [M.D.] ...
          My cousin will do it.” [Humphreys] heard the ringing
          of an outgoing telephone call because the
          [speakerphone] was activated. When the call was
          answered, [Humphreys] heard a female voice on the
          line. She did not recognize this voice. The female
          voice asked the question[,] “What is it that you want
          me to do?” [Humphreys] testified that [Q.L.W.]
          answered, “When you see her, don’t say anything,
          hit her till she falls and then start kicking her.”

          [Humphreys] stated she heard her son ask [Q.L.W.]
          “Is she going to do it?” and [Q.L.W.] replied[,] “Of
          course she’s going to do it. She’s about that life.”

                              *     *     *

          [Humphreys] stated that she immediately reported
          the plot to “jump” M.D. to L.E.’s father as well as to
          her husband who was downstairs in the home. Later
          that evening, [Humphreys] also confronted L.E. on
          what she had heard, and reprimanded him by saying


                                  -3-
J-A29004-14


            “I know you don’t want this baby, but that’s not the
            way to go about it.” When she was interviewed by
            the detectives on December 19, 2012, she informed
            the detectives about the conversation she overheard
            between [Q.L.W.], L.E., and the female voice on the
            phone.

Trial Court Opinion, 3/28/14, at 4-8 (footnotes and record citations omitted).

      On March 15, 2013, Q.L.W. was charged in a delinquency petition

under the Juvenile Act, 42 Pa.C.S.A. § 6301 et seq., with aggravated assault

and conspiracy to commit aggravated assault.      On June 3, 2013, the trial

court granted the Commonwealth’s motion to amend the juvenile petition to

add aggravated assault of an unborn child.     On August 7, 2013, following

several continuances, the trial court held a hearing on the case wherein it

took testimony and heard arguments by counsel. That same day, the trial

court found beyond a reasonable doubt that Q.L.W. had committed each of

the delinquent acts with which she was charged. On August 22, 2013, the

trial court entered an order committing Q.L.W. to the Bethesda Group Home.

      On September 20, 2013, Q.L.W.’s counsel filed a motion for

reconsideration. On October 16, 2013, the trial court denied the motion for

reconsideration because Q.L.W.’s counsel did not file it within ten days of the

August 7, 2013 order, as required by Rule 620 of the Pennsylvania Rules of

Juvenile Court Procedure, and it was therefore untimely.      On October 24,

2013, Q.L.W.’s counsel filed a motion for leave to file post adjudicatory

motions, nunc pro tunc. On October 28, 2013, the trial court granted this

motion and vacated the order entered on October 16, 2013, dismissing


                                     -4-
J-A29004-14


Q.L.W.’s motion for reconsideration. On December 2, 2013, after argument,

the trial court once again denied the motion for reconsideration. On

December 31, 2013, Q.L.W. filed a timely notice of appeal. On January 6,

2014, the trial court ordered Q.L.W. to file a concise statement of the errors

complained of on appeal pursuant to Rule 1925(b) of the Pennsylvania Rules

of Appellate Procedure.4   On February 7, 2014, Q.L.W. filed a timely Rule

1925(b) statement.

     On appeal, Q.L.W. raises the following three issues for review:

           I.     Was     the    evidence     presented   at  trial
                  [insufficient] to establish, beyond a reasonable
                  doubt, that Q.L.W. was one of the people who
                  assaulted [M.D.] where [M.D.] solely identified
                  Q.L.W. based on someone else’s account that
                  Q.L.W. and the female attacker wore similar
                  sneakers?

           II.    Was the evidence [insufficient] to support
                  Q.L.W.’s adjudication at all three counts on a
                  conspiracy theory of liability where the
                  Commonwealth failed to show Q.L.W. directly
                  [participated] in the alleged attack and one
                  witness’s testimony regarding pieces of a
                  conversation she overheard approximately one
                  week before the attack is insufficient in and of
                  itself, to prove Q.L.W. conspired to commit the
                  crimes at issue?

           III.   Did the trial court abuse its discretion in
                  denying Q.L.W.’s post[-]sentence motion that
                  the verdict was against the weight of the
                  evidence where [M.D.]’s identification of
                  Q.L.W. and her account of the alleged assault
                  were entirely untrustworthy?

4
    Q.L.W. received an extension of time for filing her Rule 1925(b)
statement.


                                     -5-
J-A29004-14



Q.L.W.’s Brief at 5-6.

      Q.L.W.’s first and second issues on appeal claim that the evidence was

insufficient to prove that Q.L.W. committed the three above-referenced

crimes. Q.L.W.’s Brief at 18-32. In reviewing a challenge to the sufficiency

of the evidence, our standard of review is as follows:

            As a general matter, our standard of review of
            sufficiency claims requires that we evaluate the
            record in the light most favorable to the verdict
            winner giving the prosecution the benefit of all
            reasonable inferences to be drawn from the
            evidence.   Evidence will be deemed sufficient to
            support the verdict when it establishes each material
            element of the crime charged and the commission
            thereof by the accused, beyond a reasonable doubt.
            Nevertheless, the Commonwealth need not establish
            guilt to a mathematical certainty. Any doubt about
            the defendant’s guilt is to be resolved by the fact
            finder unless the evidence is so weak and
            inconclusive that, as a matter of law, no probability
            of fact can be drawn from the combined
            circumstances.

            The Commonwealth may sustain its burden by
            means     of     wholly    circumstantial    evidence.
            Accordingly, [t]he fact that the evidence establishing
            a    defendant’s   participation   in   a   crime    is
            circumstantial does not preclude a conviction where
            the evidence coupled with the reasonable inferences
            drawn therefrom overcomes the presumption of
            innocence. Significantly, we may not substitute our
            judgment for that of the fact finder; thus, so long as
            the evidence adduced, accepted in the light most
            favorable to the Commonwealth, demonstrates the
            respective elements of a defendant’s crimes beyond
            a reasonable doubt, the appellant’s convictions will
            be upheld.




                                     -6-
J-A29004-14


Commonwealth v. Franklin, 69 A.3d 719, 722-23 (Pa. Super. 2013)

(internal quotations and citations omitted).

      Q.L.W. first asserts that the evidence was insufficient to prove her

identity as one of M.D.’s attackers. Q.L.W.’s Brief at 18-24. Q.L.W. bases

this assertion on M.D.’s testimony indicating that she initially believed

persons other than Q.L.W. and Eubanks assaulted her and that she did not

name Q.L.W. as one of her attackers until she learned that Q.L.W.’s

sneakers resembled those M.D. observed on one of her assailants. See id.

Q.L.W. asserts that a witness identification based solely on a generic article

of clothing is insufficient to establish an identity. Id. at 20.

      We conclude, after evaluating the record in the light most favorable to

the Commonwealth as the verdict winner, that the evidence was sufficient to

prove Q.L.W.’s identity as one of M.D.’s attackers. The certified record on

appeal reflects the following.    M.D. testified that after she concluded her

second meeting with L.E., she observed Q.L.W. in the alleyway walking

towards her. N.T., 8/7/13, at 20. M.D. stated that Q.L.W. started skipping

and then began running at her and when Q.L.W. caught up with her, Q.L.W.

hit her on the side of the face. Id. at 21. M.D. reported that Q.L.W. hit her

again, knocking her onto a gate and then the ground.          Id.   M.D. testified

that Q.L.W. then pulled her by her hair and started kicking her while she was

on the ground. Id. M.D. stated that Eubanks then arrived and began hitting

and kicking her. Id. M.D. reported that before Q.L.W. left the scene, she



                                       -7-
J-A29004-14


grabbed Q.L.W.’s leg and observed that she was wearing white, blue, gray,

and pink “Diamond Turf” shoes.       Id.   Humphreys testified that she had

previously witnessed Q.L.W. wearing white, gray, pink, and turquoise shoes.

Id. at 97. Additionally, on January 16, 2013, M.D. identified Q.L.W. as her

attacker from a photo array. See id. at 106-09. Therefore, based on the

foregoing, we agree with the trial court’s conclusion that the evidence was

sufficient to prove Q.L.W.’s identity as M.D.’s attacker.

      Q.L.W. next claims that the evidence was insufficient to prove that she

was involved in a conspiracy to assault M.D.         Q.L.W.’s Brief at 25-32.

Q.L.W. bases this claim on the fact that the conversation Humphreys

overheard and testified to showing her involvement in a conspiracy to

assault M.D. occurred a week prior to the assault on M.D. See id.

      The Pennsylvania Crimes Code defines conspiracy as follows:

            A person is guilty of conspiracy with another person
            or persons to commit a crime if with the intent of
            promoting or facilitating its commission he:

                  (1) agrees with such other person or persons
                  that they or one or more of them will engage
                  in conduct which constitutes such crime or an
                  attempt or solicitation to commit such crime;
                  or

                  (2) agrees to aid such other person or persons
                  in the planning or commission of such crime or
                  of an attempt or solicitation to commit such
                  crime.

18 Pa.C.S.A. § 903(a). This Court has long held that this requires proof of

“(1) an intent to commit or aid in an unlawful act, (2) an agreement with a


                                     -8-
J-A29004-14


co-conspirator and (3) an overt act in furtherance of the conspiracy.”

Commonwealth v. Thoeun Tha, 64 A.3d 704, 710 (Pa. Super. 2013)

(quoting Commonwealth v. Galindes, 786 A.2d 1004, 1010 (Pa. Super.

2001)). “This overt act need not be committed by the defendant; it need

only be committed by a co-conspirator.” Commonwealth v. Murphy, 795

A.2d 1025, 1038 (Pa. Super. 2002) (quotations and citation omitted).

           The essence of a criminal conspiracy is a common
           understanding, no matter how it came into being,
           that a particular criminal objective be accomplished.
           Therefore, a conviction for conspiracy requires proof
           of the existence of a shared criminal intent. An
           explicit or formal agreement to commit crimes can
           seldom, if ever, be proved and it need not be, for
           proof of a criminal partnership is almost invariably
           extracted from the circumstances that attend its
           activities. Thus, a conspiracy may be inferred where
           it is demonstrated that the relation, conduct, or
           circumstances of the parties, and the overt acts of
           the co-conspirators sufficiently prove the formation
           of a criminal confederation. The conduct of the
           parties and the circumstances surrounding their
           conduct may create a web of evidence linking the
           accused to the alleged conspiracy beyond a
           reasonable doubt. Even if the conspirator did not act
           as a principal in committing the underlying crime, he
           is still criminally liable for the actions of his co-
           conspirators in furtherance of the conspiracy.

Commonwealth v. McCall, 911 A.2d 992, 996-97 (Pa. Super. 2006)

(quoting Commonwealth v. Johnson, 719 A.2d 778, 784–85 (Pa. Super.

1998) (en banc)).

     We agree with the trial court’s conclusion that the evidence was

sufficient, when viewed in the light most favorable to the Commonwealth, to



                                   -9-
J-A29004-14


prove that Q.L.W. was involved in a conspiracy to assault M.D. Humphreys

testified that on December 7, 2012, about a week prior to M.D.’s assault,

while standing in her bedroom doorway, she overheard a telephone

conversation between Q.L.W., L.E., and an unidentified female.          N.T.,

8/7/13, at 77, 81-85. Humphreys stated that she heard Q.L.W. say that she

“tried to hurt [M.D.]” and that Q.L.W.’s “cousin will do it.”   Id. at 83-84.

Humphreys reported that the unidentified female asked, “What is it that you

want me to do?”    Id. at 84.   Humphreys testified that Q.L.W. answered,

“When you see her, don’t say anything, hit her till she falls and then start

kicking her.” Id. On December 15, 2012, the attack upon M.D. occurred

during which Q.L.W. punched her until she fell and then started kicking her.

Id. at 10, 21. Therefore, the certified record on appeal supports the trial

court’s conclusion that there was sufficient evidence proving that Q.L.W.

engaged in a conspiracy to assault M.D.

     Q.L.W. relies on Commonwealth v. Holguin, 385 A.2d 1346 (Pa.

Super. 1978) in an attempt to argue that because the conversation that

Humphreys overheard occurred roughly a week prior to M.D.’s assault,

Q.L.W. could have abandoned the conspiracy in the interim. Q.L.W.’s Brief

at 28-32.   In Holguin, the appellant brought a gun into a bar after his

friends, Hughes and Slick, got into a fight. Holguin, 385 A.2d at 1348. The

appellant and Hughes proceeded to move about the bar pointing the gun at

patrons. Id. When the appellant, Hughes, and Slick decided to leave, the



                                   - 10 -
J-A29004-14


appellant and Hughes threatened to come back with more guns. Id. About

two hours later, Hughes and some other men (but not the appellant)

returned to the bar, attempted to kick the bar door open, and fired four

gunshots into the bar. Id. at 1348-49. The trial court in that case found

the appellant guilty of, inter alia, conspiring to commit criminal mischief.5

Id. at 1348.   This Court reversed his conviction for conspiring to commit

criminal mischief because “[w]e [could not] find beyond a reasonable doubt

that [the] appellant did not abandon Hughes during the almost two hour

interim between incidents or that [the] appellant agreed to engage in a

further escalation of criminal activity.” Holguin, 385 A.2d at 1354.

     We find Holguin easily distinguishable from the instant matter.         In

Holguin, the appellant, although he threatened to come back to the bar

with more guns, did not return with Hughes when Hughes attempted to kick

the door down and fired four shots into the bar. Id. at 1348-49. Thus, our

Court reversed the appellant’s conspiring to commit criminal mischief

conviction because there was no indication that the appellant did not

abandon Hughes after they initially left the bar or that the appellant agreed

to engage in an escalation of criminal activity. See id. at 1354. Conversely,

here, there was sufficient evidence proving that Q.L.W. not only planned

M.D.’s assault, but that she also took part in M.D.’s attack.          Q.L.W.’s

participation in M.D.’s assault demonstrates that she did not abandon the

5
  Criminal mischief occurs where a person damages the tangible property of
another. See 18 Pa.C.S.A. § 3304(a).


                                   - 11 -
J-A29004-14


conspiracy in the time between the conversation Humphreys overheard and

the attack. Therefore, Holguin is not applicable to this case.

      For her final issue on appeal, Q.L.W. argues that the verdict was

against the weight of the evidence because M.D.’s identification of Q.L.W.

and account of the assault were untrustworthy.         Q.L.W.’s Brief at 33-36.

Q.L.W. believes the evidence of M.D.’s identification was untrustworthy

because M.D. initially reported to police that two other people besides

Q.L.W. and Eubanks assaulted her and because M.D. did not identify Q.L.W.

as one of her attackers until she learned that Q.L.W.’s sneakers resembled

those M.D. observed on one of her assailants.        Id.   Q.L.W. also believes

M.D.’s testimony was unreliable because despite her claims that her

attackers punched and kicked her, neither M.D. nor her unborn baby

suffered any injuries other than a broken nail. Id. at 35.

      Our standard of review when presented with a weight of the evidence

claim is different from that applied by the trial court:

            The weight of the evidence is exclusively for the
            finder of fact who is free to believe all, part, or none
            of the evidence and to determine the credibility of
            the witnesses. An appellate court cannot substitute
            its judgment for that of the finder of fact. Thus, we
            may only reverse the lower court’s verdict if it is so
            contrary to the evidence as to shock one’s sense of
            justice. Moreover, where the trial court has ruled on
            the weight claim below, an appellate court’s role is
            not to consider the underlying question of whether
            the verdict is against the weight of the evidence.
            Rather, appellate review is limited to whether the
            trial court palpably abused its discretion in ruling on
            the weight claim. … Since the trial judge is in the


                                     - 12 -
J-A29004-14


            best position to view the evidence presented, an
            appellate court gives the trial judge the utmost
            consideration    when    reviewing     the    court’s
            determination that the verdict is against the weight
            of the evidence.

Commonwealth v. Morgan, 913 A.2d 906, 909 (Pa. Super. 2006) (citation

omitted).

      Here, the trial court found M.D.’s testimony identifying Q.L.W. as one

of her attackers and Humphreys’ testimony revealing Q.L.W.’s involvement

in a plot to assault M.D. to be credible, and we cannot substitute our

judgment for that of the finder of fact. Trial Court Opinion, 3/28/14, at 10-

11; see also Morgan, 913 A.2d at 909.         Additionally, the record reflects

that Q.L.W. conspired to assault M.D. and that Q.L.W. participated in the

actual attack.   See supra, pp. 7-11.       After reviewing the evidence, we

conclude that the record supports the trial court’s conclusion and that its

decision was not an abuse of discretion. Accordingly, Q.L.W.’s weight of the

evidence claim also fails.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/17/2014



                                   - 13 -
J-A29004-14




              - 14 -
