J-S43008-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

SHARIFFA STEPHENS

                            Appellant                No. 2930 EDA 2013


            Appeal from the Judgment of Sentence August 13, 2013
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0002834-2012
                           MC-51-CR-0043809-2011


BEFORE: GANTMAN, P.J., ALLEN, J., and FITZGERALD, J.*

MEMORANDUM BY GANTMAN, P.J.:                       FILED AUGUST 04, 2014

       Appellant, Shariffa Stephens, appeals from the judgment of sentence

entered in the Philadelphia County Court of Common Pleas, following her

bench trial conviction for aggravated assault, simple assault, recklessly
                                                                 1
                                                                     We affirm.

       The relevant facts and procedural history of this appeal are as follows.

On October 13, 2011, Appellant and two cohorts drove to an area near 2100

South Olden Street in Philadelphia, where Saprina Jackson was taking a

walk. Appellant and her companions exited the vehicle together and quickly

____________________________________________


1
    18 Pa.C.S.A. §§ 2702(a), 2701(a), 2705, and 903, respectively.


______________________________

*Former Justice specially assigned to the Superior Court.
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approached Ms. Jackson.    Appellant, or one of her cohorts, immediately

struck Ms. Jackson in the head with a brick several times, causing Ms.

Jackson to fall to the ground.   For approximately ten to fifteen minutes,

Appellant and her cohorts punched and kicked Ms. Jackson as she lay on the

                                                                 took Ms.



fled the scene together.



Appellant after they received information that connected Appellant and two

other women, Nicole Doughty and Kayana Blunt, with the earlier incident.

When the police asked Appellant if she knew anything about the incident,



asked Appellant if she knew where to find Ms. Doughty and Ms. Blunt,

Appellant told the police that Ms. Doughty and Ms. Blunt were upstairs in



maintained that whatever happened was a fair fight. The police handcuffed

Appellant, Ms. Doughty, and Ms. Blunt, and drove them to the hospital,

where Ms. Jackson was receiving treatment.    After Ms. Jackson positively

identified Appellant, Ms. Doughty, and Ms. Blunt as the women who had

attacked her and took her pocketbook, the police arrested Appellant, Ms.




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     Following a one-day bench trial on April 24, 2013, the court found

Appellant guilty of aggravated assault, simple assault, REAP, and criminal

conspiracy.    On August 13, 2013, the court sentenced Appellant to an

aggregate     term   of   twenty-four    (24)   to   forty-

imprisonment, followed by forty-

2013, Appellant timely filed post-sentence motions, which the court

subsequently denied by order dated August 21, 2013. Appellant timely filed

a notice of appeal on September 10, 2013. The court ordered Appellant on

September 25, 2013, to file a concise statement of errors complained of on

appeal pursuant to Pa.R.A.P. 1925(b). Appellant timely complied.

     Appellant raises the following issues for our review:

        WHETHER THE TRIAL COURT ERRED WHEN IT FOUND
        [APPELLANT] GUILTY [OF] AGGRAVATED ASSAULT,
        SIMPLE ASSAULT AND RECKLESS ENDANGERING OF
        ANOTHER PERSON (REAP) WHEN IN FACT THE EVIDENCE
        PRESENTED ESTABLISHED THAT [APPELLANT] WAS
        MERELY PRESENT WHILE THE OTHER CHARGED CO-
        DEFENDANTS, KAYLA BLUNT AND NICOLE DOUGHTY, HIT
        THE [VICTIM], SAPRINA JACKSON, WITH A BRICK AND
        KICKED HER REPEATEDLY. [MS.] JACKSON TESTIFIED
        THAT IT WAS HER BELIEF THAT [APPELLANT] WAS NOT
        INVOLVED AND TRIED TO BREAK UP THE FIGHT.

        WHETHER [THE] TRIAL COURT ERRED WHEN IT FOUND
        [APPELLANT] GUILTY [OF] CONSPIRACY TO COMMIT
        AGGRAVATED ASSAULT WHEN THE EVIDENCE WAS
        INSUFFICIENT TO ESTABLISH THAT [APPELLANT] AND
        HER CO-DEFENDANTS, KAYLA BLUNT AND NICOLE
        DOUGHTY ACTED WITH INTENT OF PROMOTING OR
        FACILITATING THE COMMISSION OF THE OFFENSE AND
        THE EVIDENCE DID NOT ESTABLISH THAT DEFENDANTS
        WERE IN AGREEMENT TO COMMIT A CRIME.       THE
        EVIDENCE PRESENTED WAS THAT [APPELLANT] WAS

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        MERELY PRESENT AND ATTEMPTED TO BREAK UP THE
        FIGHT BETWEEN CO-DEFENDANTS AND MS. JACKSON.

        WHETHER [THE] COURT ERRED IN FINDING [APPELLANT]
        GUILTY, WHICH WAS AGAINST THE WEIGHT OF THE
        EVIDENCE SINCE IT WAS CLEAR THAT THE [VICTIM], MS.
        JACKSON,   EXONERATED     [APPELLANT]   WITH   HER
        TESTIMONY    BY   STATING    THAT   SHE   BELIEVED
        [APPELLANT] WAS MERELY PRESENT AND ATTEMPTED TO
        BREAK-UP THE ALTERCATION BETWEEN THE [VICTIM]
        AND THE CO-DEFENDANTS WHO SHE TESTIFIED WERE
        MORE    INVOLVED   [THAN]    [APPELLANT].    MORE
        IMPORTANTLY BASED ON EVIDENCE ILLUMINATING CO-

        WAS FOUND       NOT   GUILTY BY THE COURT          ON   ALL
        CHARGES.




consistently exonerated Appellant. Appellant claims Ms. Jackson repeatedly

stated that Appellant was not part of the group that attacked her.

Furthermore, Appellant contends Ms. Jackson suggested Appellant tried to

break up the fight. Appellant also asserts police officer testimony regarding



                                                                           nt

to convict Appellant of aggravated assault, simple assault, and REAP; and

this Court should reverse.

     In her second issue, Appellant argues Ms. Jackson testified that

Appellant tried to break up the fight rather than aid the assailants.

Appellant contends the evidence actually gives rise to the inference that

Appellant worked to stop the crime rather than facilitate it.   Furthermore,

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                                                                 -defendant, Ms.

Blunt, was not guilty on all counts is contra

Appellant did participate in a criminal conspiracy to commit aggravated

assault.     Appellant concludes the evidence was insufficient to convict

Appellant of criminal conspiracy; and this Court should reverse and dismiss

the case with prejudice.

      In her third issue, Appellant argues the victim consistently testified

                                                                      -defendant

participated in the attack. Appellant avers her conviction and co-

acquittal ar



justified only by concluding the court was confused about the identity of

each co-defendant. Appellant suggests her co

justice and is made even more shocking when one considers the court found

her co-defendant not guilty. Appellant concludes her conviction was against

the weight of the evidence, and this Court should invalidate the verdict and

dismiss the case with prejudice.

      A challenge to the sufficiency of the evidence implicates the following

legal principles:

           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

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          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
                                                        -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 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 [finder] 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. Barnswell Jones, 874 A.2d 108, 120-21 (Pa.Super.

2005) (quoting Commonwealth v. Bullick, 830 A.2d 998, 1000 (Pa.Super.

2003)).

      Our standard of review for a challenge to the weight of the evidence is

as follows:

          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 has ruled on the weight claim below, an appellate
                         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.

Commonwealth v. Champney, 574 Pa. 435, 444, 832 A.2d 403, 408

(2003), cert. denied, 542 U.S. 939, 124 S.Ct. 2906, 159 L.Ed.2d 816 (2004)

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(internal citations omitted). We also observe:

        A challenge to the sufficiency of the evidence is entirely
        distinct from a challenge to the weight of the evidence.

           The distinction between these two challenges is
           critical. A claim challenging the sufficiency of the
           evidence, if granted, would preclude retrial under the
           double jeopardy provisions of the Fifth Amendment
           to the United States Constitution, and Article I,
           Section 10 of the Pennsylvania Constitution, whereas
           a claim challenging the weight of the evidence if
           granted would permit a second trial.

           A claim challenging the sufficiency of the evidence is
           a question of law. 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. Where the evidence offered to
           support the verdict is in contradiction to the physical
           facts, in contravention to human experience and the
           laws of nature, then the evidence is insufficient as a
           matter of law. When reviewing a sufficiency claim
           the court is required to view the evidence in the light
           most favorable to the verdict winner giving the
           prosecution the benefit of all reasonable inferences
           to be drawn from the evidence.

           A motion for new trial on the grounds that the
           verdict is contrary to the weight of the evidence,
           concedes that there is sufficient evidence to sustain
           the verdict.     Thus, the trial court is under no
           obligation to view the evidence in the light most
           favorable to the verdict winner. An allegation that
           the verdict is against the weight of the evidence is
           addressed to the discretion of the trial court. A new
           trial should not be granted because of a mere conflict
           in the testimony or because the judge on the same
           facts would have arrived at a different conclusion. A
           trial judge must do more than reassess the
           credibility of the witnesses and allege that he would
           not have assented to the verdict if he were a juror.
           Trial judges, in reviewing a claim that the verdict is

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              against the weight of the evidence do not sit as the
              thirteenth juror. Rather, the role of the trial judge is
              to determine that notwithstanding all the facts,
              certain facts are so clearly of greater weight that to
              ignore them or to give them equal weight with all the
              facts is to deny justice.

Commonwealth v. Smith, 853 A.2d 1020, 1028 (Pa.Super. 2004) (quoting

Commonwealth v. Widmer, 560 Pa. 308, 318-20, 744 A.2d 745, 751-52

(2000) (internal citations omitted)). See Commonwealth v. Wilson, 825

A.2d 710, 713-14 (Pa.Super. 2003) (holding sufficiency of evidence review

does not include assessment of credibility; review of witness testimony

constitutes

evidence challenge implicated review of witness credibility, claim was

actually weight challenge and deemed waived, for failure to preserve it in

Pa.R.Crim.P. 607 motion before trial court).

      The Crimes Code defines aggravated assault in relevant part as

follows:

           § 2702. Aggravated assault

           (a) Offense defined.         A person is guilty of aggravated
           assault if he:

           (1) 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). The court must evaluate each case on its own

particular facts, but under appropriate circumstances, even a single punch to

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the face can constitute aggravated assault. Commonwealth v. Lewis, 911

A.2d 558, 564 (Pa.Super. 2006).          Probative circumstances in this inquiry

have included evidence that the assailant was disproportionately larger or

stronger than the victim, that the assailant had to be restrained from

escalating the attack, that the assailant had a weapon or other implement to

aid the attack, or that the assailant made statements before, during, or after

the   attack which   might   indicate     an intent to       inflict further   injury.

Commonwealth v. Bruce, 916 A.2d 657, 663 (Pa.Super. 2007), appeal

denied, 593 Pa. 754, 932 A.2d 74 (2007).                 Evidence showing that an

appellant intended to strike a dazed and helpless victim again can establish

intent to cause serious bodily injury.      Id.       The Pennsylvania Crimes Code

defines simple assault as follows:

         § 2701 Simple Assault

         (a)      Offense defined.        A person is guilty of assault if
         he:

            (1) attempts to cause or intentionally, knowingly or
            recklessly causes bodily injury to another;

            (2) negligently causes bodily injury to another with a
            deadly weapon;

            (3) attempts by physical menace to put another in
            fear of imminent serious bodily injury; or

                                     *     *      *

18 Pa.C.S.A. § 2701(a)(1)-(3).

      The Pennsylvania Crimes Code defines the offense of REAP as follows:


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engages in conduct which places or may place another person in danger of




which causes serious, permanent disfigurement, or protracted loss or

impairment of the

2301. A person is guilty of REAP when that person: (1) possessed a mental

state of recklessness; (2) committed a wrongful act; and (3) created the

danger of death or serious bodily injury in the performance of the wrongful

act. Commonwealth v. Emler, 903 A.2d 1273, 1278 (Pa.Super. 2006).

        This statutory provision was directed against reckless
        conduct entailing a serious risk to life or limb out of
        proportion to any utility the conduct might have. The
        crime of REAP is a crime of assault which requires the
                                                          actual
        present ability to inflict harm.

Commonwealth v. Reynolds, 835 A.2d 720, 727-28 (Pa.Super. 2003).

     mens rea



Commonwealth v. Martuscelli, 54 A.3d 940, 949 (Pa.Super. 2012).

     Section 903(a)(1) of the Crimes Code provides:

        § 903 Criminal Conspiracy

        (a) Definition of conspiracy. 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:


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        (1) agrees with such 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;

                                 *     *      *

        (b)                                            If a person
        guilty of conspiracy, as defined by subsection (a) of this
        section, knows that a person with whom he conspires to
        commit a crime has conspired with another person or
        persons to commit the same crime, he is guilty of
        conspiring with such other person or persons, to commit
        such crime whether or not he knows their identity.

18 Pa.C.S.A. § 903(a)(1), (b).        To sustain a conviction for criminal

conspiracy, the Commonwealth must establish the 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) an overt act was done in

furtherance of the conspiracy. Jones, supra at 121. Additionally:

        Circumstantial evidence may provide proof of the
        conspiracy.    The conduct of the parties and the
        circumstances surrounding such conduct may create a

        conspiracy beyond a reasonable doubt. An agreement can
        be inferred from a variety of circumstances including, but
        not limited to, the relation between the parties, knowledge
        of and participation in the crime, and the circumstances
        and conduct of the parties surrounding the criminal
        episode.    These factors may coalesce to establish a
        conspiratorial agreement beyond a reasonable doubt
        where one factor alone might fail.

Id. at 121-22.

        The essence of a criminal conspiracy is the common
        understanding that a particular criminal objective is to be
        accomplished.   Mere association with the perpetrators,
        mere presence at the scene, or mere knowledge of the

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        crime is insufficient. Rather, the Commonwealth must
        prove that the defendant shared the criminal intent, i.e.,
        that the [defendant] was an active participant in the
        criminal enterprise and that he had knowledge of the
        conspiratorial agreement. The defendant does not need to
        commit the overt act; a co-conspirator may commit the
        overt act.

Commonwealth v. Lambert, 795 A.2d 1010, 1016 (Pa.Super. 2002),

appeal denied, 569 Pa. 701, 805 A.2d 521 (2002) (internal citations and

quotation marks omitted) (emphasis added).      Circumstances such as an

association between alleged conspirators, knowledge of the commission of

the crime, presence at the scene of the crime, and/or participation in the



conjunction with each other and                                       Id.

     After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinion of the Honorable Chris R.

                                                                      court

opinion comprehensively discusses and properly disposes of the questions

presented.    (See Trial Court Opinion, filed October 28, 2013, at 2-6)

(finding: (1) victim identified Appellant as member of group that exited

vehicle together; one member of group struck victim in head with brick; one

or more than one member of group struck victim several more times with

brick; all members of group surrounded victim and punched and kicked

victim while victim lay on ground; assault continued until one member of




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assailant; victim could not explicitly identify which blows she received from

individual   group   members,    but   evidence   was   sufficient   to   establish

                                         everity of blows rose to level required

for aggravated assault, even if Appellant did not use brick to beat victim;

Appellant was properly convicted of aggravated assault, simple assault,

REAP; (2) victim identified Appellant as having exited vehicle with other



during assault is sufficient for finding that Appellant was engaged in conduct

of assault; all women, including Appellant, left scene of crime together in

vehicle they arrived in af

testimony that Appellant exited van with other women, remained present at

scene, surrounded victim, and fled from scene with other women sufficiently

established Appellant did aid in commission of crime; Appellant was properly

convicted of conspiracy to commit aggravated assault; (3) testimony by

victim and police officers was sufficient to establish crime; record does not



trial is not imperative and justice was properly served).       Accordingly, we

affirm on the basis of the trial court opinion.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/4/2014




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