J-S51011-17



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA


                    v.

KENDALL PHILIPS

                         Appellant                   No. 3133 EDA 2015


          Appeal from the Judgment of Sentence October 2, 2015
           In the Court of Common Pleas of Philadelphia County
           Criminal Division at No(s): CP-51-CR-0010940-2013


BEFORE: BOWES, J., SHOGAN, J., AND STEVENS, P.J.E.,*

MEMORANDUM BY BOWES, J.:                       FILED SEPTEMBER 21, 2017

      Kendall Philips appeals from the aggregate judgment of sentence of

nine to thirty years incarceration imposed following his jury trial convictions

for sexual assault and robbery. We affirm.

      The trial court aptly summarized the testimony presented by the

Commonwealth at trial, which we adopt herein.

      On July 23, 2011, [K.K.] borrowed a neighbor’s car to give
      James Spain a ride to the area of Bridge and Lesher Streets in
      Philadelphia. Her seven[-]year[-]old son was in the back seat.
      Appellant, an associate of Spain, was waiting for them at that
      location. [K.K.] had never met and did not know Appellant.
      When [K.K.] and Spain exited the vehicle, the three engaged in
      brief conversation before Appellant took [K.K.] into a nearby
      alley. As Appellant had [K.K.] pinned against a chain link fence,
      Spain ran into the alley where he rummaged through her purse,
      stealing her car keys. Once he retrieved the keys, Spain took off
      in the car with the victim’s young son still in the back seat.


* Former Justice specially assigned to the Superior Court.
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     As Spain drove off [K.K.] became highly upset and screamed for
     her son. Appellant choked her around the neck until she lost
     consciousness. When she regained consciousness she found
     herself on the ground with Appellant on top of her with his penis
     inside her vagina. [K.K.] again panicked about her missing child
     and pleaded with Appellant to find him. Appellant made a phone
     call to Spain and informed [K.K.] that Spain had left her son at a
     Chinese restaurant at Bridge and Hawthorne Streets. [K.K.]
     rushed to the location to get her son and then immediately
     reported the crime to police.

     Philadelphia Police Officer Ashley Johnson testified that [K.K.]
     told her she had observed Appellant drop something in the alley
     as he walked away after the assault. Officer Johnson further
     testified that [K.K.] was very upset and had bruises on her arms,
     legs and back and strangulation marks around her neck. Officer
     Christopher Brennan recovered a condom from the alley where
     the assault took place. Because [K.K.] had never seen Appellant
     before that night and could not make an identification, the crime
     remained unsolved until January 2013 when the sperm on the
     condom       was    matched     to    Appellant’s  DNA     profile.
     Appellant was finally arrested for this case on May 30, 2013.

     Philadelphia Police Officer Edward Lichtenhahn, who interviewed
     the Appellant after he was arrested, testified at trial and read
     from the Appellant’s statement. In response to [whether K.K.
     consented to sex], Appellant answered . . . “In the beginning she
     looked scared, then finally gave me oral sex. And in the middle
     of the oral sex that’s when I stopped her so I could have vaginal
     sex with her. When I was having sex with her and I nutted, she
     told me to stop. But I was really into it and I continued having
     sex with her.”

     Appellant testified that Spain had called him saying he had a
     woman who wanted to buy some Percocets, and that [K.K.]
     agreed to give him sex in exchange for the drugs. Appellant
     claimed that the sex was consensual but could not explain how
     she sustained her injuries. He further testified that he tried to
     stop Spain from stealing her keys and had no idea Spain
     intended to steal her car.




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Trial Court Opinion, 7/20/16, at unnumbered 2-3 (citations to transcript

omitted).1

       The parties proceeded to a jury trial on seven charges: aggravated

assault, three sex crimes (rape, involuntary deviate sexual intercourse, and

sexual assault), unlawful restraint, robbery, and conspiracy to do same. The

jury rendered guilty verdicts at the counts of robbery and sexual assault,

and not guilty at all remaining counts. Appellant was sentenced to a period

of five to ten years incarceration for sexual assault, and a consecutive period

of four to twenty years incarceration for robbery. He timely appealed and

the matter is properly before us.          Appellant presents one question for our

review: “Was the evidence insufficient to convict Appellant Kendall Philips?”

Appellant’s brief at 3.

       Whether the evidence is sufficient to support the conviction presents a

matter of law; our standard of review is de novo and our scope of review is

plenary. Commonwealth v. Walls, 144 A.3d 926, 931 (Pa.Super. 2016)

(citation omitted). In conducting our inquiry, we

       examine whether the evidence admitted at trial, and all
       reasonable inferences drawn therefrom, viewed in the light most
       favorable to the Commonwealth as verdict winner, support the
       jury's finding of all the elements of the offense beyond a
____________________________________________


1
   Resolution of this appeal was delayed due to initial counsel’s withdrawal
for medical reasons. Then, the appeal was dismissed on March 21, 2017
because newly-appointed counsel did not file a brief. The appeal was
subsequently reinstated.



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      reasonable doubt. The Commonwealth may sustain its burden by
      means of wholly circumstantial evidence.

Commonwealth v. Doughty, 126 A.3d 951, 958 (Pa. 2015).

      Appellant challenges both convictions, and we address each in turn.

The crime of sexual assault is defined as follows: “[A] person commits a

felony of the second degree when that person engages in sexual intercourse

or deviate sexual intercourse with a complainant without the complainant's

consent.”    18 Pa.C.S. § 3124.1.      The evidence easily serves to establish

these elements.       The victim clearly testified that she was choked by

Appellant, and, when she regained consciousness, Appellant was penetrating

her vagina with his penis. Clearly, she did not consent.

      Appellant’s argument to the contrary rests on the jury accepting his

version of events.    “[Appellant] stated that the complainant gave him oral

sex in the alley.    He said that he wanted to go further and that K.K. said

alright.”   Appellant’s brief at 17.   Appellant indeed relayed that version of

events to the jury but the victim’s account was quite different, and the jury

was free to credit or discredit the differing accounts as it saw fit.    As we

observed in Commonwealth v. McDonough, 96 A.3d 1067 (Pa.Super.

2014):

      Despite McDonough's trial testimony that the victim consented to
      his sexual acts, the jury, as the trier of fact, was free to believe
      all, part, or none of the evidence presented by the witnesses. It
      is evident from the verdict that the jury obviously found the
      victim's testimony credible and chose not to believe
      McDonough's version of the events. Because it was within the

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       province of the jury to make these credibility findings with
       regard to the issue of consent, McDonough's first claim fails.

Id. at 1070 (citation omitted).         Therefore, the evidence was sufficient to

support the verdict.

       We now address the conviction for robbery. The Commonwealth was

required to prove that “[I]n the course of committing a theft, [Appellant] . . .

inflict[ed]   serious    bodily    injury      upon   another[.]”   18   Pa.C.S.   §

3701(a)(1)(i).2     An act is “in the course of committing a theft” if it occurs

during an attempt to commit theft or in flight after its commission.               18

Pa.C.S. § 3701(a)(2).

       Like the foregoing claim, Appellant challenges the sufficiency of the

evidence in a light most favorable to him. He claims that “[Appellant] was

not aware that Mr. Spain would take the bag, car keys, or vehicle.

[Appellant] was not a conspirator to commit Robbery nor did he commit a

robbery.” Appellant’s brief at 19.

       The testimony of K.K. established that Appellant knew precisely what

Spain was doing, as she stated that Appellant pinned her against a fence
____________________________________________


2
  The Commonwealth asserts that the conviction may be sustained if the
Appellant took or removed property by force however slight.
Commonwealth’s brief at 9.         That language tracks 18 Pa.C.S. §
3701(a)(1)(v), which is a felony of the third degree; however, according to
the docket, Appellant was convicted of robbery as a felony of the first degree
under (a)(1)(i). In any event, Appellant does not challenge the serious
bodily injury element.




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while Spain, the conspirator, rummaged through her purse, took the car

keys, and fled with the vehicle. Appellant then proceeded to commit sexual

assault. We find that the evidence sufficed to establish that Appellant acted

as an accomplice.3 Accomplice liability is set forth by statute.

       (a) General rule.--A person is guilty of an offense if it is
       committed by his own conduct or by the conduct of another
       person for which he is legally accountable, or both.

       (b) Conduct of another.--A person is legally accountable for
       the conduct of another person when:
       ....
             (3) he is an accomplice of such other person in the
             commission of the offense.

       (c) Accomplice defined.--A person is an accomplice of another
       person in the commission of an offense if:

              (1) with the intent of promoting or facilitating the
              commission of the offense, he:

                     (i) solicits such other person to commit
                     it; or

____________________________________________


3
  To this end, we note that the trial court opinion states, “The jury made it
clear that its verdict was based on an accomplice theory of liability.” Trial
Court Opinion, 7/20/16, at unnumbered 5. Appellant does not challenge the
jury instructions, but we note the following facts.

The certified record includes a written jury question that states, “Your Honor,
we the jury request . . . . clarification of the robbery charge. Is he charged
as an accomplice?“ The verdict sheet, as signed by the foreperson, states
“Not Guilty” for robbery but has a handwritten notation underneath stating,
“criminal accomplice to robbery: guilty.” The docket indicates that the jury
was polled, presumably because of this discrepancy. The docket entry reads
as follows: “The Jury was polled as to whether the[y] feel that the defendant
didn’t commit the Robbery but was an accomplice to the Robbery.”



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                     (ii) aids or agrees or attempts to aid
                     such other person in planning or
                     committing it; or
       ....

18 Pa.C.S. § 306.           This requirement “may be established wholly by

circumstantial evidence. Only ‘the least degree of concert or collusion in the

commission of the offense is sufficient to sustain a finding of responsibility

as an accomplice.’ No agreement is required, only aid.” Commonwealth v.

Knox, 50 A.3d 732, 739 (Pa.Super. 2012) (quoting Commonwealth v.

Kimbrough, 872 A.2d 1244, 1251 (Pa.Super.2005)).

       Applying that test, the evidence suffices to establish that Appellant

aided Spain. He physically restrained the victim while Spain stole the keys

and the vehicle.       He thereafter rendered K.K. unconscious and had sex

without her consent.       A rational fact-finder could find that Appellant aided

Spain in the commission of the theft crime, and the conviction must stand. 4

       Judgment of sentence affirmed.



____________________________________________


4
  Appellant highlights the statutory elements of the conspiracy charge, and
posits that he cannot be guilty of robbery since he was deemed not guilty of
conspiracy. However, inconsistent verdicts are generally allowed to stand so
long as the evidence is sufficient to support the conviction.           See
Commonwealth v. Miller, 35 A.3d 1206, 1208 (Pa. 2012). Moreover:
“Conspiracy requires proof of an additional factor which accomplice liability
does not-the existence of an agreement.” Commonwealth v. McClendon,
874 A.2d 1223, 1229 (Pa.Super. 2005) (citation omitted).




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/21/2017




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