J-A02029-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                  IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                       Appellee

                  v.

RICHARD HINES

                       Appellant                    No. 643 EDA 2014


        Appeal from the Judgment of Sentence of January 30, 2014
            In the Court of Common Pleas of Delaware County
           Criminal Division at No.: CP-23-CR-00030678-2013


BEFORE: PANELLA, J., LAZARUS, J., and WECHT, J.

MEMORANDUM BY WECHT, J.:                          FILED MARCH 17, 2015

     Richard Hines appeals his January 30, 2014 judgment of sentence.

We affirm.

     The trial court summarized the history of the case as follows:

     The incident in question took place on August 4, 2012, on Golf
     Road in Upper Darby, Pennsylvania[,] at approximately 11:00
     pm. The victim, Soryba Tounkara, was on his way to visit a
     friend who lived at 28 Golf Road in Upper Darby. While walking
     down the street, he noticed a group of individuals, approximately
     ten in total, sitting on the steps of a neighboring home[, 16 Golf
     Road]. Upon passing the group, the victim heard one of the
     individuals say something, but as he turned around to identify
     the source of the voice, the group surrounded him. After the
     group surrounded Tournkara, a female member of the group
     punched him in the face. As Tounkara fell to the ground, the
     rest of the group began beating him. His phone and laptop were
     stolen, and his wallet was also missing following the altercation.
     Tounkara then retrieved a knife from his friend’s home, and
     returned to the scene, startling the group and causing them to
     flee on foot and disperse throughout the neighborhood.
     Tounkara sustained several injuries from the altercation,
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     including an injury to his right hand, which caused permanent
     damage to a finger.

     Detective Thomas Thompson of the Upper Darby Police
     Department then received a call for a man with a knife drawn in
     the area. Upon answering the dispatch, Detective Thompson
     discovered Tounkara, who looked “disheveled,” as if he had just
     been in a fight. At this point, Tounkara could not identify by
     name any of the members of the group that attacked him.
     However, he later observed a juvenile at the scene of the crime
     and recognized him as one of the members of the group that
     allegedly assaulted and robbed him.       At the police station,
     Detective Raymond Blohm of the Upper Darby Police Department
     prepared a photo array, where, in addition to the juvenile,
     Tounkara identified [Hines] as one of the members of the group.

     The first witness for [Hines] was Dontaya Hines, [Hines’ sister].
     According to her testimony, [Hines] did not have one primary
     residence, but instead stayed at several different locations for
     varying lengths of time over the course of the year. Ms. Hines
     went on to remark that, although her home [at 14 Golf Road] is
     [Hines’] “technical residence,” he only stays overnight in the
     house between three and four nights a year. Ms. Hines had
     already seen [Hines] at her home earlier that morning, but had
     not seen him for the rest of the day. Around midnight, [Hines]
     returned to Ms. Hines’ residence.         Upon returning, [Hines]
     mentioned hearing a warning from a neighbor of an assault and
     theft taking place on their street earlier that evening. Ms. Hines
     remarked that such a warning seemed ridiculous since, to the
     best of her knowledge, [Hines] was not in the area at the time.
     The remaining witnesses for the [d]efense spoke to [Hines’]
     general character and reputation as a law-abiding citizen, but no
     further substantive evidence was offered at that time.

Trial Court Opinion (“T.C.O.”), 8/6/2014, at 1-3 (citations to notes of

testimony and footnotes omitted).

     On December 17, 2013, after a non-jury trial, the trial court found

Hines guilty of theft by unlawful taking, simple assault, and two counts of




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conspiracy related to the other charges.1        On January 30, 2014, he was

sentenced to one month to one year of incarceration on the theft and assault

charges, with the charges to run concurrently.      Hines was given credit for

time on electronic home monitoring and was immediately paroled.              Hines

was sentenced to one year of probation on the conspiracy charges to run

consecutively to the period of incarceration.      He was also ordered to pay

restitution in the amount of $1,692.84 to Mr. Tounkara.

       On February 26, 2014, Hines timely filed a notice of appeal. The trial

court ordered, and Hines timely filed, a concise statement of errors

complained of on appeal pursuant to Pa.R.A.P. 1925(b).

       Hines raises two issues for our review:

       1. Whether the evidence was sufficient to sustain a guilty verdict
          as to each of the offenses charged: simple assault, theft, and
          conspiracy (the conspiracy as being to the underlying simple
          assault and theft). (The bases of the conviction on the
          underlying offenses would have been one of accomplice
          liability.)

       2. Whether the evidence was sufficient to sustain a guilty verdict
          based upon identification of [Hines].

Hines’ Brief at 5 (footnote omitted).

       For sufficiency challenges, our standard of review 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
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1
       18 Pa.C.S.A. §§ 3921(a); 2701(a)(1); and 903, respectively.



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       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
       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. Thompson, 106 A.3d 742, 756 (Pa. Super. 2014)

(emphasis omitted).

       Although initially Hines appears to challenge the sufficiency of the

evidence as to all four of his convictions, he does not present an argument

specifically addressing conspiracy. Hines’ Brief at 9-11. Thus, we will not

review the evidence related to that charge.2 Hines was convicted of assault

and theft upon the basis of accomplice liability.

       Accomplice liability is defined as follows:

       An accomplice is one who knowingly and voluntarily cooperates
       with or aids another in the commission of a crime. See 18
       Pa.C.S. § 306. To be an accomplice, one must be an active
____________________________________________


2
      To the extent that Hines intended to challenge the sufficiency of the
evidence for his convictions for conspiracy, we would find the challenge
waived. In his concise statement, Hines only raised the sufficiency as it
relates to accomplice liability. Any issues not raised in a concise statement
are waived. See Pa.R.A.P. 1925(b)(4)(vii).



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     partner in the intent to commit [the crime]. An [accomplice]
     must have done something to participate in the venture. [A]
     showing of mere presence at the scene of a crime is insufficient
     to support a conviction: evidence indicating participation in the
     crime is required. Even presence at the scene of a crime in the
     company of its perpetrator has been held to be insufficient to
     sustain a conviction.

Commonwealth v. Manchas, 633 A.2d 618, 627-28 (Pa. Super. 1993)

(citations and quotation marks omitted).

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

        To establish complicity, mere presence at the scene of a
        crime and knowledge of the commission of criminal acts is
        not sufficient. Nor is flight from the scene of a crime,
        without more, enough. However, those factors combined,
        along with other direct or circumstantial evidence may
        provide a sufficient basis for a conviction, provided the
        conviction is predicated upon more than mere suspicion or
        conjecture.

     Commonwealth v. Rosetti, 469 A.2d 1121, 1123 (Pa. Super.
     1983) (citations omitted).

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

modified).

     Accomplice liability may be established wholly by circumstantial

evidence. Id. at 739. However,

     a defendant cannot be an accomplice simply based on evidence
     that he knew about the crime or was present at the crime scene.
     See Commonwealth v. Wagaman, 627 A.2d 735, 740 (Pa.
     Super. 1993). There must be some additional evidence that the
     defendant intended to aid in the commission of the underlying
     crime, and then did or attempted to do so. See id. With regard

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        to the amount of aid, it need not be substantial so long as it was
        offered to the principal to assist him in committing or attempting
        to commit the crime.

Commonwealth v. Murphy, 844 A.2d 1228, 1234 (Pa. 2004) (citations

modified).

        Hines argues that the Commonwealth only proved that he was present

at the scene of the crime and that mere presence is not sufficient to prove

that he was an accomplice. Hines contends that Mr. Tounkara did not testify

that Hines hit or kicked Mr. Tounkara.        Because the Commonwealth could

not prove that he actually participated in the attack, Hines asserts that the

Commonwealth failed to meet its burden. Hines’ Brief at 9-11.

        The trial court found that Mr. Tounkara’s testimony established that

Hines was part of the group that assaulted and robbed him. In addition, the

trial court credited testimony that placed Hines next door to the scene of the

crime    that    day,   which   bolstered   the   credibility   of   Mr.   Tounkara’s

identification. The trial court concluded that this testimony, when viewed in

the light most favorable to the Commonwealth, was sufficient to prove that

Hines aided or attempted to aid the group in the commission of the crime.

T.C.O. at 4-5.

        Mr. Tounkara testified that, as he walked along Golf Road, he saw a

group of men and one woman sitting on the step outside one of the houses.

Notes of Testimony (“N.T.”), 12/17/2013, at 17. As he passed the group,

Mr. Tounkara heard someone speak to him.              He turned to see who was

speaking and the group of people surrounded him. Id. at 18. Mr. Tounkara

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testified that the woman punched him in the face and he fell to the ground.

Then, the members of the group started kicking him. Mr. Tounkara’s right

hand was permanently injured.           Id. at 19-20.   The group took his laptop

computer and cell phone.          Id. at 20-21.    Mr. Tounkara’s wallet was also

missing. Id. at 22.

       From a photo array, Mr. Tounkara identified Hines as one of the group.

Id. at 32. Mr. Tounkara admitted that he did not see Hines hit or kick him,

but maintained that Hines was part of the group that surrounded him. Id.

at 33.    Detective Raymond Blohm testified that he showed Mr. Tounkara

approximately ten photo arrays during the course of the investigation. Mr.

Tounkara made two identifications on two different arrays: Hines and a

juvenile.3 Id. at 48.

       Ms. Hines testified that she saw her brother on the morning of the

incident. That evening, she went out to smoke and saw a group of people

next door, but did not see her brother with them.             Id. at 69.   Ms. Hines

testified that her brother returned to the house around midnight. Id. at 73.

       Ms. Hines confirmed that she heard a commotion outside her house

around 10:30 p.m. and she saw a group of eight to ten people, mostly men,

on the sidewalk outside 16 Golf Road.            Id. at 87.   When Hines returned



____________________________________________


3
     A third person was arrested after it was determined that the person
had Mr. Tounkara’s cell phone. Id. at 51-52.



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home, he told Ms. Hines that a neighbor told him that a man’s laptop and

cell phone had been stolen that night after a fight. Id. at 88-90.

      Viewing the evidence in the light most favorable to the Commonwealth

as we must, the evidence established that Hines was part of the group that

surrounded, assaulted, and robbed Mr. Tounkara. While Mr. Tounkara could

not state with certainty that Hines personally struck or robbed him, Hines

was part of the group that, acting in concert, surrounded Mr. Tounkara,

which aided and assisted the assault and theft.         The group’s collective

actions allowed the crimes to occur.    Hines was identified as part of this

group. Consequently, the fact-finder had ample basis to conclude that Hines

was more than merely present.       Further, Ms. Hines’ testimony provided

circumstantial evidence that Hines was present around the time of the crime.

Taken together, the evidence was sufficient to establish his liability as an

accomplice.

      In his second issue, Hines argues that Mr. Tounkara’s identification

was not credible based upon Mr. Tounkara’s limited ability to observe the

group members and Detective Blohm’s flawed presentation of the photo

array. Hines’ Brief at 11-12. This issue is waived. Hines did not include the

identification as one of the issues that he raised in his concise statement.

Failure to include an issue in the concise statement results in waiver. See

Pa.R.A.P. 1925(b)(4)(vii); Commonwealth v. Salamone, 897 A.2d 1209,

1217 (Pa.     Super. 2006) (“Failure to raise an issue in a court-ordered

1925(b) statement results in waiver of that issue.”).

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       To the extent that Hines intended the challenge to the identification to

be a challenge to the weight of the evidence, Hines also failed to preserve

the issue. While it was in his concise statement, a weight of the evidence

challenge must be preserved through a post-sentence motion.                See

Commonwealth v. Lofton, 57 A.3d 1270, 1273 (Pa. Super. 2012) (“[A]

weight of the evidence claim must be preserved either in a post-sentence

motion, by a written motion before sentencing, or orally prior to sentencing.”

(citing Pa.R.Crim.P. 607)).          Hines did not file a written post-sentence

motion.4     Our review of the sentencing transcript indicates that Hines did

not make an oral motion at that time. Therefore, Hines has not preserved

any challenge to the weight of the evidence and the issue is waived.

       Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/17/2015


____________________________________________


4
      While Hines was ordered to file a sentencing memorandum with a
recommendation as to an appropriate penalty, N.T., 12/17/2013, at 127, the
memorandum is not part of the certified record. Further, from the trial
court’s description, the memorandum only suggested a sentence and listed a
potential witness. N.T., 1/30/2014, at 9.



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