J-S29044-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    KALENA TABB                                :
                                               :
                       Appellant               :   No. 2005 EDA 2017

              Appeal from the Judgment of Sentence May 19, 2017
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                        No(s): CP-51-CR-0008045-2016


BEFORE: PANELLA, P.J., NICHOLS, J., and PELLEGRINI, J.*

MEMORANDUM BY PELLEGRINI, J.:                             FILED JULY 17, 2020

        Kalena Tabb (Tabb) appeals from the judgment of sentence imposed by

the Court of Common Pleas of Philadelphia County (trial court) after finding

her guilty of simple assault and possessing an instrument of crime. We affirm

the convictions but amend the sentence imposed for simple assault.

        On June 10, 2016, Marvin Carter drove to his daughter’s school to pick

her up as part of a child custody arrangement. At the time, Carter shared

custody with the child’s mother, Tabb.         When the child did not come out,

Carter called Tabb to see why the child was not outside to be picked-up. Tabb

told him that the child was with her and that she would bring her to him.




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*   Retired Senior Judge assigned to the Superior Court.
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       As found by the trial court, when Tabb and daughter arrived, Carter was

sitting in his truck. Tabb walked up to the truck’s front window and punched

Carter in the face. As he tried to block her, Tabb hit him twice more in the

back of his head with, according to Carter, either a cell phone or “a big, shiny

thing.” When she walked away, Carter got out of his truck. Tabb quickly

turned around and smashed his leg with the truck door. Carter tried to grab

his daughter but Tabb hit him twice more, knocking him to the ground. The

police soon arrived and called an ambulance to take Carter to a hospital for

treatment. Tabb was charged by criminal information with simple assault,

harassment and possessing an instrument of crime.1

       At her May 19, 2017 bench trial, Tabb gave a drastically different version

of what happened. According to her, Carter got out of his truck and started

yelling, getting in her face and pointing at her. Carter then tried to slap her

but she blocked it and hit him back in self-defense. Tabb testified that she

was afraid Carter would try to hit her again because he had previously

attacked her. Tabb also admitted the stipulated testimony of a coworker that

she has a reputation for peacefulness and truthfulness.




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1 18 Pa.C.S. §§ 2701(a), 2709(a)(1) and 907(a). Though Carter is an adult,
the Commonwealth mistakenly graded simple assault as a first-degree
misdemeanor, which applies only when the offense is committed “against a
child under 12 years of age [.]” 18 Pa.C.S. § 2701(b)(2). We address this
error at the end of our decision.

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       The court found her guilty of simple assault and possessing an

instrument of crime and sentenced her to concurrent terms of three years’

probation for each offense. Tabb timely appealed and now raises sufficiency

claims against both of her convictions, as well as an illegal sentence claim for

simple assault.

       We first address Tabb’s challenge to the sufficiency of evidence for

simple assault.2 Under Section 2701 of the Crimes Code, a person is guilty of

simple assault if he “attempts to cause or intentionally, knowingly or recklessly

causes bodily injury to another[.]” 18 Pa.C.S. § 2701(a)(1). “Bodily injury”

is the “[i]mpairment of physical condition or substantial pain.” 18 Pa.C.S.

§ 2301. In arguing that the evidence was insufficient for simple assault, Tabb

principally relies on her own testimony and asserts that she was justified in

using force against Carter. She also highlights that she presented evidence

of her reputation for peacefulness and truthfulness, and contrasts this with




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2  “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.”
Commonwealth v. Bradley, 69 A.3d 253, 255 (Pa. Super. 2013). “If the
Commonwealth has presented some evidence of each element of the crime,
we deem the evidence sufficient unless it is so weak and inconclusive that as
a matter of law no probability of fact may be drawn from the combined
circumstances.” Id.




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Carter, whom she characterizes as a domestic abuser with a prior conviction

for aggravated assault.3

       Tabb’s argument goes more to the weight of the evidence than its

sufficiency. Under our standard, we view all of the evidence in the light most

favorable to the verdict winner, which, in this case, was the Commonwealth.

Here, Carter and Tabb gave very different accounts of what happened.

According to Carter’s version, Tabb was the aggressor, punching him in the

face first, hitting him in the head with an object, crushing his leg in the truck

door, and then hitting and knocking him to the ground, where he remained

until the police arrived. In contrast, Tabb portrayed Carter as the aggressor,

forcing her to protect herself when he tried to slap her. Tabb, however, is

asking us to ignore that after hearing both versions, the trial court simply

credited Carter’s version over her version. Additionally, the Commonwealth

presented photographs of Carter’s injuries that were taken soon after the

incident, including a mark on his leg caused by Tabb slamming a truck door

on it. Viewed in the light most favorable to the Commonwealth, there was

sufficient evidence to convict her for simple assault.

       Next, to convict a person for possessing an instrument of crime under

18 Pa.C.S. § 907(a), “the Commonwealth has the burden of proving two

elements: (1) possession of an object that is an instrument of crime and (2)


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3Carter testified that his conviction was in 1990 and did not involve domestic
abuse. N.T., 5/19/17, at 23-24.

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intent to use the object for a criminal purpose.” In re A.V., 48 A.3d 1251,

1253 (Pa. Super. 2012).     The statute defines an instrument of crime, in

relevant part, as “[a]nything used for criminal purposes and possessed by the

actor under circumstances not manifestly appropriate for lawful uses it may

have.” 18 Pa.C.S. § 907(d)(2).

      Tabb argues that no weapon or object that could be used criminally was

ever recovered or credibly observed, focusing on Carter’s vague description

that Tabb was holding a cell phone and “a big, shiny thing.” Tabb asserts that

there was insufficient evidence that she possessed these items with any intent

to use them criminally, basically arguing that—at most—she hit Carter while

she had an item in her hand. In her view, this negates the mens rea necessary

to convict for possessing an instrument of crime.

      Viewing the evidence in the light most favorable to the Commonwealth

as the verdict winner, we find there was sufficient evidence to convict for

possessing an instrument of crime. At trial, Carter testified that Tabb walked

up to his truck and punched him first through the open front window. N.T.,

5/19/17, at 10. Because she was hitting him, Carter put his hands over the

left side of his face to block her from punching him through the driver’s side

front window. Id. at 10-11. The following exchange then occurred:

      [Carter]: I’m blocking her to keep her from hitting me. I said
      stop, stop. So the back window was down. So all I know I felt
      something hit me in the back of my head through the
      window. And I’m trying to get this window up with the other
      hand. And I couldn’t get the back window at the time, so she hit
      me two times in the back of my head.

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      [Commonwealth]: Do you know did she have something in her
      hand?

      [Carter]: She had a phone and a big, shiny thing.

Id. at 11 (emphasis added).

      Based on this testimony, the trial court could infer that when Tabb was

unable to hit Carter anymore through the front window, she then reached

through the back window and used one of the objects in her hand to hit Carter

in the back of the head. Significantly, his testimony was not that he felt her

closed fist or hand hit him in the back of the head; instead, he testified that

he felt “something” hit him. From these facts, the trial court could infer that

Tabb used the object in her hand to extend her reach through the back window

and, as the Commonwealth suggests, increase the force of the blows.

      Tabb cites Commonwealth v. Jackson, No. 811 EDA 2017 (Pa. Super.

2018) (unpublished memorandum), where we reversed a conviction for

possessing an instrument conviction where the defendant rolled up a hat and

held it by his side while he threatened the victim.     We held that this was

insufficient because the defendant did not do anything with the hat to simulate

or give the impression that it was a gun. Id. at *10. However, this case

differs in that Tabb actually used the object to actually hit Carter rather than

threaten him. In such instances, we have found such evidence of employing

the object for an assault to be sufficient.   See, e.g., Commonwealth v.

Tukhi, 149 A.3d 881, 888 (Pa. Super. 2016) (defendant used iron pipe to

strike the victim’s arm); see also Commonwealth v. Brunson, 938 A.2d

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1057, 1062 (Pa. Super. 2007) (defendant threw a plastic bottle at the victim).

In these cases—as in this one—an otherwise innocuous object was used in an

assault, thus meeting the plain language of § 907(a) that the object is

possessed “with intent to employ it criminally.” As a result, based on the

testimony of Carter which the trial court found credible, the Commonwealth

presented sufficient evidence to convict Tabb for possessing an instrument of

crime.

      Finally, the trial court and the Commonwealth agree that it imposed an

illegal sentence for simple assault. The Commonwealth graded the offense in

the information as a first-degree misdemeanor, which is only applicable when

simple assault is committed “against a child under 12 years of age by a person

18 years of age or older.” 18 Pa.C.S. § 2701(b)(2). Neither Tabb nor the

Commonwealth corrected this at sentencing, and the trial court went on to

sentence her to three years’ probation and entered the conviction in its

sentencing order as a first-degree misdemeanor. Because Carter and Tabb

are both adults, the offense should have been graded as a second-degree

misdemeanor with a statutory maximum of two years’ imprisonment.           18

Pa.C.S. § 1104(2).

      “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). “[I]f we determine that a correction by this


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[C]ourt may upset the sentencing scheme envisioned by the [sentencing]

court, the better practice is to remand.” Id. (citation and quotation marks

omitted). However, if our disposition does not alter the overall sentencing

scheme,   then   there    is   no   need   for   a   remand   for   resentencing.

Commonwealth v. Thur, 906 A.2d 552, 569 (Pa. Super. 2006).

      Because her sentences were concurrent, we do not need to remand for

resentencing. However, because the grading of her simple assault is incorrect,

we must amend the grading of her conviction to a second-degree

misdemeanor and amend the sentence imposed to the statutory maximum

concurrent term of two years’ probation, consistent with 18 Pa.C.S. § 1104(2).

      Accordingly, we amend the conviction at count one (simple assault) to

the grade of second-degree misdemeanor, and amend the trial court’s

sentence of three years’ probation to two years’ probation, concurrent to the

sentence imposed to count three (possessing an instrument of crime).

Judgment of sentence affirmed in all other respects.

      Convictions affirmed.     Judgment of sentence amended in part and

affirmed in part. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/17/20

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