J-A27035-10


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                       IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                            Appellee

                       v.

TERRY DAVID KLINE, JR.,

                            Appellant                    No. 148 MDA 2009


     Appeal from the Judgment of Sentence Entered December 19, 2008
               In the Court of Common Pleas of Berks County
            Criminal Division at No(s): CP-06-CR-0005241-2007


BEFORE: BENDER, J., GANTMAN, J., and FREEDBERG, J.*

MEMORANDUM BY BENDER, P.J.:                            FILED AUGUST 08, 2014


       Terry David Kline, Jr., appeals from the judgment of sentence of



conspiracy to commit third degree murder, aggravated assault, and

conspiracy to commit aggravated assault. We affirm.



are that on the night of September 6, 2007, five men including Appellant,

his brother, Kenneth Kline (he



                                               -fourth birthday. Houser drove the
____________________________________________


*
 Judge Freedberg did not participate in the consideration or decision of this
case.
J-A27035-10


five men in his vehicle and the group arrived at the bar between midnight

and 12:30 a.m. on the morning of September 7, 2007. After the bar closed



car.   A witness, who was also standing outside of the bar, claimed that

Appellant, Kenneth, a

Appellant wanted to fight someone just for the sake of fighting. N.T. Trial,

11/3-7/08, at 167. The witness also stated that Appellant was out of control

and argued with another individual in the vicinity of the group.     Houser

interceded, however, and at his urging, Appellant, Kenneth, Gearhart, and



       Once underway, however, Appellant began accusing Houser of

                                                      Id. at 326. Appellant



out of the car to fight him. Houser was able to calm Appellant down and

convince him to get back into the vehicle.

       As the group resumed their journey home, they came upon three

individuals standing on the sidewalk speaking to one another.      Gearhart

suggested that if they wanted to start a fight, they should provoke one of

these three people. Appellant, Kenneth, and Gearhart told Houser to stop,

at which p

                                                       Id. at 331. Houser

and Weber drove around the corner and parked near the intersection of Main


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and Noble Streets. Meanwhile, Appellant, Kenneth, and Gearhart began to

aggressively accuse the three individuals of making derogatory statements

to them.    One of the individuals claimed that the men were yelling and

getting close enough to make her feel threatened. When a police car drove

down a n                                              id. at 218,   Appellant,



on Main Street.

      When the three men reached Main Street, they encountered another

bystander, Kyle Quinn.     Quinn, who was walking to his dormitory, was

talking on his cell phone when he was confronted by Kenneth.          Kenneth

asked Quinn to whom he was speaking, and when Quinn responded that he



it into the street. Appellant, Gearhart, and Kenneth surrounded Quinn and

began yelling at him. Eventually, Appellant threw a punch at Quinn. In the

midst of the fight, Gearhart picked up a table leg, which he found in the

vicinity, and swung it with great force, striking Quinn on the left side of his



head tore the artery at the base of his brain, which caused massive bleeding

resulting in his death.

      After Quinn fell to the ground, Ken




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When Appellant finally returned to the car, he and his two cohorts

encouraged Houser to drive away. However, before they could flee, Police

Officer Corporal Paul Clery of the Kutztown Borough Police Department



additional police officers arrived at the scene and each of the five men were

taken into custody.

     Both Appellant and Kenneth subsequently gave statements to police

on September 7, 2007, and again on September 10, 2007. While the men

initially denied any involvement in the attack on Quinn, Appellant eventually

admitted that Kenneth approached Quinn and exchanged words, after which



confessed that he began arguing with Quinn, and that he saw Gearhart pick

up an object and hit Quinn with it. He stated that Quinn fell to the ground



police that he began arguing with Quinn in order to protect his brother, but

acknowledged that Quinn did not strike at any of the three men.

     Appellant, Kenneth, and Gearhart were all charged with various



subsequently entered a guilty plea to third-degree murder and conspiracy to

commit aggravated assault. He was sentenced to an aggregate term of 20



Kenneth proceeded to trial as co-defendants, both charged with third-degree


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murder, conspiracy to commit third-degree murder, aggravated assault, and

conspiracy to commit aggravated assault.           While the jury ultimately

acquitted both Appellant and Kenneth of third-degree murder, it returned

guilty verdicts on the remaining charges.         Appellant was subsequently

                                    prisonment for the conspiracy to commit

third-

probation for the crime of aggravated assault. The offense of conspiracy to

commit aggravated assault was deemed to merge for sentencing purposes.

         Appellant filed a timely notice of appeal, as well as a timely concise

statement of matters complained of on appeal pursuant to Pa.R.A.P.

1925(b). Herein, he raises the following two issues for our review:

         A. The evidence was insufficient as a matter of law and against
            the weight of the evidence to convict [] Appellant of
            [conspiracy to commit] third[-]degree murder, aggravated
            assault and conspiracy [to commit aggravated assault] where
            there was no evidence presented that [] Appellant had the
            intent
            accomplice liability.

         B. The sentence was excessive and an abuse of discretion based
            on the sentencing guidelines and the social history that was
            presented to the court. The sentence also violated the State
            and Federal Constitutions in that it constitutes cruel and
            unusual punishment.



         Our Court filed an initial memorandum decision in this case on

February 10, 2011. Therein, we concluded that the offense of conspiracy to

commit third degree murder was a legal nullity. Commonwealth v. Kline,


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148 MDA 2009, unpublished memorandum at 6-8 (Pa. Super. filed February

10, 2011).1

prior decision in Commonwealth v. Clinger, 833 A.2d 792 (Pa. Super.

                                                                           is

neither intentional nor committed in the course of a

                                         Clinger in Commonwealth v. Weimer,

977 A.2d 1103, 1105 (Pa. 2009) (stating, in a parenthetical accompanying a

citation to Clinger, that Clinger

is impossible for one to intend to commit an unintentional act, it is

impossible to commit [the] crime of conspiracy to commit third degree



       Because we concluded in our initial memorandum decision that there

was no such offense as conspiracy to commit third degree murder, we




sentencing issue. We did, however, assess the merits of his challenge to the
____________________________________________


1
  We acknowledged that Appellant did not challenge his conviction for
conspiracy to commit third degree murder on this basis. However, we
reasoned that we were required to raise this issue sua sponte, as it impacted

impose a sentence for that offense. Id. at 6 n.2 (citing Commonweatlh v.
Kozrad, 499 A.2d 1096, 1097-
[C]ourt to correct an illegal sentence sua sponte    Commonwealth v.
Boerner, 422 A.2d 582, 588 n.11 (Pa. Super. 1980) (finding that where it is
beyond the power of the court to impose a sentence, an issue regarding the




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sufficiency and weight of the evidence to support his convictions for

aggravated assault and conspiracy to commit aggravated assault.             We



                                                         against the weight of

the evidence. See Kline, 148 MDA 2009, at 8-13.

        On October 30, 2013, our Supreme Court issued Commonwealth v.

Fisher, 80 A.3d 1186 (Pa. 2013), which abrogated Clinger and held that

conspiracy to commit third degree murder is a cognizable offense.       Id. at

1195.     On March 5, 2014, our Supreme Court issued a per curiam order

granting allowance of appeal in this case and vacating our decision pursuant

to Fisher.      The Court remanded this matter to our Court for further

proceedings.

        Now,

that the evidence was insufficient to support his convictions for conspiracy to

commit third degree murder, aggravated assault, and conspiracy to commit

aggravated assault; that all three of these convictions were contrary to the

weight of the evidence; and that the court abused its discretion in fashioning

his sentence.



evidence to sustain his convictions.

        The standard we apply in reviewing the sufficiency of the
        evidence is whether viewing all 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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J-A27035-10


      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
                                                      -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 the witnesses
      and the weight of the evidence produced, is free to believe all,
      part or none of the evidence.

Commonwealth v. Troy, 832 A.2d 1089, 1092                (Pa. Super. 2003)

(citations omitted).

      Here, Appellant maintains that the evidence was insufficient to prove

he conspired with Kenneth and Gearhart to attack Quinn. Instead, he claims

that he was merely present during the assault, which was demonstrated by

the evidence that he did not physically touch Quinn.          Appellant also

                                                       sic] intended to harm



insufficient to support his convictions.

                                                     al conspiracy is defined

by our Crimes Code as follows:

      (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 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. § 903(a).     Our Court has also summarized the elements of

criminal conspiracy as follows:

      To sustain a conviction for criminal conspiracy, the
      Commonwealth must establish that 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. This
      overt act need not be committed by the defendant; it need only
      be committed by a co-conspirator.

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

and quotation marks omitted).

                                  ecific conviction for conspiracy to commit

aggravated assault, this Court has stated that to sustain such a conviction,



commission of aggravated assault, an agreement with a co-conspirator, and

                                                        Commonwealth v.

Thomas, 65 A.3d 939, 945 (Pa. Super. 2013). Moreover, for the offense of

conspiracy to commit third degree murder, our Supreme Court has clarified:

      If a defendant acts with his co-conspirators in brutally attacking
      the victim with the intention of killing him, he conspires to
      commit first degree murder; if the defendant performs the same
      action but does not care whether the victim dies or not, he
      conspires to commit third degree murder. In the latter example,

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J-A27035-10



      rather, he intended to aid a malicious act resulting in a killing.
      Malice is not the absence of any intent, just the specific intent to
                                         ends the underlying act (the
      beating) which results in death, the evidence supports the
      charge of conspiracy to commit third degree murder.

Fisher, 80 A.3d at 1195 (emphasis in original).

      In this case, it is clear from the factual summary, stated supra, that

the evidence was sufficient to enable the jury to find, beyond a reasonable

doubt, that Appellant conspired with Gearhart and Kenneth to commit the

aggravated assault and third degree murder of Quinn.         Namely, witnesses

testified that after Appellant left the bar, he was looking for a fight and tried

to engage several people in altercations, including his companion, Houser.

When Appellant and his cohorts came upon Quinn, they encircled him and

Appellant threw the first punch. Appellant admitted that during the course

of the fight, he saw Gearhart pick up an object and hit Quinn hard from

behind.   After Quinn fell to the sidewalk, Appellant stood over his body



and directed him to leave the scene, admittedly in an attempt to run from

the police.

      This evidence proved that Kenneth, Gearhart, and Appellant conspired

to viciously attack Quinn, with the intent of causing him serious bodily

injury, and without regard for whether Quinn lived or died. Therefore, the

evidence was sufficient to convict Appellant of the crimes of conspiracy to

commit aggravated assault and conspiracy to commit third degree murder.

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J-A27035-10


Consequently, Appellant is also criminally liable for the aggravated assault

committed by Gearhart. See Commonwealth v. Lambert, 795 A.2d 1010,



committing the underlying crime, he is still criminally liable for the actions of

his co-conspirators ta

omitted).

      Appellant next contends that his convictions are contrary to the weight

of the evidence, and simply reiterates the arguments proffered in support of

his challenge to the sufficiency of the evidence.

      A claim alleging the verdict was against the weight of the
      evidence is addressed to the discretion of the trial court.
      Accordingly, an appellate court reviews the exercise of the trial
      court's discretion; it does not answer for itself whether the
      verdict was against the weight of the evidence. It is well settled
      that the jury is free to believe all, part, or none of the evidence
      and to determine the credibility of the witnesses, and a new trial
      based on a weight of the evidence claim is only warranted where
      the jury's verdict is so contrary to the evidence that it shocks
      one's sense of justice. In determining whether this standard has
      been met, appellate review is limited to whether the trial judge's
      discretion was properly exercised, and relief will only be granted
      where the facts and inferences of record disclose a palpable
      abuse of discretion.

Commonwealth v. Houser, 18 A.3d 1128, 1135-1136 (Pa. 2011) (citations

and internal quotation marks omitted).




the trial court stated:

      For the reasons set forth in the previous section [addressing

      clear that the verdict is in no way contrary to the evidence.

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      Clearly, the verdict of the jury in this case could not shock
      anyo


Trial Court Opinion (TCO), 6/30/09, at 18. Based on our discussion of the



convictions, we ascertain no abuse of discretion



meritless.

      Finally, Appellant alleges that the trial court abused its discretion in

                                                           he Honorable Paul M.

Yatron of the Court of Common Pleas of Berks County thoroughly addressed




portion of the record where he expressed his rationale for the sentence

imposed. See TCO at 18-21 (citing N.T. Sentencing Hearing, 12/19/08, at

74-80).      After thoroughly reviewing the briefs of the parties, the applicable

case law, and the sentencing transcript, we are satisfied th




          s discretion.

      Judgment of sentence affirmed.




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J-A27035-10


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/8/2014




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