J-S44019-16


NON -PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA,                   1   IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                            Appellee

                       v.

DUNG THACH,

                            Appellant                    No. 3024 EDA 2014


              Appeal from the Judgment of Sentence August 7, 2014
               In the Court of Common Pleas of Philadelphia County
                 Criminal Division at No: CP- 51 -CR- 0004528 -2013

BEFORE:      FORD ELLIOTT, P.J.E., STABILE, and MUSMANNO, JJ.

MEMORANDUM BY STABILE, J.:                          FILED NOVEMBER 08, 2016

         Appellant, Dung Thach, appeals from the August 7, 2014 judgment of

sentence entered in the Court of Common Pleas of Philadelphia County ( "trial

court ") following his convictions of aggravated assault, criminal conspiracy,

terroristic threats, simple assault, and recklessly endangering another

person ( "REAP ").1 Appellant challenges the sufficiency of the evidence. Upon

review, we affirm.

         The trial court summarized the facts as follows:

                     This case involved an incident that occurred on the
                night of January 20, 2013, at a residence located at 4261
                A Street in Philadelphia.     The victim, Thuong Damh
                [ "Damh "], a 60 year old man, testified at trial that he was
                brought to 4621 A Street at 3 o'clock in the afternoon to
                attend a social gathering. []Damh was picked up at his


1   18    Pa.C.S.A.   §§    2702(a)(1), 903,    2706,   2701(a)(1),    and      2705,
respectively.
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              home on the 4900 block of Old York Road in Philadelphia
              in a car by Thuong Thach [ "Thuong "], the son of his friend
              Khuol Thach [ "Khuol "], and Thuong's girlfriend. A man
              named Savan also got into the car at the time to be
              driven to 4621 A Street.
                  Upon arriving at 4621 A Street, []Damh identified
            four others in attendance at the party; Thai, Ut, and the
            Appellant. []Damh was at 4621 A Street for about nine
            hours until around midnight when the incident occurred.
            At midnight, []Damh was sitting on a chair in the living
            room of the residence. Thai was sitting on a couch to
            []Damh's right.     The Appellant was standing behind
            []Damh. Thuong was standing in front of []Damh. At
            that time, Thuong began to threaten []Damh, asking him
            why he did not allow Thuong to visit his house the
            previous week, and that he would kill []Damh if he did not
            tell him. When Thuong threatened him, []Damh stood up
            from the chair where he was sitting, at which time Thai
            kicked him in the ribs and stood up and punched him in
            the left eye. []Damh was then hit in the back of the head
            by the Appellant which fractured his skull. After the blow
            to his head, []Damh fell to the ground, at which point,
            Thai, Thuong, and the Appellant continued to hit and kick
            him, after which, []Damh passed out.         After []Damh
            regained consciousness, Savan assisted him in getting
            home. When []Damh arrived at his home, his injuries
            were extensive.      He was completely numb, he was
            bleeding from the head and eyes, and his mouth was
            swollen. []Damh believed that he would die that night.
            His wife called an ambulance to take him to the hospital.
            Upon arriving at the hospital, []Damh had surgery on his
            head and was placed into an unconscious state for a
            week. Police detectives arrived at the hospital and spoke
            with Mrs. Damh, at which point she told them everything
            that she knew as well as the fact that [Damh] had left the
            house wearing a knit cap but returned without it. After
            speaking with Mrs. Damh, Detective Hughes obtained a
            warrant to search the house where the incident occurred.
            At that time, Detective Hughes recovered a knit cap with
            []Damh's name written in it in the back of the refrigerator
            of the house.

Trial Court Opinion, 8/26/2015, at 2 -3 (internal citations omitted).

The trial court summarized the procedural history as follows:

                  On January 29, 2013, police arrested Appellant,[] for
           Attempted     Murder,   Aggravated      Assault,   Criminal
           Conspiracy, Terroristic Threats, Simple Assault, and
           [REAP]. On July 10, 2014, Appellant waived his right to a
           jury trial and proceeded to a bench trial before th[e trial

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               c]ourt. On that date, the [trial c]ourt found Appellant
               guilty of [a]ggravated         [a]ssault (F -1), [c]riminal
               [c]onspiracy (F -1), [t]erroristic [t]hreats (M -1), [s]imple
               Assault (M -2), and [REAP] (M -2).
                     On August 7, 2014, the [trial c]ourt sentenced
               Appellant to four to eight years of incarceration on the
               charge of [a]ggravated [a]ssault and two to four years of
               incarceration on the charge of [c]riminal [c]onspiracy to
               run consecutively for a cumulative sentence of six to
               twelve years of incarceration.      The [s]imple [a]ssault
               charge merged with [a]ggravated [a]ssault and the
               Appellant was sentenced to no further penalties on the
               charges of [t]erroristic [t]hreats and [REAP]. On August
               13, 2014, Appellant filed [p]ost -[s]entence [m]otions
               which were denied by the [trial court] without a hearing on
               August 20, 2014.
                     Appellant filed this timely appeal on August 29,
               2014. On November 4, 2014, the [trial court] ordered
               Appellant to file a Pa.R.A.P. 1925(b) [s]tatement of
               [e]rrors [c]omplained of on [a]ppeal within 21 days.
               Appellant filed a Pa.R.A.P. 1925(b) [s]tatement of [e]rrors
               [c]omplained of on [a]ppeal on November 24, 2014 with a
               request to file a [s]upplement[al] 1925(b) [s]tatement
               when all the [n]otes of [t]estimony became available. All
               the [n]otes of [t]estimony became available in April 2015
               and Appellant did not file a [s]upplemental 1925(b)
               [s]tatement.

Id. at 1-2.
      Appellant raises    a   sole issue on review.

               Was not the evidence insufficient to support the conviction
               of [a]ggravated [a]ssault, [c]riminal [c]onspiracy, [s]imple
               [a]ssault, [t]erroristic [t]hreats and [REAP] where the
               complainant failed to see the punch that Appellant
               allegedly thr[e]w or any act of conspiracy between
               Appellant and assailants?

Appellant's Brief at 3.

      This Court's standard of review for sufficiency of the evidence is well

established.

      As a general matter, our standard of review of sufficiency claims
      requires that we evaluate the record in the light most favorable
      to the verdict winner giving the prosecution the benefit of all
      reasonable inferences to be drawn from the evidence. Evidence

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J-S44019-16


     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.
     Nevertheless, the Commonwealth need not establish guilt to a
     mathematical certainty.      [T]he facts and       circumstances
     established by the Commonwealth need not be absolutely
     incompatible with the defendant's innocence. Any doubt about
     the defendant's guilt is to be resolved by the fact finder unless
     the evidence is so weak and inconclusive that, as a matter of
     law, no probability of fact can be drawn from the combined
     circumstances.

Commonwealth v. Mauz, 122 A.3d 1039, 1040 -41                   (Pa. Super. 2015)

(quoting Commonwealth v. Rahman, 75 A.3d 497, 500 -501 (Pa. Super.

2013)).   However, in order to address       a   challenge to the sufficiency of the

evidence, it must be preserved for appeal. See Commonwealth v. Tyack,

128 A.3d 254, 260 (Pa. Super. 2015).

              If [a]ppellant wants to preserve a claim that the evidence
              was insufficient, then the 1925(b) statement needs to
              specify the element or elements upon which the evidence
              was insufficient. This Court can then analyze the elements
              or elements on appeal. [Where a] 1925(b) statement []
              does not specify the allegedly unproven elements[,]        .   .   .

              the sufficiency issue is waived [on appeal].

Id. (quoting Commonwealth          v.   Williams, 959 A.2d 1252, 1257                (Pa.

Super. 2008) (quoting Commonwealth v. Flores, 921 A.2d 517, 522 -523

(Pa. Super.   2007))).

      In the matter sub judice, Appellant's 1925(b) statement failed to

specify the element or elements upon which the evidence was insufficient.

Appellant's statement asserts the following boilerplate language

              [t]he trial court erred when it found that the evidence was
              sufficient to support the conviction of [a]ggravated
              [a]ssault, [c]riminal [c]onspiracy, [t]erroristic [t]hreats,
              [s]imple [a]ssault, [REAP]. The evidence failed to establish
              that [Appellant] was guilty beyond a reasonable doubt of
              any of the above stated charges.


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J-S44019-16



Rule 1925(b) Statement, 11/24/2014,          at   ¶   3(a).   Appellant's failure to

specify the element or elements upon which evidence was insufficient

extends to each individual offense he challenges on appeal.          In his concise

statement, Appellant requested the ability to amend his concise statement

upon the receipt of the notes of testimony;             however, Appellant never

attempted to amend his statement upon his receipt of the notes of

testimony.     Accordingly, we conclude Appellant did not preserve his claims

adequately for appellate review and are waived.           See Tyack, 128 A.3d at

260.

       Nonetheless, despite Appellant's failure to specify the elements of each

crime that he believes the evidence was insufficient to support, our review of

Appellant's brief indicates that his challenge to the sufficiency of all offenses

is based     upon his single contention that the Commonwealth did not prove

beyond   a   reasonable doubt that he struck the victim in the back of the head.

Appellant contends the victim conceded he was unable to see the punch that

struck him in the back of the head, but was certain that Appellant was the

individual that struck him. To the extent this argument may address some

element in each of the crimes for which Appellant was convicted, we find

that Appellant's claim lacks merit.
       As noted by the trial court, the evidence established         that Appellant
was standing behind the victim when the victim was struck on the back of

his head causing a skull fracture.    If Appellant was the only person standing
behind the victim when he was struck from behind, especially given the

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J-S44019-16



circumstances under which this attack occurred,    a   reasonable inference can

be   drawn that it was Appellant who struck the victim from behind.

Appellant's actions immediately thereafter, namely, joining his cohorts in

hitting and kicking the victim after he fell to ground, corroborate the victim's

identification of Appellant as the perpetrator of the skull fracture. Viewing

the evidence in the light most favorable to the prosecution as verdict winner

and giving the prosecution the benefit of all reasonable inferences to be

drawn from the evidence, we conclude, to the extent we may address

Appellant's claim that the evidence was insufficient to prove that he struck

the victim from behind, to have no merit.

      Judgment of sentence affirmed.

Judgment Entered.




J:seph    Seletyn,
         D.
Prothonotary


Date: 11/8/2016




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