Com. v. Kline, T., Jr.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

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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 thirdprobation 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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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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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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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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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 8/8/2014

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