Com. v. Samneang, S.

J-A30012-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

SAMNEANG SAMNEANG

Appellant No. 1824 EDA 2013

Appeal from the Judgment of Sentence June 13, 2013 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0001092-2012

BEFORE: LAZARUS, J., MUNDY, J., and PLATT, J.* MEMORANDUM BY LAZARUS, J.: FILED JANUARY 30, 2015

Samneang Samneang1 appeals from the judgment of sentence entered in the Court of Common Pleas of Philadelphia County. After our review, we affirm in part, and vacate and remand in part, and we rely upon the opinion authored by the Honorable Charles J. Cunningham, III.

On November 1, 2011, Samneang and his co-defendant, Kanika Oum,2 shot a fifteen-year old boy in the face near the intersection of 75th Street and Buist Avenue in Southwest Philadelphia. Following trial, a jury convicted ____________________________________________

* Retired Senior Judge assigned to the Superior Court. 1 Appellant’s name is Samneang Sin, however he was charged and tried as Samneang Samneang. See N.T. Trial, 2/27/13, at 49-50. 2 Co-defendant Oum’s related appeal is docketed at 1939 EDA 2013.

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Samneang of attempted murder,3 criminal conspiracy,4 aggravated assault,5 violation of the Uniform Firearms Act (VUFA),6 and possession of an instrument of crime (PIC).7

The court sentenced Samneang to a term of imprisonment of 15-30 years for attempted murder, a consecutive term of 5-10 years on the conspiracy conviction, and a consecutive term of 2-5 years on the VUFA conviction, for an aggregate term of 22-45 years’ imprisonment. The court imposed no further penalty on the PIC conviction. The court also determined the aggravated assault conviction merged for sentencing purposes.

Samneang filed a timely appeal to this Court. On June 21, 2013, the trial court ordered Samneang to file a Pa.R.A.P. 1925(b) Statement of Errors Complained of on Appeal. In his Rule 1925(b) statement, Samneang raised nine issues, five of which he has carried forward for our review:

1. The trial court through words, deeds and rulings compromised appellant’s ability to win the trial by nullifying the effectiveness of essential points being made by the defense such that he did not receive a fair trial;

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3 18 Pa.C.S. §§ 901(a), 2502(a). 4 18 Pa.C.S. §§ 903(a), 2502(a). 5 18 Pa.C.S. § 2702(a). 6 18 Pa.C.S. § 6106. 7 18 Pa.C.S. § 907(a).

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2. The trial court erred in not allowing the defense to ask about the other two identification witnesses who were unable to identify appellant and by preventing defense counsel from questioning and attacking the identification procedure;

3. The trial court erred in allowing the hearsay testimony regarding what others said that Seagull Mok said;

4. It was constitutional error for the Commonwealth to assert that the defense should call witnesses to rebut the Commonwealth case;

5. The trial court erred in sentencing appellant for two inchoate crimes, i.e., attempted murder and conspiracy to commit attempted murder.

Appellant’s Brief, at 14.

Upon review of the parties’ briefs, the relevant law, and the record as a whole, we find that Judge Cunningham has correctly disposed of issues 1-4 in his opinion. See Opinion, 2/7/14, at 8-18. Therefore, we affirm the convictions based on Judge Cunningham’s opinion.

With respect to Samneang’s fifth issue, the trial court acknowledged in its Rule 1925(a) opinion that Samneang’s sentence was illegal. The court sentenced Samneang to 15-30 years for attempted murder, and a consecutive term of 5-10 years on the conspiracy to commit murder conviction. As the trial court recognized, Samneang could not be sentenced for two inchoate crimes for conduct designed to culminate in the same offense, that is, murder. Section 906 of the Crimes Code precludes conviction of more than one of the inchoate crimes of criminal attempt, criminal solicitation or criminal conspiracy “for conduct designed to commit

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or to culminate in the commission of the same crime.” 18 Pa.C.S. § 906. See Commonwealth v. Kelly, 78 A.3d 1136 (Pa. Super. 2013) (sentence for conspiracy to commit attempted murder and attempted murder should have merged); see also Commonwealth v. Martinez, 438 A.2d 984 (Pa. Super. 1981) (where criminal conspiracy to commit burglary and subsequent attempted burglary constituted “conduct designed to culminate in the commission of the same crime,” that is, burglary, defendant should not have been sentenced for both attempt and conspiracy, but should have only been sentenced for one or the other); Cf. Commonwealth v. Jacobs, 39 A.3d 977 (Pa. 2012) (where defendant’s convictions for two inchoate crimes had separate criminal purposes they did not merge).

We agree with Judge Cunningham’s post-sentence assessment. Therefore, we vacate the judgment of sentence and remand for resentencing in accordance with 18 Pa.C.S. § 906. See Commonwealth v. Watts, 465 A.2d 1267 (Pa. Super. 1983). Counsel is directed to attach a copy of the trial court’s opinion in the event of further proceedings in this matter.

Affirmed in part; vacated and remanded in part. Jurisdiction relinquished.

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 1/30/2015

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