Opinion
J-A23001-15 No. 1672 WDA 2013
09-24-2015
COMMONWEALTH OF PENNSYLVANIA, Appellee v. SHERRYL FELI, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence entered on May 23, 2013 in the Court of Common Pleas of Allegheny County, Criminal Division, No. CP-02-CR-0009920-2012 BEFORE: GANTMAN, P.J., LAZARUS and MUSMANNO, JJ. MEMORANDUM BY MUSMANNO, J.:
Sherryl Feli ("Feli") appeals from the judgment of sentence imposed after she was convicted of three counts of aggravated assault and one count of criminal conspiracy. We affirm.
See 18 Pa.C.S.A. §§ 2702(a)(1), (4); 903.
In its Pa.R.A.P. 1925(a) Opinion, the trial court thoroughly set forth the facts underlying this appeal, which arises out of an assault on John Hrabolowski ("Hrabolowski") and John Szwaczkowski ("Szwaczkowski"), perpetrated by Feli and her co-defendant, William Hughes ("Hughes"). See Trial Court Opinion, 10/21/14, at 4-8. We adopt the trial court's recitation herein by reference. See id.
Following the assault, the Commonwealth charged Feli with one count each of criminal conspiracy and aggravated assault - serious bodily injury (hereinafter "aggravated assault - SBI"), and two counts of aggravated assault - deadly weapon used (hereinafter "aggravated assault - DW"), pertaining to her assaults upon Hrabolowski and Szwaczkowski, respectively.
The matter proceeded to a non-jury trial, after which the trial court found Feli guilty on all counts. On May 23, 2013, the trial court imposed an aggregate sentence of two to four years in prison, followed by seven years of probation. Feli filed post-sentence Motions, which the trial court denied after a hearing. Feli thereafter timely filed a Notice of Appeal, and a Pa.R.A.P. 1925(b) Concise Statement of Errors Complained of on Appeal.
Hughes also filed a direct appeal, docketed before this panel at 1779 WDA 2013.
On appeal, Feli presents the following issues for our review:
I. Was the evidence sufficient to support [] Feli's convictions for aggravated assault [- SBI] and conspiracy to commit aggravated assault [- SBI] against [] Hrabolowski?Brief for Appellant at 5 (capitalization omitted).
II. Was the evidence sufficient to support [] Feli's conviction for aggravated assault [- DW] against [] Hrabolowski?
III. Was the evidence sufficient to support [] Feli's conviction for aggravated assault [- DW] against [] Szwaczkowski?
We apply the following standard of review when considering a challenge to the sufficiency of the evidence:
The standard we apply ... 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. In applying the above test, we may not weigh the evidence and substitute our judgment for [that of] 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 defendant's guilt may be resolved by the fact-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 finder of fact[,] while passing upon the credibility of witnesses and the weight of the evidence produced, is free to believe all, part or none of the evidence.Commonwealth v. Melvin , 103 A.3d 1, 39-40 (Pa. Super. 2014) (citation omitted).
In her first issue, Feli challenges the sufficiency of the evidence supporting her convictions of (1) aggravated assault - SBI; and (2) conspiracy to commit aggravated assault - SBI. See Brief for Appellant at 16-29. We will address Feli's claims separately.
In challenging her conviction of aggravated assault - SBI, Feli argues that the evidence failed to establish that she had inflicted, or attempted to inflict, "serious bodily injury" upon Hrabolowski, a requisite element of the offense. Id. at 16.
The Crimes Code provides that a person is guilty of aggravated assault - SBI if she "attempts to cause serious bodily injury to another, or causes such injury intentionally, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life[.]" 18 Pa.C.S.A. § 2702(a)(1) (footnote added). "Aggravated assault [- SBI] does not require proof that serious bodily injury was inflicted but only that an attempt was made to cause such injury. Where the victim does not sustain serious bodily injury, the Commonwealth must prove that the appellant acted with specific intent to cause serious bodily injury." Commonwealth v. Lewis , 911 A.2d 558, 564 (Pa. Super. 2006) (citations omitted); see also 18 Pa.C.S.A. § 901(a) (providing that "[a] person commits an attempt when, with intent to commit a specific crime, [s]he does any act which constitutes a substantial step toward the commission of that crime.").
"Serious bodily injury" is defined as "bodily injury which creates a substantial risk of death or which causes serious, permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ." 18 Pa.C.S.A. § 2301.
"A person acts intentionally with respect to a material element of an offense when ... it is [her] conscious object to engage in conduct of that nature or to cause such a result ...." 18 Pa.C.S. § 302(b)(1)(i). As intent is a subjective frame of mind, it is of necessity difficult of direct proof. The intent to cause serious bodily injury may be proven by direct or circumstantial evidence.Commonwealth v. Matthew , 909 A.2d 1254, 1257 (Pa. 2006) (citations to case law and internal quotation marks omitted). "[A] determination of whether an appellant acted with intent to cause serious bodily injury must be determined on a case-by-case basis." Commonwealth v. Dailey , 828 A.2d 356, 360 (Pa. Super. 2003); see also id. (observing that "depending on the other circumstances, even a single punch may be sufficient.").
In the instant case, it is undisputed that Hrabolowski did not actually suffer serious bodily injury under the statutory definition of this term. Accordingly, the relevant inquiry is whether Feli attempted and intended to inflict serious bodily injury upon Hrabolowski.
Feli argues that the Commonwealth failed to present sufficient evidence that she intended to inflict serious bodily injury, emphasizing that she struck Hrabolowski only on the forearms with her metal bike lock, which caused minor bruising that did not require medical attention. See Brief for Appellant at 18-24. Feli points out that this Court has stated that, in inferring intent to commit serious bodily injury from circumstantial evidence, "[g]enerally speaking, one is presumed to intend the normal consequences of one's actions." Id. at 18 (quoting Commonwealth v. Robinson ,817 A.2d 1153, 1159 (Pa. Super. 2003)). According to Feli, in the instant case, "[c]ommon sense dictates that the normal consequence of striking someone on the forearms with a bike lock would be the kind of minor bruising that occurred here, not 'serious bodily injury' or death." Brief for Appellant at 19. Feli maintains that the decision in Robinson is analogous to this case, and requires that her conviction be reversed. Id.
In Robinson ,the defendant and two accomplices robbed a woman of her backpack, at gunpoint, outside of a bank. Robinson ,817 A.2d at 1157. One of the accomplices struck the woman in the back with the butt of his handgun, which did not cause her serious bodily injury. Id. at 1157, 1159. This Court held that the evidence was insufficient to sustain the defendant's conviction of aggravated assault - SBI, stating that "the circumstances of the assault do not support the inference that the assailant intended to inflict greater injury than that actually inflicted." Id. at 1159.
In the instant case, Feli, relying on Robinson ,asserts that
the "only reasonable inference" to be drawn here is that the blows [] Feli allegedly delivered were, like the blow in Robinson ,intended "to inflict the same degree of injury as was actually inflicted." Robinson ,817 A.2d at 1160. "Thus, the conclusion of the factfinder, that the intent behind the blow was to injure much more severely than that actually inflicted, is nothing more than sheer speculation." Id. at 1160-61.Brief for Appellant at 21.
In its Opinion, the trial court addressed Feli's claims and concluded that the evidence was sufficient to establish that she attempted and intended to inflict serious bodily injury upon Hrabolowski. See Trial Court Opinion, 10/21/14, at 18-20. The trial court's analysis is supported by the record and the law, and we affirm on this basis concerning Feli's challenge to her conviction of aggravated assault - SBI. See id.
As an addendum, we observe that Feli's reliance on Robinson , supra , is misplaced, as it is factually distinguishable. Unlike the assailant in Robinson ,Feli personally delivered the blows with the metal bike lock to Hrabolowski's forearms, after having seen her paramour, Hughes, cause serious bodily injury to Szwaczkowski, see infra, with a nearly identical bike lock. Moreover, the Court in Robinson emphasized that the intent of the co-conspirators in that case was to
rob[] [the victim], plain and simple. The clear intent of the robbers was to take [the victim's] backpack, not to inflict serious bodily injury. To accomplish this, the assailant found it necessary to strike [the victim] in the back. Indeed, there is no indication the blow was delivered for any purpose other than to assist in separating the backpack from [the victim's] clutches.Robinson ,817 A.2d at 1161. In the instant case, although Feli had the opportunity to avoid the fray initiated by Hughes, she instead actively participated in the assault, which apparently did not have any criminal objective aside from the assault itself. Additionally, Feli repeatedly struck Hrabolowski on his forearms with her bike lock while he was attempting to protect Szwaczkowski from further injury, unlike the assailant in Robinson ,who inflicted only one blow.
Moreover, after Feli ceased striking Hrabolowski on his forearms, she proceeded to strike Szwaczkowski multiple times with her bike lock on his head and back.
Feli additionally contends that "the evidence was insufficient to establish that [she] conspired to commit aggravated assault [- SBI] against [Hrabolowski] for two reasons: (1) [] Feli did not possess the requisite intent to commit aggravated assault against [Hrabolowski]; and (2) there was no evidence of an agreement between [] Hughes and [] Feli to assault [Hrabolowski]." Brief for Appellant at 24.
"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) and overt act was done in furtherance of the conspiracy." Commonwealth v. Hennigan , 753 A.2d 245, 253 (Pa. Super. 2000) (citation omitted); see also 18 Pa.C.S.A. § 903(a).
The essence of a criminal conspiracy is a common understanding, no matter how it came into being, that a particular criminal objective be accomplished. Therefore, a
conviction for conspiracy requires proof of the existence of a shared criminal intent. An explicit or formal agreement to commit crimes can seldom, if ever, be proved and it need not be, for proof of a criminal partnership is almost invariably extracted from the circumstances that attend its activities. Thus, a conspiracy may be inferred where it is demonstrated that the relation, conduct, or circumstances of the parties, and the overt acts of the co-conspirators[,] sufficiently prove the formation of a criminal confederation. The conduct of the parties and the circumstances surrounding their conduct may create a web of evidence linking the accused to the alleged conspiracy beyond a reasonable doubt. Even if the conspirator did not act as a principal in committing the underlying crime, he is still criminally liable for the actions of his co-conspirators in furtherance of the conspiracy.Commonwealth v. Knox ,50 A.3d 749, 755 (Pa. Super. 2012) (citation omitted). Stated differently, an "agreement to commit an unlawful act ... may be proved inferentially by circumstantial evidence, i.e., the relations, conduct or circumstances of the parties or overt acts on the part of the co-conspirators." Commonwealth v. Thomas ,65 A.3d 939, 943 (Pa. Super. 2013) (citation omitted).
As discussed above, the evidence was sufficient to sustain the trial court's finding that Feli possessed the requisite intent to commit aggravated assault - SBI on Hrabolowski. Accordingly, we limit our discussion to whether the evidence established an agreement between Feli and Hughes to assault Hrabolowski. See Hennigan , supra .
Feli argues that "[t]he 'mere association' between [] Feli and [] Hughes is insufficient to establish a 'common understanding'" between them to assault Hrabolowski. Brief for Appellant at 26 (citing Commonwealth v. Davenport ,452 A.2d 1058, 1061 (Pa. Super. 1982) (stating that "[r]egardless of the type of proof advanced by the Commonwealth, [] proof of a common understanding among the alleged co-conspirators is an indispensable element of the crime.") (citation omitted)); see also Brief for Appellant at 27 (asserting that there was no evidence of "any actual agreement or plan between [] Feli and [] Hughes[.]") (emphasis in original, quotation marks omitted). According to Feli, "[t]he Commonwealth's evidence established only 'that a brawl occurred in which [the defendants] were participants. This, however, does not in itself demonstrate the existence of a conspiracy.'" Id. at 28 (brackets in original) (quoting Commonwealth v. Kennedy ,453 A.2d 927, 930 (Pa. 1982)); see also Brief for Appellant at 28 (wherein Feli argues that her conspiracy conviction cannot stand based upon Kennedy ).
The trial court addressed Feli's challenge to her conspiracy conviction in its Opinion, concluding that the circumstantial evidence was sufficient to establish a criminal understanding between Feli and Hughes. See Trial Court Opinion, 10/21/14, at 11-13. We agree with the trial court's conclusion and analysis, which is supported by the record, and affirm on this basis with regard to Feli's challenge to her conspiracy conviction.
As an addendum, we find Kennedy to be factually distinguishable from the instant case, and unavailing to Feli. In Kennedy , the defendant and his friend had a verbal argument with the victim, "and [] this argument immediately escalated into a violent confrontation in which defendant and [his friend] inflicted beatings upon [the victim.]" Kennedy ,453 A.2d at 930. The defendant was convicted of, inter alia, criminal conspiracy. Id. at 929-30. On appeal, the defendant raised a sufficiency challenge to his conspiracy conviction, asserting that there was no evidence of an agreement between the defendant and his friend to assault the victim. Id. at 929. This Court agreed, holding as follows:
[T]he Commonwealth's evidence clearly established that a brawl occurred in which defendant and [his friend] were participants. This, however, does not in itself demonstrate the existence of a conspiracy. ... [T]he evidence in the light most favorable to the Commonwealth reveals[] a mere association between defendant and [his friend] ..., along with their simultaneous participation in the assault upon [the victim]. Nothing in the relation, conduct, or circumstances of the parties, however, is indicative of there having been an agreement, explicit or implicit, as to commission of the assault. ... These events [were] perfectly consistent with the presumption that defendant and [his friend] acted independently and spontaneously[.]Id. at 930 (emphasis in original).
Unlike in Kennedy , the evidence in the instant case, viewed in the light most favorable to the Commonwealth, showed more than a "mere association" between Feli and Hughes. Feli, Hughes's paramour, knew that Hughes had smashed the side view mirror of Hrabolowski's vehicle during the initial encounter with Hrabolowski. She subsequently willingly joined in the assault initiated by Hughes upon encountering the victims the second time. Therefore, unlike in Kennedy ,the assault in this case did not "immediately escalate[] into a violent confrontation" following an argument, and Feli and Hughes did not act "independently and spontaneously."
Next, we will address Feli's remaining two issues together, as they are related. In these issues, Feli asserts that there was insufficient evidence presented at trial to sustain her two convictions of aggravated assault - DW, concerning her attacks on Szwaczkowski and Hrabolowski, respectively. See Brief for Appellant at 35-41.
The Crimes Code provides that a person is guilty of aggravated assault - DW if she "attempts to cause or intentionally or knowingly causes bodily injury to another with a deadly weapon[.]" 18 Pa.C.S.A. § 2702(a)(4) (footnote added). A "deadly weapon" is defined as "[a]ny firearm, whether loaded or unloaded, or any device designed as a weapon and capable of producing death or serious bodily injury, or any other device or instrumentality which, in the manner in which it is used or intended to be used, is calculated or likely to produce death or serious bodily injury." 18 Pa.C.S.A. § 2301 (emphasis added). In discussing what constitutes a deadly weapon for purposes of application of the deadly weapon enhancement for sentencing purposes, this Court observed as follows:
Bodily injury is defined as "[i]mpairment of physical condition or substantial pain." 18 Pa.C.S.A. § 2301.
"[I]tems not normally classified as deadly weapons can become so based upon their use under particular circumstances." Commonwealth v. Rhoades ,2010 PA Super 204, 8 A.3d 912, 917 (Pa. Super. 2010) (intact glass bottle qualified as a deadly weapon). We found many examples in our cases: ... Commonwealth v. Scullin ,414 Pa. Super. 442, 607 A.2d 750 (Pa. Super. 1992) (tire iron thrown at victim was a deadly weapon); Commonwealth v. Cornish ,403 Pa. Super. 492, 589 A.2d 718, 721 (Pa. Super. 1991) (fireplace poker used to strike victim constitutes a deadly weapon); Commonwealth v.
Brown ,402 Pa. Super. 369, 587 A.2d 6, 7 (Pa. Super. 1991) (saw used to stab victim was a deadly weapon); Commonwealth v. Chapman , 365 Pa. Super. 10, 528 A.2d 990 (Pa. Super. 1987) (straightedge razor placed at the face of an individual is a deadly weapon).Commonwealth v. Buterbaugh ,91 A.3d 1247, 1268 (Pa. Super. 2014) (en banc).
In Buterbaugh ,the Court noted that "[t]he Crimes Code provides an almost verbatim definition of deadly weapon as the one set forth in the Sentencing Guidelines[.]" Buterbaugh ,91 A.3d at 1268.
Feli challenges her conviction of aggravated assault - DW (concerning Hrabolowski), asserting that the trial court erred in determining that the metal bike lock that she used in the assaults met the statutory definition of a "deadly weapon." Brief for Appellant at 30-31 (quoting 18 Pa.C.S.A. § 2702(a)(4), and arguing that "Feli [did not use] her bike lock in a manner which was 'calculated or likely to produce death or serious bodily injury.'"). Additionally, Feli asserts that the evidence was insufficient to sustain her conviction based upon a conspiracy theory of liability. See Brief for Appellant at 33-34. Feli relies upon the decision in Kennedy , supra ,asserting that there was no evidence that she had entered into an agreement with Hughes to assault Hrabolowski. Brief for Appellant at 33 (quoting Kennedy ,453 A.2d at 930, and arguing that "it is not enough for the Commonwealth to simply demonstrate that [] Feli came to [] Hughes'[s] aid in the course of a fight, because 'persons do not commit the offense of conspiracy when they join into an affray spontaneously, rather than pursuant a common plan, agreement, or understanding.'").
In support of this claim, Feli essentially restates her arguments advanced in connection with her first issue, discussed supra. Brief for Appellant at 31-32.
Regarding her aggravated assault - DW conviction pertaining to Szwaczkowski, Feli argues, in relevant part, as follows:
At trial, not a single witness testified to seeing [] Feli strike [Szwaczkowski] with a bike lock. [Hrabolowski] - the victim in the best position to observe the fight - testified definitively that he did not see [] Feli strike [Szwaczkowski] at any point. [] Feli's conviction on this count was based entirely on [Szwaczkowski's] testimony that, while he was being attacked by [] Hughes, he thought that he felt "steel" hit him from behind, and assumed it was [] Feli striking him with her bike lock. However, [Szwaczkowski] acknowledged that he never saw [] Feli strike him. ... [T]he allegation that [] Feli struck [Szwaczkowski] during this fight was premised entirely on conjecture.Brief for Appellant at 35-36 (emphasis in original, citations to record and paragraph break omitted); see also id. at 35 (citing Commonwealth v. Garrett , 222 A.2d 902, 905 (Pa. 1966) (stating that "evidence to convict an accused of a crime must be something more than evidence that merely raises a suspicion of guilt. The inference of guilt must be based on facts and conditions proved; mere conjecture or surmise is not sufficient.") (emphasis supplied by Feli)). Finally, as in Feli's above-discussed challenge to her conviction of aggravated assault - DW (concerning Hrabolowski) based on a conspiracy theory of liability, she raises the same claim in connection with her conviction as to Szwaczkowski. See Brief for Appellant at 37-41.
In its Opinion, the trial court addressed Feli's claims and the applicable law, concluding that the evidence was sufficient to sustain both of Feli's convictions of aggravated assault - DW. See Trial Court Opinion, 10/21/14, at 14-18; see also Buterbaugh , supra (collecting cases ruling that objects not normally classified as deadly weapons became so based upon their use under particular circumstances). We agree and affirm based upon the trial court's Opinion with regard to Feli's claims. See Trial Court Opinion, 10/21/14, at 14-18.
Because we conclude that the evidence was sufficient to convict Feli beyond a reasonable doubt of all of the charges against her, we affirm her judgment of sentence.
Judgment of sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/24/2015
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