Com. v. Fontanez, E. ( 2021 )

J-S09029-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF : IN THE SUPERIOR COURT OF
PENNSYLVANIA, : PENNSYLVANIA
:
Appellee :
:
:
v. :
:
: No. 2428 EDA 2018
ERNESTO FONTANEZ :
:
Appellant
Appeal from the Judgment of Sentence Entered June 18, 2018
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0005937-2016
BEFORE: OLSON, J., McCAFFERY, J., and MUSMANNO, J.
MEMORANDUM BY McCAFFERY, J.: Filed: April 30, 2021
Ernesto Fontanez (Appellant) appeals from the judgment of sentence
imposed June 18, 2018, in the Philadelphia County Court of Common Pleas.
This appeal returns following a remand by a prior panel of this Court for the
appointment of new appellate counsel. See Commonwealth v. Fontanez,
2428 EDA 2018 (unpub. memo. at 7-8) (Pa. Super. Dec. 18, 2019).
Appellant’s sole issue on appeal asserts the trial court erred when it denied
his pretrial motion to dismiss the charges based upon a violation of
Pennsylvania Rule of Criminal Procedure 600. We affirm.
The facts underlying Appellant’s conviction are summarized by the trial
court as follows:
The complainant in this case is Sherry Szymanek (“Sherry”).
At the time of the underlying incident, she resided in a home on
J-S09029-21
East Monmouth Street in Philadelphia. [T]wo weeks prior to the
alleged crimes, [Sherry] allowed Appellant and his paramour to
store their belongings on the first floor of her home, after the two
had been evicted from their shared residence. Sherry provided
Appellant with a copy of her house key (so he could access his
belongings), but neither Appellant nor his paramour ever resided
with the complainant. On the day at issue, Appellant did not have
permission to enter Sherry’s home.
On April 3, 2016, around 3:00 p.m., Sherry returned from
the supermarket and realized that her front door “was kicked in
and the whole frame was messed up.” Sherry immediately
knocked on her neighbor’s door to see if he could provide
information about how the damage occurred. When she
approached the neighbor’s door, she observed Appellant
“screaming and yelling and fighting with whoever was in the
house.” Sherry testified that as soon as she stepped through the
neighbor’s door, Appellant aggressively ran towards her, threw
her against the wall, and used both of his hands to choke her.
Appellant did not stop until Helena Meeker (“Helena”) pulled him
away.
Sherry quickly returned to her own home, locked the door,
and ran upstairs to her bedroom. A few minutes later, she looked
through her bedroom window and observed Appellant and three
women “screaming” outside of her residence. Specifically,
Appellant threatened Sherry, stating that he was “going to beat
[her] the ‘F’ up.” He then unlocked her front door and the three
women — Helena, Alexandra Orosco (“Alexandra”"), and a third,
unidentified woman — followed him to Sherry’s bedroom.
As Appellant entered the bedroom, he pointed a firearm at
Sherry and ordered her to sit on the bed. He then told Alexandra,
“Fuck her up, beat her up.” Alexandra immediately complied and
punched Sherry “several” times over the course of ten to fifteen
minutes. At some point, the unidentified woman grabbed a metal
pipe from Appellant and attempted to strike the complainant.
Sherry testified that she heard Appellant cock the gun, before
Helena “grabbed him” and “wrestled him to the ground.” Helena
eventually gained possession of the weapon and placed it in a bag.
Subsequently, Appellant and the three women exited the
bedroom. Before Appellant left, he took Sherry’s cellphone and
told her that “[she] was going to die.” Sherry testified that her
assailants also took $400 in cash from her closet, but she did not
see which assailant took her money.
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At some point during the altercation, Sherry’s neighbor
called the police. By the time the officers arrived, Appellant and
the three women were no longer on the property. Officer Daniel
Mitchell (“Officer Mitchell”) testified that Sherry was “frantic” and
surveyed the immediate area. The officers quickly found
Appellant among a group of people (which included the women
who helped him attack Sherry), walking northbound on Emerald
Street. Sherry identified Appellant, Helena, and Alexandra as the
individuals who assaulted her and took her belongings.
Officer Mitchell and [another officer] stopped Alexandra and
recovered $100 from her person. Officer Derrick Clark stopped
Appellant and, upon searching him, recovered $226 and Sherry’s
cellphone. Officer Paul Sulsuk testified that as the officers
approached the group, he observed Helena throw a black and
yellow bag into the road. He testified that he recovered the bag,
searched its contents, and found a loaded Browning Arms .22
caliber semiautomatic handgun and a twelve-inch metal pipe.
Trial Ct. Op., 9/9/20, at 2-5 (footnote and record citations omitted).
Appellant was subsequently arrested, and a criminal complaint was filed
on April 4, 2016, charging him with numerous offenses including criminal
conspiracy, aggravated assault, and robbery.1 See Criminal Complaint,
4/4/16. On December 15, 2016, Appellant filed a motion for release on
nominal bail pursuant to Pa.R.Crim.P. 600(B)(1) (“Except in cases in which
the defendant is not entitled to release on bail as provided by law, no
defendant shall be held in pretrial incarceration in excess of . . . 180 days from
the date on which the complaint is filed[.]”). The trial court denied the motion
on December 21, 2016.
On January 11, 2018, Appellant filed an omnibus pretrial motion,
seeking suppression of evidence obtained as a result of an alleged illegal
____________________________________________
1 18 Pa.C.S. §§ 903(c), 2702(a), 3701(a)(1)(ii).
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seizure and arrest, and dismissal of the charges based upon a violation of Rule
600(A)(2)(a) (“Trial in a court case in which a written complaint is filed against
the defendant shall commence within 365 days from the date on which the
complaint is filed.”). On April 9, 2018, the trial court conducted a hearing on
the Rule 600 motion.2 See N.T., 4/9/18, at 4-21. The court denied the
motion, and immediately proceeded to a non-jury trial. The court found
Appellant guilty of simple assault, criminal conspiracy, theft, and possession
of an instrument of crime (PIC).3 The trial court found Appellant not guilty of
robbery, intimidation of a witness, and three firearms offenses.4 Charges of
aggravated assault, recklessly endangering another person, and receiving
stolen property5 were nolle prossed by the Commonwealth before trial.
On June 18, 2018, the trial court sentenced Appellant to two, concurrent
terms of eleven and one-half to 23 months’ imprisonment on the charges of
criminal conspiracy and simple assault, followed by a consecutive three years’
probation for his conviction of PIC.6 Appellant filed a timely, pro se notice of
appeal, but mistakenly directed it to the Pennsylvania Supreme Court. See
Appellant’s Notice of Appeal, 7/18/18. On August 16, 2018, the Supreme
____________________________________________
2 The record does not reveal a ruling on Appellant’s suppression issue.
3 18 Pa.C.S. §§ 2701(a), 3921(a), and 907(a), respectively.
4 18 Pa.C.S. §§ 4952(a)(4), 6105(a)(1), 6106(a)(1), 6108.
5 18 Pa.C.S. §§ 2705, 3925(a).
6 The trial court imposed no further penalty for Appellant’s theft conviction.
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Court transferred the appeal to this Court. On August 20, 2018, the trial court
directed Appellant to file a concise statement of errors complained of on appeal
pursuant to Pa.R.A.P. 1925(b). Trial counsel, who still represented Appellant,
did not respond to the order, and the trial court deemed all issues waived.
See Fontanez, 2428 EDA 2018 (unpub. memo. at 2).
Counsel subsequently filed a motion to withdraw and an Anders7 brief
in this Court. Upon review, a prior panel concluded counsel’s Anders brief
was “woefully deficient,” and determined, in any event, counsel had waived
all issues for review by failing to comply with the trial court’s Rule 1925(b)
order. See Fontanez, 2428 EDA 2018 (unpub. memo. at 4, 6-7). Thus, the
panel remanded the appeal to the trial court for the appointment of new
counsel. See id. at 7-8. The appeal is now ready for our consideration.8
Appellant raises one issue on appeal:
Did the Trial Court err by denying the Rule 600 Motion and not
dismissing the charges[?]
Appellant’s Brief at 3.
____________________________________________
7 See Anders v. California, 386 U.S. 738 (1967); Commonwealth v.
Santiago, 978 A.2d 349 (Pa. 2009).
8 Upon remand, Douglas Earl, Esquire, was appointed to represent Appellant,
and complied with the trial court’s order to file a Rule 1925(b) statement.
However, Attorney Earl failed to file a timely brief in this Court. Thus, on
November 18, 2020, we remanded the appeal to the trial court to determine
if Attorney Earl had abandoned Appellant. Following a hearing, the trial court
determined Attorney Earl did not abandon Appellant, and Attorney Earl
subsequently filed the brief before us.
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Rule 600 requires that “trial in a court case in which a written complaint
is filed against the defendant shall commence within 365 days from the date
on which the complaint is filed.” Pa.R.Crim.P. 600(A)(2)(a). When a
defendant is not brought to trial within the requisite time period, “at any time
before trial, . . . the defendant . . . may file a written motion requesting that
the charges be dismissed with prejudice[.]” Pa.R.Crim.P. 600(D)(1). We
review the trial court’s grant or denial of a defendant’s Rule 600 pretrial
motion to dismiss for an abuse of discretion. Commonwealth v. Andrews,
213 A.3d 1004, 1010 (Pa. Super. 2019) (citation omitted), appeal denied, 222
A.3d 376 (Pa. 2019). In doing so, our scope of review is limited to the trial
court’s findings and the evidence presented at the Rule 600 hearing, which we
must view “in the light most favorable to the prevailing party.” Id. (citation
omitted).
When trial commences more than 365 days after the complaint is filed,
a defendant is not automatically entitled to relief under Rule 600.
Commonwealth v. Moore, 214 A.3d 244, 248 (Pa. Super. 2019). The Rule
provides that “periods of delay at any stage of the proceedings caused by the
Commonwealth when the Commonwealth has failed to exercise due
diligence shall be included in the computation of the time within which trial
must commence[,]” but that [“a]ny other periods of delay shall be
excluded from the computation.” Pa.R.Crim.P. 600(C)(1) (emphasis
supplied). Thus, dismissal of the charges is the appropriate remedy only when
the defendant is not brought to trial within the extended run date, which
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accounts for excludable and excusable time under the Rule. Moore, 214 A.3d
at 248.
“Excludable time” is classified as periods of delay caused by the
defendant. Pa.R.Crim.P. 600(C)(2). “Excusable delay” occurs
where the delay is caused by circumstances beyond the
Commonwealth’s control and despite its due diligence. “Due
diligence is a fact-specific concept that must be determined on a
case-by-case basis. Due diligence does not require perfect
vigilance and punctilious care, but rather a showing by the
Commonwealth that a reasonable effort has been put forth.” Due
diligence includes, inter alia, listing a case for trial prior to the run
date, preparedness for trial within the run date, and keeping
adequate records to ensure compliance with Rule 600. Periods of
delay caused by the Commonwealth’s failure to exercise due
diligence must be included in the computation of time within which
trial must commence. Pa.R.Crim.P. 600(C)(1).
Id. at 248-49 (some citations omitted). We note “[t]he Commonwealth has
the burden of demonstrating by a preponderance of the evidence that it
exercised due diligence.” Commonwealth v. Plowden, 157 A.3d 933, 941
(Pa. Super. 2017) (en banc).
Here, Appellant’s criminal complaint was filed on April 4, 2016; thus, his
mechanical run date was April 4, 2017. However, he was not brought to trial
until April 9, 2018. In its opinion, the trial court provides a detailed timeline
of Appellant’s case, and concludes his run date was extended an additional
451 days, or until June 29, 2018. See Trial Ct. Op. at 7-15. Thus, because
Appellant was tried before the expiration of the extended run date, it
concludes no Rule 600 violation occurred. Id. at 15.
Appellant takes issue with two specific time periods, which he contends
should run against the Commonwealth — (1) 58 days between September 27,
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2016, and November 22, 2016, and (2) 57 days between April 10, 2017, and
June 6, 2017. Appellant’s Brief at 12. He insists that the Commonwealth did
not provide discovery during the first period, occasioning a delay, and that the
second delay was caused by “[t]he Commonwealth . . . trying to link up the
case of Appellant with another case.” Id.
Upon our review of the record, the parties’ briefs, and the relevant
statutory and case law, we conclude the trial court thoroughly addressed and
properly disposed of Appellant’s claim in its opinion. Thus, we rest on its well-
reasoned bases.9 See Trial Ct. Op. at 5-15 (detailing each trial delay and the
cause thereof; explaining the delay between September 27 and October 25,
2016, was due to appointment of new defense counsel, delay between October
25 and November 22, 2016, was due to defense counsel’s “technical issues .
. . preventing him for accessing discovery” and not attributable to
Commonwealth, and delay between April 10 and June 6, 2017, was due to
court’s calendar, and not “‘normal progression’ of a case, a lack of due
diligence, or other dilatory conduct on behalf of the Commonwealth”).
Accordingly, we affirm.
____________________________________________
9 We note the trial court addressed an additional challenge to the sufficiency
of the evidence that Appellant included in his Rule 1925(b) statement, but did
not argue in his brief. See Trial Ct. Op. at 19-21.
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Judgment of sentence affirmed. We direct that a copy of the trial court’s
September 9, 2020, opinion be filed along with this memorandum and
attached to any future filings in this case.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/30/21
-9-
Circulated 04/21/2021 10:06 AM
n.•
IN THE COURT OF COMMON PLEAS
FIRST JUDICIAL DISTRICT OF PENNSYLVANIA r•,
TRIAL DIVISION —CRIMINAL SECTION
COMMONWEALTH OF PENNSYLVANIA
V. CP-5I-CR-0005937 016 ;
2428 EDA 2018 ro
ERNESTO FOUNTANEZ
OPINION
LANE, J. September 9, 2020
OVERVIEW AND PROCEDURAL HISTORY
On April 4, 2016, Ernesto Fountanez ("Appellant") was arrested and charged with simple
assault and related charges. On April 9, 2018, counsel for Appellant moved to dismiss Appellant's
charges, pursuant to Pa.R.Crim.P. 600. On that same date, this court denied Appellant's motion
and, following awaiver trial, found Appellant guilty of conspiracy to commit simple assault, theft
by unlawful taking, possessing an instrument of acrime ("PIC"), and simple assault.' On .tune 18,
2018, this court sentenced Appellant to an aggregate term of eleven and one-half to twenty-three
months in prison, followed by three years of probation.
On July 18, 2018, Appellant filed apro se notice of appeal, but mistakenly filed it in the
Supreme Court of Pennsylvania. The Supreme Court transferred the appeal to the Superior Court
on August 16, 2018. On August 20, 2018, this court ordered Appellant to file aconcise statement
of errors, pursuant to Pa.R.A.P. 1925(b), and served that order on counsel of record. Counsel did
not respond to the order. In its 1925(a) opinion, this court determined that any appellate issues
were waived for failure to comply with the 1925(b) order.
'18 Pa.C.S. §903, 18 Pa.C.S.A, §3921(a), 18 Pa.C.S.A, §907(a), and 18 Pa.C.S.A. §2701(a), respectively.
1
Appellate counsel sought to withdraw his representation pursuant to Anders v. California,
386 U.S. 738 (1967) and Corn nonwealth v. Santiago, 978 A.2d 349 (2009). After reviewing the
matter, the Superior Court determined that counsel's appellate brief was "woefully deficient" and
his failure to respond to this count's 1925(b) order constituted per se ineffective assistance of
counsel. Commonwealth v. Fontanez, No. 2428 EDA 2018, 2019 WL 6899901, at *2---3 (Pa. Super.
Ct, Dec. 18, 2019). Accordingly, on December 18, 2019, the Superior Court remanded the case,
ordering the appointment of new counsel and the filing of asupplemental 1925(a) opinion from
this court.
Douglas P. Earl, Esquire, entered his appearance on behalf of Appellant on February 19,
2020. On March 9, 2020, this court ordered counsel to file a1925(b) statement within twenty-one
days. 2 Counsel did not seek an extension of time and did not file a 1925(b) statement until 105
days later, on June 22, 2020, in which he asserted the following claims:
1. The [trial] court erred by denying [the] Rule 600 Motion of Ernesto Fountanez,
particularly the time from September 27 to November 22, 2016 when discovery
remained outstanding.
2. There was insufficient evidence to convict Appellant Fountanez of
conspiracy—simple assault, theft by unlawful taking, [PIC], or simple assault.
Ernesto Fountanez never intended to injure the complainant or conspire with
another person to injure the complainant Ernesto Fountanez never used an
instrument of crime against the complainant.
(App.'s 1925(b) Statement) (unnecessary capitalization and words omitted, citations omitted).
FACTS
The complainant in this case is Sherry Szymanek ("Sherry"). At the time of the underlying
incident, she resided in ahome on East Monmouth Street in Philadelphia. (N.T. 4/9/18 at 29).
2On March 9, 2020, this court was aware and the docket reflected that new counsel had been appointed. This court's
instruction to appoint new counsel (which is indicated within its 1925(b) order) was included in error.
2
Sherry testified that she was acquainted with Appellant through his best friend, Jennis Watson,
who Sherry was dating at the time. (N.T. 4/9/18 at 33). Sherry further explained that two weeks
prior to the alleged crimes, she allowed Appellant and his paramour to store their belongings on
the first floor of her home, after the two had been evicted from their shared residence. (Id. at 32).
Sherry provided Appellant with acopy of her house key (so he could access his belongings), but
neither Appellant nor his paramour ever resided with the complainant. (Id. at 34, 49). On the day
at issue, Appellant did not have permission to enter Sherry's home. (Id. at 49).
On April 3, 2016, around 3:00 p.m., Sherry returned from the supermarket and realized
that her front door "was kicked in and the whole frame was messed up." (Id. at 30). Sherry
immediately knocked on her neighbor's door to see if he could provide information about how the
damage occurred. (Id. at 30). When she approached the neighbor's door, she observed Appellant
"screaming and yelling and fighting with whoever was in the house." (Id. at 31). Sherry testified
that as soon as she stepped through the neighbor's door, Appellant aggressively ran towards her,
threw her against the wall, and used both of his hands to choke her. (dI. at 34, 36--37). Appellant
did not stop until Helena Meeker ("Helena") pulled him away. (Id. at 37).
Sherry quickly returned to her own home, locked the door, and ran upstairs to her bedroom.
(Id. at 38). A few minutes later, she looked through her bedroom window and observed Appellant
and three women "screaming" outside of her residence. (Id. at 38-39). Specifically, Appellant
threatened Sherry, stating that he was "going to beat [her] the ``F' up." (Id. at 38). He then unlocked
her front door and the three women—Helena, Alexandra Orosco ("Alexandra"), and a third,
unidentified woman—followed him to Sherry's bedroom. (Id. at 39-40).
As Appellant entered the bedroom, he pointed afirearm at Sherry and ordered her to sit on
the bed. (Id. at 38, 41-42). He then told Alexandra, "Fuck her up, beat her up." (Id. at 43).
3
Alexandra immediately complied and punched Sherry "several" times over the course of ten to
fifteen minutes. (N.T. 4/9/18 at 44-45). At some point, the unidentified woman grabbed ametal
pipe from Appellant and attempted to strike the complainant. (Id. at 43, 45). Sherry testified that
she heard Appellant cock the gun, before Helena "grabbed him" and "wrestled him to the ground."
(Id. at 43). Helena eventually gained possession of the weapon and placed it in abag. (Id. at 45).
Subsequently, Appellant and the three women exited the bedroom. (Id. at 45-46). Before Appellant
left, he took Sherry's cellphone and told her that "[she] was going to die." (Id. at 46). Sherry
testified that her assailants also tools $400 in cash fi•om her closet, but she did not see which
assailant took her money. (Id. at 51).
At some point during the altercation, Sherry's neighbor called the police. (Id. at 47-48).
By the time the officers arrived, Appellant and the three women were no longer on the property.
(Id. at 88). Officer Daniel Mitchell ("Officer Mitchell") testified that Sherry was "frantic" and
"visibly shaken" when he arrived on the scene. (Id.). The officers put Sherry in apolice vehicle
and surveyed the immediate area. (Id. at 89). The officers quickly found Appellant among agroup
of people (which included the women who helped him attack Sherry), walking northbound on
Emerald Street. (Id. at 89, 106). Sherry identified Appellant, Helena, and Alexandra as the
individuals who assaulted her and took her belongings. (Id. at 48, 89, 97).
Officer Mitchell and Officer Sutton3 stopped Alexandra and recovered $100 from her
person. (Id. at 90). Officer Derrick Clark stopped Appellant and, upon searching him, recovered
$226 and Sherry's cellphone. (Id. at 97). Officer Paul Sulsuk testified that as the officers
approached the group, he observed Helena throw ablack and yellow bag into the road. (Id. at 106).
sOfficer Sutton's frill name is not contained within the notes of testimony.
4
He testified that he recovered the bag, searched its contents, and found aloaded Browning Arms
.22 caliber semiautomatic handgun and atwelve-inch metal pipe. (Id. at 107).
DISCUSSION
I. This court did not err or abuse its discretion in denying Appellant's Rule 600
motion.
In his first claim, Appellant argues that this court erred in denying his Rule 600 Motion.
He particularly challenges the fifty-six days between September 27, 2016 and November 22, 2016,
arguing that this period should have been included in this court's calculation of non-excludable
and non-excusable time. For the reasons discussed infra, Appellant's claim has no merit, and this
court's decision should be affirmed.
The standard of review for atrial court's denial of aRule 600 motion is well settled:
In evaluating Rule [600] issues, our standard of review of atrial court's decision is
whether the trial court abused its discretion. Judicial discretion requires action in
conformity with law, upon facts and circumstances judicially before the court, after
hearing and due consideration. An abuse of discretion is not merely an error of
judgment, but if in reaching aconclusion the law is overridden or misapplied or the
judgment exercised is manifestly unreasonable, or the result of partiality, prejudice,
bias, or ill will, as shown by the evidence or the record, discretion is abused.
Commonwealth v. Leaner, 202 A.3d 749, 765-66 (Pa. Super. 2019) (citation omitted; brackets in
original), appeal denied, 2019 W1 2754197 (Pa. 2019). An appellate court's scope of review is
"limited to the evidence on the record of the Rule 600 evidentiary hearing" and the trial court's
findings of fact. Commonwealth v. Watson, 140 A.3d 696, 698 (Pa. Super. 2016). Moreover,
appellate courts must construe the facts in the light most favorable to the prevailing party. Id.Pennsylvania Rule of Criminal Procedure 600 ("Rule 600") states, "[tjrial in acourt case
in which awritten complaint is filed against the defendant shall commence within 365 days from
the date on which the complaint is filed." Pa.R.Crim.P. 600(A)(2)(a). Generally, Rule 600 requires
the Commonwealth to try adefendant before the expiration of the "mechanical run date," i.e.,
5
within 365 days of the filing of acriminal complaint. Id.; Commonwealth v. Ramos, 936 A.2d
1097, 1101 (Pa. Super. 2007). However, the rule allows certain circumstances to extend the
Commonwealth's deadline. See Pa.R.Crim.P. 600(C). To determine the final date by which a
defendant must be tried, Rule 600 provides that "periods of delay at any stage of the proceedings
caused by the Commonwealth when the Commonwealth has failed to exercise due diligence shall
be included in the computation of the time within which trial must corn mence. Any other periods
of delay shall be excluded from the computation." Pa.R.Crim.P. 600(C)(1). The Commonwealth's
failure to satisfy the prompt-trial requirements of Rule 600(C) constitutes grounds for dismissal.
See Pa.R.Crim.P. 600(D)(1).
A defendant is not automatically entitled to dismissal under Rule 600 if his trial commences
after the mechanical runt date. Commonwealth v. Goldman, 70 A.3d 874, 879 (Pa. Super. 2013).
Rather, dismissal is an appropriate remedy only if the defendant has not been brought to trial by
the expiration of the adjusted runt date. Id. "The adjusted run date is calculated by adding to the
mechanical run date, i.e., the date 365 days from the complaint, both excludable and excusable
delay." Commonwealth v. Roles, 116 A.3d 122, 125 (Pa. Super. 2015). Periods of delay are
excludable if they are attributable to adefendant or his lawyer. Commonwealth v. Martz, --- A.3d
--- ----, 2020 WL 2029287, at *5 (Pa. Super. April 28, 2020) reargument dismissed (May 18,
2020). Conversely, periods of delay are excusable "where the delay is caused by circumstances
beyond the Commonwealth's control and despite its due diligence." Id.To determine whether Rule 600 requires dismissal of charges against a defendant, the
following three factors must be considered:
First, Rule 600(A) provides the mechanical run date. Second, we determine
whether any excludable time exists pursuant to Rule 600(C). We add the amount of
excludable time, if any, to the mechanical run date to arrive at an adjusted runt date.
6
If the trial takes place after the adjusted run date, we apply the due diligence
analysis set forth in Rule 600([D]). As we have explained, Rule 600[ ]encompasses
awide variety of circumstances under which aperiod of delay was outside the
control of the Commonwealth and not the result of the Commonwealth's lack of
diligence. Any such period of delay results in an extension of the run date. Addition
of any Rule 600[ ]extensions to the adjusted run date produces the final Rule 600
run date. If the Commonwealth does not bring the defendant to trial on or before
the final run date, the trial court must dismiss the charges.
Commonwealth v. Armstrong, 74 A.3d 228, 236 (Pa. Super. 2013) (citations and internal quotation
marks omitted; brackets in original).
It is well settled that due diligence is afact-specific inquiry and must be determined on a
case-by-case basis. Commonwealth v. Selenski, 994 A.2d 1083, 1089 (Pa. 2010). A finding of due
diligence "does not require perfect vigilance and punctilious care, but merely a showing the
Commonwealth has put forth areasonable effort." Id. In Commonwealth v. Mills, the Supreme
Court of Pennsylvania held that "time attributable to the normal progression of acase simply is
not [excludable] ``delay' for purposes of Rule 600." 162 A.3d 323, 325 (Pa. 2017). Thus, trial courts
are required to distinguish the "time necessary to ordinary trial preparation [from] judicial delay
arising out of the court's own scheduling concerns." Id. Delay caused by the "normal progression
of acase" must be included in the Rule 600 computation unless the Commonwealth can show it
exercised due diligence during the period or the record establishes that the judiciary or the defense
was responsible for the delay. Id.; Pa.R.Crim.P. 600(C).
In the case at bar, Appellant was arrested and the criminal complaint was filed on April 4,
2016. Accordingly, the mechanical run date was April 4, 2017. See Pa.R.Crim.P. 600(A)(2)(a).
Appellant's trial did not commence until April 9, 2018--735 days after the filing of his criminal
complaint. However, there were significant periods of excusable and excludable time that sanction
this delay. This court calculated the time as follows: 4
4 The shaded regions indicate periods of excludable or excusable delay.
7
NUMBER
OF DAYS TRIAL COURT'S
DATE EVENT REASON FOR DELAY
BETWEEN DETERMINATION
DATES
Appellant's arrest;
Scheduled for preliminary Attributable to
April 4, 2016 criminal
hearing 15 Commonwealth
complaint filed
Commonwealth request to
Case listed for Attributable to
April 19, 2016 continue preliminary 57
preliminary hearing Commonwealth
hearing
--:...::.< ........:..::.::.:. .::.......
Court continuance—
Preliminary °:.:_ _;_. Attributable to MC.
June 15, 2016 preliminary hearing held ::.: : ``...:::._:. ::, :.......:........ :..!. -:..-..
Hearingl
under advisement
Case held for court
Formal arraignment Attributable to
June 17, 2016 by the Hon. Francis 21
scheduled for 7/8/11 Commonwealth
T. Shields
Scheduled for pre-trial Attributable to
July 8, 2016 Formal arraignment 81
conference Commonwealth
September 27, Defense continuance '::````::``._: - 'Attributable to..
Pre-trial bring back ..........
2016 request :...... . efense ...;.:::
Defense request to convey :-:,; :; .: :--:..: :::-: :=:::Attributable ta' .;.; :.
October 25, 2016 Pre-trial bring back :.: -.._.:... Defense ;.... _.... .
Commonwealth offer
November 22, Defense request to convey =:::_==.: - Attributable to :-:::::
Pre-trial bring back :::,::,..:-:=; .g ;; ...::;__:: ;..:...-:
2016 Commonwealth offer .....;._...--. :-_:::::-•::.::;::::. Defense.....
Defendant rejected offer;
December 21, Attributable to
Pre-trial bring back Commonwealth requested 14
20 16 Commonwealth
trial date
Commonwealth
Scheduling continuance request, for the 96 Attributable to
January 4, 2017
conference purpose of "linking up" Commonwealth
codefendant trials
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_to.. 1W.::
April 10, 2017 and scheduling :_.:. =: 57 '.
possible date a....:.v.°:= :. -- - comrt's calendar'
conference '° .
Defense continuance ?-==: _ "- =-- ...:= Attributable =to
June 6, 2017 Listed for trial _:: _-..;2.24,.,'
request Defense :.._...:..::>.:
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January 16, 2018 Listed for trial Joint continuance request
- - Defense.
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February 2, 2018 Listed for trial continuance request—key 52 .". Commonwealth .but
witness family emergency :: excusable..:; .
Commonwealth
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continuance request-
April 2, 2018 Listed for trial 7 Commonwealth but .
witness contracted
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influenza
April 9, 2018 Waiver trial N/A N/A
8
a. April 4, 2016 to September 27, 2016-174 days attributable to the
Commonwealth.
Between April 4, 2016 and September 27, 2016, Appellant's case was listed for his
preliminary arraignment; two preliminary hearings--due to the Commonwealth's request to
continue the initial preliminary hearing (MC Docket at 7); 5 formal arraignment; and apre-trial
bring back. (Id. at 2). The Commonwealth did not argue that it was prepared to proceed to trial at
any point during this period. See (N.T. 4/9/18 at 11-16, 19-20). Thus, this court determined that
174 days of this 176-day period was simply due to the case's "normal progression" and, therefore,
attributable to the Commonwealth for the purposes of Rule 600. See Mills, 162 A.3d at 324-25
(holding that the 174 days between the filing of the criminal complaint and astatus conference
was not excludable "delay" for Rule 600 purposes, as the Commonwealth was not ready to proceed
to trial during that time). This court excluded from its calculation the two-day period between June
15, 2016 and June 17, 2016, during which the Honorable Francis T. Shields held Appellant's
preliminary hearing under advisement. See (MC Docket at 8).
b. September 27, 2016 to October 25, 2016—hventy-eight excludable days
attributable to the defense.
On September 14, 2016, Appellant's original trial counsel was suspended from the Bar of
this Commonwealth .6 On September 23, 2016, Kevin Thomas Birley, Esq. ("trial counsel") was
appointed to represent Appellant. (N.T. 4/9/18 at 6). Four days later, on September 27, 2016,
Appellant's case was listed for apre-trial bring back. On that date, trial counsel requested a
continuance, and the case was scheduled to return on October 25, 2016. (Id. at 12).
The Superior Court has held that, for the purpose of Rule 600 calculations, the
Commonwealth is not accountable for delays caused by the defense's request for acontinuance.
5 Appellant's Originating Docket Number is MC-51-CR-000960 1-20 1 6.
6 See Order, Office of Disciplinary Counsel v. Stosic, No. 2280 DD No. 3, No. 65 DB 2015 (Pa. September 14, 2016).
9
See Martz, 2020 WL 2029287 at *5 (noting that periods of delay are excludable if they are
attributable to the defense); Watson, 140 A.3d at 699 (noting that Pennsylvania case law suggests
that the Commonwealth may not be held accountable for delay caused by defense continuances);
Commonwealth v. Hunt, 858 A.2d 1234, 1244 (Pa. Super. 2004) (holding dismissal under Rule
600 unwarranted where most of the factors resulting in postponement—primarily defense
continuances—were beyond control of Commonwealth).
Here, trial counsel argued that the twenty-eight days between September 27, 2016 and
October 25, 2016 should have been attributed to the Commonwealth. (N.T. 4/9/18 at 7, 16-17).
The Commonwealth disagreed, noting that on September 27, 2016, trial counsel requested a
continuance, as he had only been appointed to the case four days prior. (Id. at 12). Trial counsel
did not deny seeking acontinuance. Rather, he argued that this time should have counted against
the Commonwealth because, as of September 27, the Commonwealth had not yet provided
discovery. (Id. at 7, 16-17). This court disagreed.
Specifically, this court determined that trial counsel sought and acontinuance was granted
for the purpose of enabling him, as newly-appointed counsel, to become familiar with the case.
Original counsel's professional suspension and the necessary appointment of new counsel was
neither caused by the Commonwealth nor within its control. Thus, for the purposes of Rule 600,
the twenty-eight-day period between September 27, 2016 and October 25, 2016 is attributable to
the defense and, therefore, excludable.
c. October 25, 2016 and November 22, 201.6— twenty-eight excludable days
attributable to the defense.
On October 25, 2016, Appellant's case was listed for apre-trial bring back. The case was
scheduled to return on November 22, 2016. During the hearing on Appellant's Rule 600 motion,
the Commonwealth argued that the twenty-eight days between October 25, 2016 and November
10
22, 2016 were excludable. (N.T. 4/9/18 at 13).The Commonwealth explained that on October 25,
2016, it conveyed an offer to Appellant, and "there was adefense [continuance] request to consider
the offer." (Id.). Conversely, trial counsel argued that the time should have been attributed to the
Cominonwealth, as he did not receive discovery until November 22, 2016:
[Mr. Birley]: October 25, 2016, the Commonwealth reported that [discovery] was
uploaded on the system[,] but Idid not have it available to me. I'm obviously
capable of downloading the discovery. Ihave on every other case that I've got. This
one Icouldn't get discover[y] on the case.
(Id. at 7). The Commonwealth countered that discovery was, in fact, available on that date,
explaining that it was "released and marked as released on October 25 into the 1✓-discovery
system[.]" (Id. at 19). This court agreed.
First, this court determined that the circumstance occasioning postponement was the
defense's request for acontinuance. Accordingly, the time was excludable. See Leaner, 202 A.3d
at 767 ("[T]o the extent [the] [a]ppellant suggests the Commonwealth may be held accountable for
delay caused by the defense's requests for continuance, our jurisprudence has held the opposite. ").
This court further determined that trial counsel's technical issues (which allegedly prevented him
from accessing discovery) could not be reasonably attributed to the Cominonwealth.
Moreover, counsel's claim—that he "kept making an issue of [not receiving discovery] at
court"—is not persuasive. (N.T. 4/9/18 at 16). Discovery was not available until October 25, 2016.
(dI. at 19). Notably, the case was not listed again until November 22, 2016, and, on that date, the
Commonwealth also provided counsel with apaper copy of discovery. (dI. at 17). The October 25
hearing is the only court-date on which (1) discovery was available and (2) counsel could have
claimed that he did not have it. Thus, his argument that he continuously had to "jump up and down
in court[, asking for discovery]" is somewhat misleading and does not support afinding of lack of
due diligence on behalf of the Commonwealth. (Id.).
11
d. November 22, 2016 to December 21, 2016—twenty-nine excludable days
attributable to Appellant.
Appellant's case was listed for pre-trial bring back on November 22, 2016. The case was
scheduled to return twenty-nine days later (December 21, 2016). Appellant conceded that this time
was attributable to the defense, explaining, "[O]n November 22 "d,Itook adate to pass discovery
and an offer which was rejected at the next court date, so Iconcede that the 11/22 to 12/21 should
be excludable." (N.T. 4/9/18 at 8) (emphasis added). This court agreed.
e. December 21, 2016 to April 10, 2017-110 days attributable to the
Commonwealth.
On December 21, 2016, Appellant rejected the Commonwealth's offer. (N.T. 4/9/18 at 8).
The Commonwealth requested atrial date, and the case was scheduled to return for ascheduling
conference fourteen days later on January 4, 2017. (Id.). This court attributed this fourteen-day
delay to the Commonwealth, as the Commonwealth did not argue that it was ready to proceed to
trial on December 21, 2016.
At the subsequent listing on January 4, 2017, the Commonwealth was not prepared to try
Appellant. (Id. at 13-14). Accordingly, Appellant's case was scheduled to return ninety-six days
later, on April 10, 2017. (Id. at 8, 14). The Commonwealth conceded that it was responsible for
this period of delay, explaining that "this was athree-codefendant case" and "we were trying to
link those up for trial." (Id. at 20, 14). This court agreed and included this time in its non-
excludable Rule 600 calculation.
L April 10, 2017 to June 6,2017—fifty-seven excludable days attributable to this
court's calendar.
On April 10, 2017, Appellant's case was listed for amotions hearing and scheduling
conference. On that date, the Commonwealth indicated that it was prepared to proceed to trial, and
12
the case was scheduled for trial on June 6, 2017, the earliest feasible date permitted by this court's
calendar. As the Commonwealth correctly noted:
There were efforts made in order to bring [the three co-defendants] back together.
.. not only from the Commonwealth perspective but also [in the interest of] judicial
efficiency as well and again[,] that ... [delay] was based [on] the earliest date that
we could have gotten, Iassume[,] based on the Court calendar in order to link all
the defendants up in that case.
(N.T. 4/9/18 at 20) (emphasis added).
Thus, the Commonwealth is not accountable for this period of delay, as the postponement
was not caused the "normal progression" of acase, alack of due diligence, or other dilatory
conduct of behalf of the Commonwealth. Where, as here, "a trial-ready prosecutor must wait
several months due to a court calendar, the time should be treated as ``delay' for which the
Commonwealth is not accountable." Mills, 162 A.3d at 325. See also, Leaner, 202 A.3d at 767
(citation and quotation marks omitted) ("[I]t is well-settled that judicial delay can support the grant
of an extension of the Rule 600 run date. This is particularly true where, as here, there is no
indication the trial court did not schedule the criminal proceedings at the earliest possible date
consistent with the court's business. "). Accordingly, this count determined that the fifty-seven days
between April 10, 2017 and June 6, 2017 were excludable.
g. June 6, 2017 to January 16, 2018-224 excludable days attributable to the
defense.
On June 6, 2017, Appellant's case was scheduled for trial. However, trial counsel requested
acontinuance, as he was on trial in an unrelated matter. (N.T. 4/9/18 at 9). Appellant's case was
rescheduled to proceed on January 16, 2018. This court determined—and Appellant conceded—
that the 224 days between June 6, 2017 and January 16, 2018 constituted excludable time. (Id. at
9).
13
h. January 16, 2018 to February 2, 2018—sevcnteen excludable days
attributable to ajoint-continuance request.
On January 16, 2018, Appellant elected to proceed with awaiver trial, and the parties
requested ajoint continuance. (N.T. 4/9/18 at 9). Appellant's case was scheduled for awaiver trial
on February 2, 2018. (W.). The seventeen days between these dates are excludable. See
Commonwealth v. Peterson, 19 A.3d 1131, 1137 (Pa. Super. 2011) (citation omitted) ("[A] joint
continuance is excludable delay. ").
i. February 2, 2018 to April 2, 2018—fifty-nine excusable days attributable to
circumstances beyond the Commonwealth's control, despite its due diligence.
On February 2, 2018, the Commonwealth requested a continuance after a witness
unexpectedly and abruptly left court due to a family emergency. (N.T. 4/9/18 at 15). The
Commonwealth was otherwise ready to proceed to trial and would have proceeded on that date,
but for the witness's sudden unavailability. Obviously, no amount of due diligence on behalf of
the Commonwealth can control or predict emergencies in awitness's personal life. Thus, although
the fifty-nine days between February 2, 2018 and April 2, 2018 are attributable to the
Commonwealth, this period of delay is excusable. See Peterson, 19 A.3d at 1138 ("[T] he
prosecution in the case sub judice had no control over the officer's inability to appear[,] and the
sixteen-day time frame from January 16, 2007 until February 1, 2007 is excusable.");
Commonwealth v. Staten, 950 A.2d 1006, 1010 (Pa. Super. 2008) (The court found due diligence
on behalf of the Commonwealth, as it "stood ready but for the unavailability of anecessary witness,
an arresting police officer who, beyond the control of the Commonwealth, had been assigned to
serve warrants that day.").
14
j. April 2, 2018 to April 9, 2018—seven excusable days attributable to
circumstances beyond the Commonwealth's control, despite its due diligence.
On April 2, 2018, the case was again listed for trial. The Commonwealth requested a
continuance on that date, as the complaining witness was infected with the flu. (N.T. 4/9/18 at 15).
The Commonwealth was otherwise prepared to proceed to trial. Thus, this court determined that
the seven days between April 2, 2018 and Appellant's trial on April 9, 2018 constituted excusable
delay.
In sum, this court found 451 days of excludable or excusable delay. The mechanical iun
date was April 4, 2017, i.e., 365 days after the criminal complaint was filed against Appellant.
Accordingly, Appellant's adjusted run date—the final date by which the Commonwealth was
required to try Appellant—was June 29, 2018. See Roles, 116 A.3 dat 125 ("The adjusted run date
is calculated by adding to the mechanical run date, i.e., the date 365 days from the complaint, both
excludable and excusable delay. "). This court denied Appellant's Rule 600 motion on this basis,
and its decision should be affirmed.
II. The evidence is sufficient to sustain Appellant's convictions of conspiracy to
commit simple assault, theft by unlawful taking, PIC, and simple assault.
In his second allegation of error, Appellant claims that the evidence presented at trial is
insufficient to sustain his convictions for conspiracy, theft, PIC, and simple assault. Each claim is
without merit.
A challenge to the sufficiency of the evidence is aquestion of law requiring aplenary scope
of review. Comimonwealth v. Jacoby, 170 A.3d 1065, 1076 (Pa. 2017). In reviewing sufficiency
of evidence claims, areviewing court must determine whether the evidence admitted at trial, and
all reasonable inferences drawn therefrom, when viewed in the light most favorable to the verdict
winner, are sufficient to support all the elements of the offense beyond a reasonable doubt.
15
Commonwealth v. Eckrote, 12 A.3d 383, 385 (Pa. Super. 2010). The Commonwealth may satisfy
its burden of proving every element of the crime beyond areasonable doubt by means of wholly
circumstantial evidence. Commonwealth v. Valentine, 101 A.3d 801, 805 (Pa. Super. 2014). In
applying the above test, the entire record must be evaluated and all evidence actually received must
be considered. Commonwealth v. Passmore, 857 A.2d 697, 706 (Pa. Super. 2004). Finally, the
trier 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. Id.a. The evidence presented at trial is sufficient to sustain Appellant's conviction
for conspiracy.
Appellant argues that the evidence presented at trial is insufficient to sustain his conviction
for conspiracy. This claim is baseless, and Appellant's conviction should be affirmed.
Section 903 of the Pennsylvania Crimes Code defines "conspiracy" 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:
(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.A. §903.
To sustain aconviction for conspiracy, the Commonwealth must establish that: (1) the
defendant intended to commit or aid in the commission of the criminal act; (2) the defendant
entered into an agreement with another to engage in the crime; and (3) the defendant or one or
more of the other co-conspirators committed an overt act in furtherance of the agreed upon crime.
Commonwealth v. Johnson, 985 A.2d 915, 920 (Pa. 2009). Most cases involving conspiracy do
16
not involve an explicit or formal agreement. dI. Nonetheless, "[t]he essence of a criminal
conspiracy is acommon understanding, no matter how it came into being, that aparticular criminal
objective be accomplished." Commonwealth v. Melvin, 103 A.3d 1, 42 (Pa. Super. 2014).
Accordingly, an agreement between coconspirators is generally established through circumstantial
evidence, including "the relations, conduct, or circumstances of the parties or avert acts on the part
of co-conspirators." Johnson, 985 A.2d at 920.
In the case at bar, the evidence clearly supports Appellant's conviction for conspiracy to
commit simple assault. Appellant claims that he "never intended to ... conspire with another
person to injure the [c]omplainant." However, the record is patently at odds with this claim.
Appellant's explicit threat "to beat [her] the ``F' up" and his express order to "[f]uck her up, beat
her up," coupled with his act of holding the victim at gunpoint, demonstrate that he positively
intended to assault Sherry. (Id. at 38, 43--45). Logic does not permit any other interpretation.
Moreover, Appellant's hostile cohort followed him into the victim's house, and, on Appellant's
command, violently attacked the victim. (Id. at 43-45). Although there is no evidence of an explicit
agreement to conspire, Appellant and his codefendants were clearly acting in concert to facilitate
and achieve the same criminal objectiveto assault and injure Sherry. This is unequivocally
sufficient to prove conspiracy. Thus, Appellant's conviction should be affirmed.
b. The evidence is sufficient to sustain Appellant's conviction for theft by
unlawful taking.
Appellant next claims that the evidence presented at trial is insufficient to sustain his
conviction for theft. This claim is waived due to lack of specificity.
If an appellant seeks to challenge his convictions on the basis that the evidence presented
at trial was insufficient to sustain those convictions, his 1925(b) statement must specify which
element or elements upon which the evidence was insufficiez. Commonwealth v. Williams, 959
17
A.2d 1252, 1257-58 (Pa. Super. 2008). Failure to specifically identify which elements are
unsupported by the evidence results in waiver of the issue:
If [a]ppellant wants to preserve aclaim 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 element or elements on
appeal. The instant 1925(b) statement simply does not specify the allegedly
unproven elements. Therefore, the sufficiency issue is waived.
Id.Here, Appellant simply argues that "[t]here was insufficient evidence to convict [him] of.
theft by unlawful taking[.]" Appellant does not identify any particular element that was allegedly
unsupported by the evidence. Thus, the issue is waived.
Moreover, even if the issue were not waived, the evidence presented at trial clearly supports
Appellant's conviction for theft. A person is guilty of theft by unlawful taking if he "unlawfully
takes, or exercises unlawful control over, movable property of another with intent to deprive him
thereof." 18 Pa.C.S.A. §3921(a). Here, Sherry testified as follows:
Q: You mentioned that your cell phone was taken.
A: Yes.
Q: Did you see who took your cell phone?
A: [Appellant] .
Q: And how did he take that?
A: In the struggle everyone lost their phone so he picked up my phone off the floor
and took my phone, so there was no way for me to call the police or anything.
Q: Did you see him actually pick it up?
A: Yes.
Q: Did you see where he put it?
A: Yes, in his pocket.
(N.T. 4/9/19 at 46).
18
Sherry directly observed Appellant take her phone, and there is absolutely no evidence
indicating that he had permission to do so or that he took the phone by mistake. Moreover, Sherry's
allegation is corroborated by the testimony of Officer Clark, who stated that he recovered the
complainant's cellphone from Appellant. (Id. at 97). Thus, the evidence is clearly sufficient to
sustain Appellant's conviction for theft.
c. The evidence presented at trial is sufficient to sustain Appellant's conviction
for PIC and simple assault.
Finally, Appellant claims that there was insufficient to convict him of PIC and simple
assault, as he "never intended to injure the complainant ... [and] never used an instrument of
crime against the complainant." Appellant is not entitled to relief on either of these remarkably
frivolous claims.
Section 2701 of the Crimes Code provides that aperson is guilty of simple assault if he:
(1) attempts to cause or intentionally, knowingly or recklessly causes bodily injury
to another;
(2) negligently causes bodily injury to another with adeadly weapon;
(3) attempts by physical menace to put another in fear of imminent serious bodily
injury; or
(4) conceals or attempts to conceal a hypodermic needle on his person and
intentionally or knowingly penetrates alaw enforcement officer or an officer or an
employee of acorrectional institution, county jail or prison, detention facility or
mental hospital during the course of an arrest or any search of the person.
18 Pa.C.S.A. §2701(a).
Section 2301 defines "bodily injury" as "[i]mpaiiment of physical condition or substantial
pain." 18 Pa.C.S.A. §2301. A fact-finder may infer that adefendant's actions actually caused
bodily injury (i.e., "impairment of physical condition or substantial pain") and enter aconviction
of simple assault, even if the victim does not explicitly testify to pain. Commonwealth v.
19
Jorgenson, 492 A.2d 2, 6 (Pa. Super. 1985), rev'd on other grounds, 517 A.2d 1287 (Pa. 1986)
(upholding aconviction of simple assault and finding bodily injury, despite "a lack of testimony
on pain," where the defendant struck the victim twice across the face after she refused his
advances).
Here, the Commonwealth presented substantial evidence which proved Appellant guilty of
simple assault. Sherry testified that Appellant slammed her against the wall before using both of
his hands to strangle her. (N.T. 4/9/18 at 36-37). Appellant choked her with such force that she
began to lose consciousness and sustained bruises on her neck "for quite some time." (Id. at 37).
This, alone, is sufficient to prove simple assault. See Commonwealth v. Emler, 903 A.2d 1273,
1278 (Pa. Super. 2006) (finding sufficient evidence of simple assault where the defendant
"vigorously and forcefully" the victim, causing the victim to feel pain for several weeks).
Sherry also testified that Appellant explicitly threated to harm her before holding her at
gunpoint for several minutes. (N.T. 4/9/18 at 38, 45). This--independently of any other act—is
sufficient to sustain Appellant's simple assault conviction. See Commonwealth v. Alford, 880
A.2d 666, 672 (Pa. Super. 2005) (noting that pounding on the victim's front door and pointing a
gun at her was "certainly ... sufficient to prove simple assault," i.e., an attempt by physical menace
to put her in fear of imminent serious bodily injury).
Moreover, the acts of Appellant's coconspirators support his conviction for simple assault.
It is well settled that "[C]onspirators are liable for acts of co-conspirators committed in furtherance
of the conspiracy. Even if the conspirator did not act as aprincipal in committing the underlying
crime, he is still criminally liable for the actions of his co-conspirators taken in furtherance of the
conspiracy." Commonwealth v. Lambert, 795 A.2d 1010, 1016 (Pa. Super. 2002). As discussed
.supra, Appellant and his codefendants conspired to assault Sherry. Appellant directed his
20
coconspirators to "[fjuck her up." (N.T. 4/9/18 at 43). Alexandra repeatedly punched Sherry,
which caused the victim to sustain several injuries, including swollen eyes, the loss of atooth, the
formation of ablood clot behind her eye, and the formation of aseemingly permanent lump on her
jaw. (Id. at 44, 64). These injuries are easily sufficient to prove simple assault.
Finally, Appellant's use of afirearm, under the particular circumstances of this case, is
sufficient to sustain his conviction for PIC. A person is guilty of PIC if he "possesses any
instrument of crime with intent to employ it criminally." 18 Pa.C.S.A. § 907. Section 907(d)
defines an instrument of crime as "(1) [a]nything specially made or specially adapted for criminal
use[, or] (2) [a]nything used for criminal purposes and possessed by the actor tinder circumstances
not manifestly appropriate for lawful uses it may have." Here, Appellant possessed and used a
loaded firearm for the purpose of assaulting Sherry---an undeniably unlawful use of afirearm.
Thus, Appellant's PIC conviction should be affirmed.
CONCLUSION
This court has undertaken careful review of the record and finds no harmful, prejudicial,
or reversible errors, and its decision should be affirmed.
21
IN THE COURT OF COMMON PLEAS
FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
TRIAL DIVISION —CRIMINAL SECTION
COMMONWEALTH OF PENNSYLVANIA
V. CP-51-CR-0005937-2016
2428 EDA 2018
ERNESTO FOUNTANEZ
PROOF OF SERVICE
Ihereby certify that Iam this day serving the foregoing Court Opinion upon the person(s),
and in the manner indicated below, which service satisfies the requirements of Pa. R. Crim. P. 114:
Defense Counsel: Douglas P. Earl, Esq.
1015 Chestnut St., Suite 902
Philadelphia, PA 19107
Type of Service: (J) First Class Mail ()Certified () Personal Service
District Attorney: Paul George, Esq.
Supervisor, Appeals Unit
Philadelphia District Attorney's Office
Three South Penn Square
Philadelphia, PA 19107-3499
Type of Service: (J) First Class Mail () Certified () Personal Service
Date: September 9, 2020
Stachelrodt, Esq.
Law Clerk to the Honorable Timika Lane