Com. v. Feli, S. ( 2015 )

J-A23001-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
SHERRYL FELI, :
:
Appellant : No. 1672 WDA 2013
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.: FILED SEPTEMBER 24, 2015
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.1 We affirm.
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
1
See 18 Pa.C.S.A. §§ 2702(a)(1), (4); 903.
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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,2 and a
Pa.R.A.P. 1925(b) Concise Statement of Errors Complained of on Appeal.
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?
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?
Brief for Appellant at 5 (capitalization omitted).
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
2
Hughes also filed a direct appeal, docketed before this panel at 1779 WDA
2013.
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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[3] 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.
3
“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.
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§ 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.”).
“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.
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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
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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.
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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,4 unlike the assailant in Robinson,
who inflicted only one blow.
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
4
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.
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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
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“[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
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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.”
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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[5] 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:
“[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.
5
Bodily injury is defined as “[i]mpairment of physical condition or
substantial pain.” 18 Pa.C.S.A. § 2301.
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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).6
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.’”).7
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
6
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.
7
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.
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conspiracy when they join into an affray spontaneously, rather than
pursuant a common plan, agreement, or understanding.’”).
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
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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.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/24/2015
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IN THE COURT OF COMMON PLEAS FIFTH JUDICIAL DISTRICT
ALLEGHENY COUNTY, PENNSYLVANIA
COMMONWEALTH OF PENNSYLVANIA, CRIMINAL DIVISION
v.
WILLIAM HUGHES, CC No. 201209919
Defendant
.. :,
.
COMMONWEALTH OF PENNSYLVANIA,
v.
SHERRYL FELI,
Defendant.
OPINION OF THE COURT
Honorable Beth A. Lazzara
Allegheny County Courthouse
436 Grant Street
Pittsburgh, PA 15219
Counsel of Record:
For the Defendants:
A. Kayleigh Shebs, Esq.
Counsel for William Hughes
Daniel J. Eichinger, Esquire
Counsel for Sherryl Feli
· For the Commonwealth:
Vd.AtNnO:) AN3rl;;)tl1W
,,t_(o1s11110 1wr1rm:10 · Office of the District Attorney
so~f)o.3tlJhlnoJ AD ~n31 of Allegheny County
400 Allegheny County
Courthouse
Pittsburgh, PA 15219
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IN THE COURT OF COMMON PLEAS FIFTH JUDICIAL DISTRICT
ALLEGHENY COUNTY, PENNSYLVANIA
COMMONWEALTH OF PENNSYLVANIA, CRIMINAL DIVISION
v.
WILLIAM HUGHES, CC No. 201209919
Defendant.
COMMONWEALTH OF PENNSYLVANIA,
v.
SHERRYL FELI, CC No. 201209920
Defendant.
OPINION OF THE COURT
This matter involves two defendants, William Hughes and Sherryl
Feli. Both Defendants were charged with three (3) counts of
aggravated assault and one (1) count of criminal conspiracy. William
Hughes was also charged with criminal mischief. Count 1 at each
information charged aggravated assault pursuant to 18 Pa. C.S.A.
§2702(a)(l), alleging the infliction of serious bodily injury, or an
attempt to do so, on victim John Hrabolowski. The second and third
counts in each information charged aggravated assault pursuant to 18
Pa. C.S.A. §2702(a)(4), alleging that the Defendants caused bodily
injury to the victims, John Hrabolowski (Count 2) and John
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,, ~ '. .
Szwaczkowski (Count 3), with a deadly weapon. The criminal
conspiracy count alleged that the Defendants agreed that they would
commit the crime of assault on the victims.1 Finally, Defendant
Hughes was charged with criminal mlschler', alleging that he
intentionally damaged the property of John Hrabolowski.
The Defendants waived their right to a jury trial and proceeded
non-jury before this court. On the day of trial, March 7, 2013, they
were adjudged guilty at all counts. The Defendant Sherryl Feli was
sentenced on May 23, 2013 to not less than twenty-four (24) months
nor more than forty-eight ( 48) months of imprisonment at count 1,
followed by a consecutive period of probation of seven (7) years, and
to no further penalty on the remaining counts. William Hughes was
sentenced on July 16, 2013 to not less than seven and one half (7 112)
years nor more than fifteen (15) years of imprisonment at count 1, to
five (5) years probation at count 2, to become effective upon his
parole from the sentence at count 1, and to a consecutive term of
eight (8) years probation at count 3. No further penalty was imposed
on the remaining counts. Both parties filed post-sentence motions
which were denied. Notices of Appeal were timely filed and, pursuant
1
18 Pa. C.S.A. § 901.
2
18 Pa. C.S.A.. § 3304.
l-
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to this court's Order, Concise Statements of Errors Complained of on·
Appeal were filed by both Defendants.
Defendant Hughes challenged the weight and sufficiency of the
evidence as to Count 1, Count 2 and Count 4. Defendant Feli
challenged the sufficiency and weight of the evidence as to all counts.
Both also contended that the sentences imposed constituted an abuse
of discretion. Before turning to these claims, it is necessary to review
the evidence, taken in the light most favorable to the Commonwealth
as the verdict winner.
John Hrabolowski testified that on March 26, 2012, as he parked
his car outside the Lawrenceville post office, he was verbally
confronted by a man he later identified as Defendant Hughes. (N.T. 9-
11, 14-15). Hughes made a derogatory comment about Mr.
Hrabolowski's parking. (N.T. 15, 37). After Defendant Hughes made
his comment to Mr. Hrabolowski, Mr. Hrabolowski proceeded into the
post office. (N.T. 15-16). As he was in the post office, Mr. Hrabolowski
observed Defendant Hughes turn his bicycle around and head towards
his vehicle. (N.T. 17, 40). As Mr. Hrabolowski left the post office and
walked back towards his vehicle, he saw Defendant Hughes grab his
heavy steel, D-shaped bicycle lock, approach his vehicle and strike his
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driver side view mirror, breaking it. (N.T. 17-18, 39-40). Mr.
Hrabolowski asked Defendant Hughes why he broke his mirror. (N.T.
18). In response to the question, and as Mr. Hrabolowski approached
Hughes, Defendant Hughes got off his bike and began swinging the
lock at Mr. Hrabolowski, coming within two (2) to three (3) feet of
him, before leaving the area. (N.T. 18-19).
Mr. Hrabolowski immediately called the police and reported what
had happened. (N.T. 19-20, 41). Although he was told to wait for the
police to arrive, Mr. Hrabolowski decided to drive to his nearby
apartment to have his roommate accompany him when he spoke with
the police. (N.T. 20-21, 44-45). As he was heading home, Mr.
Hrabolowski was again confronted by Defendant Hughes, who got off
his bicycle and again approached Mr. Hrabolowski, waving his bicycle
lock at him. (N.T. 44-46).
Mr. Hrabolowski picked up his roommate, the second victim,
John Szwaczkowski, at their home and then headed back towards the
post office. (N.T. 22-23, 47-48). As he was driving towards the post
office, he saw the Defendants on their bicycles. (N.T. 24, 48). Mr.
Hrabolowski stopped his car, opened the car door, and had his leg out
to exit, while telling the Defendants that they needed to stay where
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they were because the police were on their way. (N.T. 23-26). As Mr.
Hrabolowski was telling the Defendants to remain until the police
arrived, Defendant Hughes began approaching him, again swinging the
bike lock. (N.T. 26, 98-101). As Defendant Hughes got closer to the
vehicle, Mr. Szwaczkowski, who had previously exited the car and had
been standing next to the open passenger door, came around the back
of the vehicle to tell Mr. Hrabolowski to remain in the vehicle. (N.T.
26-27, 70-71, 101). Before he moved to the driver's side of the
vehicle, Mr. Szwaczkowski saw that both Defendants had bike locks in
their hands, (N.T. 70, 98-101).
As Mr. Szwaczkowski was turned toward Mr. Hrabolowski to tell
him to remain in the car, Defendant Hughes struck Mr. Szwaczkowski
on the back of the head with the bike lock. (N.T. 28, 71-72, 102-103).
Mr. Szwaczkowski stumbled against the car and eventually fell to the
ground on the other side of the car. (N.T. 28, 72-73, 103-104). As
Defendant Hughes stood over him with his bike lock, appearing ready
to strike him again, Mr. Hrabolowski grabbed Defendant Hughes' bike
lock in an effort to prevent Defendant Hughes from striking his friend
again. (N.T. 28, 73). As he was holding onto the bike lock in
Defendant Hughes' hands, Defendant Feli began to strike him on his
arms, attempting to break Mr. Hrabolowski's grip on Defendant
..
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Hughes' bike lock. (N.T. 28-30). Mr. Hrabolowski testified that he
suffered bruising on his arms as a result of being struck by Defendant
Feli's bike lock. (N.T. 30-31).
Defendant Hughes, as he straddled his bicycle, struck Mr.
Szwaczkowski in his ribs repeatedly with his front tire. (N.T. 32, 73,
105-108). Defendant Feli also used her bike lock to strike Mr.
Szwaczkowski in the shoulder, neck and head as he lay on the ground.
(N.T. 74-75, 109, 117). As Mr. Szwaczkowski struggled to free
himself, he bit Defendant Hughes in the leg, after which the assault
abruptly stopped, and the Defendants fled the area on their bicycles.
(N.T. 32, 75-76, 108-109).
John Szwaczkowski was taken from the scene by medics to
Mercy Hospita I, where he was admitted for four ( 4) days, having
suffered a concussion, a laceration on his head that required four ( 4)
staples to close, five (5) broken ribs and other bruising. (N.T. 77-78).
Photographs of his injuries, taken while he was at the hospital, were
admitted into evidence. (See Commonwealth Exhibits 5-30). This
court would also note that the injury to Mr. John Szwaczkowski's head
was clearly visible to, and easily noticed by, this court when Mr.
Szwaczkowski testified during the non-jury trial, a fact mentioned by
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the court during the sentencing of each Defendant. (See Hughes
Sentencing Transcript, 7-S;Feli Sentencing Transcript, 20).
The Defendants testified that they were simply defending
themselves from the victims. (N.T. 142-144, 206-208). Both
Defendants agreed that Defendant Hughes' bike lock was nine (9)
inches in length and made of metal and that Defendant Feli's lock was
seven (7) inches in length and also made of metal. (N.T. 152, 215).
Defendant Feli denied ever striking anyone with a bike lock, claiming
that her only involvement was when she punched Mr. Hrabolowski in
the arms because he would not let go of her bicycle. (N.T. 146-150).
Despite the Defendants' claims that they acted in self-defense, neither
Defendant Feli nor Defendant Hughes called the police until four ( 4)
days after this incident. (N.T. 149).
Both Defendants challenged the sufficiency of the evidence and
the weight of the evidence. Before turning to the specific offenses, the
court would note that the well-established test for a challenge to the
sufficiency of the evidence is whether the evidence, taken in the light
most favorable to the Commonwealth as verdict winner, establishes
each and every element of the offenses charged beyond a reasonable
doubt. Commonwealth v. Noel Matos Montalvo, 956 A.2d 926, 932
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(Pa. 2008). The Commonwealth is entitled to all reasonable inferences
from the evidence, and it must be remembered that credibility
determinations are for the fact finder. A challenge to the credibility of
a witness is not a basis for a claim that the evidence was insufficient.
A fact-finder is free to believe some, all or none of the testimony of
any witness presented by either party and to accept or reject any
evidence submitted by either party. Commonwealth v. Cousar, 928
A.2d 1025, 1033 (Pa. 2007).
When reviewing a claim that the verdict was against the weight
of the evidence, it must be remembered that "[t]he weight of the
evidence is exclusively for the finder of fact who is free to believe all,
part, or none of the evidence and to determine the credibility of the
witnesses. An appellate court cannot substitute its judgment for that of
the finder of fact. Thus, we may only reverse the jury's verdict if it is
so contrary to the evidence as to shock one's sense of justice."
Commonwealth v. Begley, 780 A.2d 605, 619 (Pa. 2001).
When a judge sits as fact-finder in a non-jury trial:
[A] judge's role ... is not equivalent to his or her role with
respect to post-trial motions. During trial, the province of a
trial judge sitting without a jury is to do what the jury is
required to do, namely, consider all the evidence; reconcile
contradictions and discrepancies in the testimony, if
possible; dismiss what is incredible; and, from all that is
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presented, assemble a logical, continuous account which
rings with verisimilitude, appeals to reason and convinces
the judgment that the controverted event occurred in that
and in no other manner. Commonwealth v. Lemons, 404
Pa. 263, 268, 171 A.2d 785, 788 (1961). With respect to
post-trial motions, however, the trial judge's role is to
consider and rectify, if necessary, alleged trial errors.
Commonwealth v. Nock, 414 Pa.Super. 326, 333, 606 A.2d
1380, 1383 (1992). When considering a post-verdict
motion in arrest of judgment or the granting of a new trial,
"the trial court cannot alter the verdict based upon a
redetermination of credibility or a re-evaluation of
evidence." Id. at 334, 606 A.2d at 1384.
Commonwealth v. Johnson, 631 A.2d 639, 643 (Pa. Super. 1993).
Accordingly, in assessing a challenge to the weight of the evidence, a
judge may not revisit credibility determinations it made when
rendering its verdict and may not re-weigh the evidence.
COUNT 4- CRIMINAL CONSPIRACY
To sustain a conviction for criminal conspiracy, the
Commonwealth must prove, beyond a reasonable doubt, the presence
of the following elements: 1) an intent to commit or aid in an unlawful
act; 2) an agreement with a co-conspirator; and 3) an overt act in
furtherance of the conspiracy. 18 Pa. C.S.A. § 901.
Because it is difficult to prove an explicit or formal
agreement to commit an unlawful act, such an 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. Galinves, 786 A.2d 1004, 1010 (Pa. Super. 2001).
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The Defendants contend that the evidence was insufficient to
establish the existence of a conspiratorial agreement. They also claim
the verdict was against the weight of the evidence. Neither claim has
any merit.
While there was no direct evidence of a conspiratorial agreement
between the Defendants, the Commonwealth introduced sufficient
circumstantial evidence to support a conviction for conspiracy. The
law is clear that:
Circumstantial evidence can include, but is not limited
to, the relationship between the parties, the knowledge
of and participation in the crime, and the circumstances
and conduct of the parties surrounding the criminal
episode. Commonwealth v. French, 396 Pa.
Super.436, 578 A.2d 1292, 1294 (1990). These factors
may coalesce to establish a conspiratorial agreement
beyond a reasonable doubt where one factor alone
might fail. Id.Commonwealth v. Thoeun Tha, 64 A.3d 704, 710 (Pa. Super. 2013).
While it is true that there was no evidence of an explicit or
stated agreement between the parties, the evidence clearly
established that they were jointly participating in this crime and that
there was a tacit understanding between them. The evidence proved
that there was an association between these Defendants and that they
were together before, during, and after the two (2) incidents involving
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these victims. The evidence also established that both had knowledge
of the offenses committed by the other conspirator.
Defendant Feli was present when Defendant Hughes knocked the
mirror off of Mr. Hrabolowski's vehicle. (N.T. 17-18). When the
Defendants encountered the victims again, Defendant Feli was present
when Defendant Hughes began the assault on the two (2) victims.
(N.T. 24-26). She then joined him in the assault, striking John
Hrabolowski on the arms to break his grip on the bicycle lock Hughes
was using in the assault (N.T. 28-30) and then striking John
Szwaczkowski, the second victim, about the head and neck as he lay
on the ground attempting to defend himself from Defendant Hughes'
attack. (N.T. 74-75, 109, 117). Also, the Defendants left the scene of
the attack together. (N.T. 32-33). These facts were sufficient to
establish a criminal conspiracy between the Defendants in this matter,
with the object of that conspiracy being the assault on these victims.
In Commonwealth v. French, 578 A.2d 1292, 1294 (Pa. Super.
1990), the Superior Court found the evidence sufficient to prove
conspiracy to commit aggravated assault where the appellant and a
group of relatives and friends approached the victim together, knocked
the victim to the ground, continued to beat the victim and attacked the
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Pol Q(\J ")~·
police when they arrived. Similarly, in Commonwealth v.-Polen, T
A.3d 518, 519-520 (Pa. Super. 2011). The Superior Court affirmed a
finding that the evidence was sufficient to support an aggravated
assault conviction where the appellant and a group of individuals
approached the victims as a group, battered the victim's face,
knocking out a tooth, and fled the scene together. In neither of those
cases was there evidence of a stated or explicit agreement; the
agreement was inferred from the circumstances.
The facts in this case are markedly similar. The Defendants
were together during the initial encounter between the victim and John
Hrabolowski. (N.T. 14-16). They remained together when they
encountered him and the second victim a few minutes later (N.T. 24-
26), and both participated in the assaults on both victims, assisting
one another in doing so. (N.T. 28-30, 32, 73-75). Both also fled the
scene of the attack together. (N.T. 32-33). This was sufficient to
prove the conspiratorial agreement and the required shared intent.
The actual assaults were clearly the overt acts. Accordingly, the
challenge to the sufficiency of the evidence as to the charges of
Criminal Conspiracy was properly rejected by this court.
13
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Similarly, the challenge to the weight was also properly rejected.
This court's verdict turned on an assessment of the credibility of the
witnesses, an assessment that was unfavorable to the Defendants. To
put it simply, where the testimony of the Defendants conflicted with
the testimony of the victims, this court believed the testimony of the
victims over that of the Defendants. This court is not only without the
power to revisit credibility determinations, it would not, if it had that
power, change them. The court found the victims to be believable and
credible, whereas the testimony of the Defendants lacked that "ring of
truth" necessary for this court to believe their testimony. The verdict
was not against the weight of the evidence as to the charge of criminal
conspiracy.
COUNTS 2 & 3
AGGRAVATED ASSAULT- ASSAULT WITH A DEADLY WEAPON
It is axiomatic that a defendant who is not a principal actor in
committing a crime may, nevertheless, be liable for the crime if he was
an accomplice of the principal actor. Commonwealth v. Bradley, 392
A.2d 688, 690 (Pa. Super. 1978). A defendant can also be liable for
the acts of another by virtue of their conspiracy. "Once the trier of
fact finds that there was an agreement and the defendant intentionally
entered into the agreement, that defendant may be liable for the overt
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acts committed in furtherance of the conspiracy regardless of which
co-conspirator committed the act." Commonwealth v. Murphy, 844
A.2d 1228, 1238 (Pa. 2004). Accordingly, either Defendant here can
be held criminally liable for the acts of the other Defendant if those
acts were done in furtherance of the criminal conspiracy. Both
Defendants contend that the evidence was insufficient as to the
Aggravated Assault charges found at counts 2 and 3. Count 2 charged
Aggravated Assault -Assault with a Deadly Weapon as to John
Hrabolowski, while count 3 charged the same as with regard to John
Szwaczkowski.
Turning first to Count 2, the evidence established that Defendant
Feli struck this victim several times on his arms with her heavy, metal
bicycle lock. (N.T. 28-30, 152). Mr. Hrabolowski suffered pain and
bruising in the areas where he was struck. (N.T. 30-31). The lock
constituted a deadly weapon pursuant to Pennsylvania law, which
defines a deadly weapon 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). A
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'·
heavy blunt object, like a seven (7) · inch long metal bicycle lock, is
capable of producing death or serious bodily injury. In this case, a
similar lock wielded by Defendant Hughes actually caused serious
bodily injury to John Szwaczkowski. (N.T. 77-78; Commonwealth
Exhibits 5-30). Obviously, then, Defendant Feli's bike lock was
capable of doing the same to Mr. Hrabolowski.
The evidence also established that, at minimum, the victim
suffered bodily injury. He testified that he suffered substantial pain,
and he had bruising on his arms. (N.T. 30-31). In Commonwealth v.
ct
Goins, 501 A.2d 27k'(Pa. Super. 1985), the Superior Court held that
bruising and scratching was sufficient to establish that the victim
3
suffered bodily injury. Accordingly, the evidence was sufficient to
prove the Defendant Feli guilty of this offense as a principal. The
verdict was also not against the weight of the evidence.
Because Defendant Hughes, as a result of his involvement in the
criminal conspiracy to assault the victims and as Defendant Feli's
accomplice, is responsible for the crimes committed by his co-
conspirator in furtherance of their conspiracy, his challenge to the
sufficiency and weight of the evidence as to Count 2 is likewise without
3
As the Court will set forth later in this Opinion, the evidence was also sufficient to establish that
Defendant Feli attempted to cause serious bodily injury to the victim Hrabolowski when she struck him
repeatedly with the bicycle lock.
16
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merit. Her assault was in furtherance of the object of the
conspiratorial agreement, the assault of the victims.
The evidence was also sufficient as to Count 3 as to Defendant
4
Feli both as a principal and as Defendant Hughes' co-conspirator.
Because she was Defendant Hughes' accomplice and co-conspirator,
she could be found guilty of any act committed by Defendant Hughes
in furtherance of the conspiracy. Defendant Hughes struck John
Szwaczkowski in the head, causing a skull fracture and concussion and
leaving him with a visible indentation in his head. (N.T. 28, 71-72, 77-
78, 102-103; Hughes Sentencing Transcript 7-8; Feli Sentencing
Transcript 20). Defendant Hughes also struck Mr. Szwaczkowski in the
ribs with his bicycle, breaking five of them. (N.T. 32, 73, 105-108, 77-
78). This was certainly sufficient to establish his guilt of aggravated
assault- assault with a deadly weapon and, because Defendant Feli
was his co-conspirator and/or accomplice, it was sufficient to establish
her guilt as well.
Defendant Feli was also guilty as a principal for her conduct in
striking this victim as he lay on the ground. Though she denied
striking him with her lock, and Mr. Szwaczkowski admitted that he did
4
Defendant Hughes did not challenge the verdict of guilty at this Count of his information.
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not actually see her do so, the circumstantial evidence was sufficient
to prove that she did. The victim testified that he was struck in his
back and around his head and neck as he lay on the ground. (N.T. 74-
75, 109, 117). The only other person present wielding a bike lock,
Defendant Hughes, could not have hit him as he and Mr. Hrabolowski
were struggling over control of his bike lock. (N.T. 28, 73). It was a
reasonable inference, therefore, that the blows Mr. Szwaczkowski felt
came from Defendant Feli.
COUNT 1- AGGRAVATED ASSAULT
The Defendants both challenge the sufficiency and weight of the
evidence as to Count 1, which charged them with aggravated assault
under subsection (a)(l). This required proof that the Defendants,
through their own actions or through the actions of another for whom
they would be legally responsible, attempted to cause, or intentionally,
knowingly or recklessly caused serious bodily injury to John
Hrabolowski.
This victim, John Hrabolowski, was not as seriously injured as
John Szwaczkowski. He reported bruises on his arms. (N .T. 30-31).
This was not sufficient to establish that he actually suffered serious
bodily injury. The fact that the injury was caused by the Defendant
18 [
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"·
Feli striking him, repeatedly, with the heavy bike lock, however, was
enough to prove an attempt to do so. The Superior Court in
Commonwealth v. Eddowes, 580 A.2d 769, 773 (Pa. Super. 1990),
observed: "The fact that appellant did not cause any serious injury is
irrelevant, as the statute punishes attempts as well as completed
assaults. 18 Pa.CS.A. § 2702(a)."
To determine whether an assailant possessed the intent to inflict
serious bodily injury, the totality of the circumstances surrounding the
assault must be considered. Commonwealth v. Alexander, 383 A.2d
887, 889 (Pa. 1978). Among the circumstances that can be considered
is whether an instrument capable of causing serious bodily injury was
used in the attack. Here, a deadly weapon, as has been previously
discussed, namely, the bicycle lock, was used in the attack.
In Eddowes, supra, the defendant slashed at the victim with a
knife, but did not cut him. That behavior was enough to justify his
conviction at this same statutory section. Here, the Defendant Feli
swung at, and actually struck, the victim with a weapon capable of
causing death or serious bodily injury. (N.T. 28-30). She hit him
several times, according to the testimony. (N.T. 28-30). In fact, she
did so after seeing her co-Defendant strike the other victim with the
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bike lock in the head, knocking him to the ground and causing him to
bleed profusely. (N.T. 28). She actually witnessed the infliction of
serious bodily injury by the heavy bike lock that she wielded before
she used her nearly identical bike lock to strike repeatedly at John
Hrabolowski in his arms. She did this while he was simultaneously
engaged with her co-Defendant, trying to stop further attacks on his
roommate, Mr. Szwaczkowski. (N.T. 28-30). The court is satisfied that
her repeated blows, with a deadly weapon, were sufficient to prove
that her intent was to cause serious bodily injury. As the evidence
was sufficient to prove her guilt as a principal for her acts in striking
the victim, it was likewise sufficient to prove her co-Defendant guilty
of the same offense as her co-conspirator and/or accomplice. The
court also does not believe that the verdict was against the weight of
the evidence as to either Defendant at this count.
SENTENCING
Finally, both Defendants have challenged the sentences imposed
by this court. Trial courts have broad discretion in setting sentences.
Sentencing is a matter vested within the sound discretion of the
sentencing judge and will not be disturbed on appeal absent a
manifest abuse of discretion. Com. v. Mouzon, 828 A.2d 1126, 1128
(Pa. Super. 2003). To constitute an abuse of discretion, the sentence
/ ;·
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imposed must either exceed the statutory limits or be manifestly
excessive. Com. v. Gaddis, 639 A.2d 462, 469 (Pa. Super. 2003). An
abuse of discretion is not merely shown by an error in judgment, but
rather by establishing that the sentencing court ignored or misapplied
the law, exercised its judgment for reasons of partiality, prejudice,
bias or ill will, or arrived at a manifestly unreasonable decision.
Mouzon, supra, at 1128. In determining whether a sentence is
manifestly excessive, the appellate court must give great weight to the
sentencing court's discretion, as the court is in the best position to
measure factors such as the nature of the crime, the defendant's
character, and the defendant's display of remorse, defiance or
indifference. Com. v. Ellis, 700 A.2d 948, 958 (Pa. Super. 1997).
Where an excessiveness claim is based on a court's sentencing
outside of the standard guideline ranges, an appellate court looks, at a
minimum, for an indication on the record that the sentencing court
understood the suggested sentencing range. Com. v. Rodda, 723 A.2d
212, 214 (Pa. Super. 1999). When the court so indicates, it may
deviate from the guidelines to fashion a sentence which takes into
account the protection of the public, the rehabilitative needs of the
defendant, and the gravity of the particular offenses as it relates to the
impact on the victim and the community, so long as the court also
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states the factual basis and specific reasons to deviate from the
guidelines. Mouzon, supra, at 1128. Sentencing guidelines are merely
advisory, and the sentencing court may sentence a defendant outside
of the guidelines so long as it places its reasons for deviation on the
record. Com. v. Cunningham, 805 A.2d 566, 575 (Pa. Super. 2002).
In setting a sentence, a court has discretion to run the sentence
concurrently with or consecutively to other sentences being imposed.
Mouzon, supra, at 1130. The Superior Court has expressed concern
that running sentences concurrently as a matter of habit can give a
defendant a "volume discount" for separate criminal acts. Com. v.
Hoag, 665 A.2d 1212, 1214 (Pa. Super. 1995).
Defendant Hughes claims that his sentence was an abuse of
discretion because his prior record score was calculated using
convictions that occurred nine (9) and ten (10) years ago and because
the sentence did not "properly reflect the nature of the offense, the
impact on the victim or the rehabilitative needs of the defendant."
This claim is specious. How a prior record score is calculated is set by
statute and regulation. (See 42 Pa. C.S.A. §9721 (b) and 204 Pa.
Code §303.1, et seq.) The age of the prior offenses that determine
the prior record score is not taken into account in determining that
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score. While a court may consider the age of the offenses that
resulted in the prior record score in determining what sentence to
impose, the Defendant's claim that the court erred in utilizing those
older convictions to calculate the prior record score is without merit.
To the extent that the Defendant is claiming that the age of the
convictions warranted a lesser sentence, that claim is likewise without
merit. These prior convictions were not offenses committed decades
ago, when the Defendant was barely an adult; having been born in
1978, he was in his mid to late-twenties when he committed those
offenses. They occurred less than ten (10) years prior to this violent
incident, and the court gave them proper consideration in formulating
the sentence.
Defendant Hughes also generally complains that the sentence
was an abuse of discretion. He does not explain with any specificity
why the sentence was supposedly an abuse of this court's broad
sentencing discretion. Defendant Hughes simply states that the
sentence imposed did not "properly reflect the nature of the offense,
the impact on the victim or the rehabilitative needs of the defendant."
Simply mimicking the language of the sentencing code does not
provide the court with an explanation for "why" the sentence failed to
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comply with the sentencing code. In Commonwealth v. Bullock, 948
A.2d 818 (Pa. Super. 2008), the court held that, where the defendant
claimed that the sentence " ... was unduly harsh given the nature and
the circumstances of the case ... [and] was inconsistent with the
Sentencing Act which provides for the balancing of the welfare of the
community with the rehabilitative needs of the Appellant ... ," failed to
preserve, for appellate review, a challenge to the discretionary aspect
of the sentence. The Defendant's claim here similarly fails to explain
how the court abused its discretion. Other than the incorrect claim
that the court should not have considered nine (9) and ten (10) year
old convictions in calculating his prior record score, Defendant Hughes
has cited to no specific provision of the sentencing act this court
supposedly violated. Accordingly, the sentencing claims should be
considered waived.
To the extent that the claims are not deemed waived, the court
set forth, at length, on the record, why it imposed the standard range
sentence it did. (Hughes' Sentencing Transcript, 24-28). The court
could very well have imposed standard range sentences at all but one
of the other counts, but, instead, imposed probationary sentences.
The court is satisfied that the sentence imposed on the Defendant
Hughes was the appropriate sentence given the severity of the
24 l~----:.,)'
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offenses, the impact on the victim and the rehabilitative needs of the
Defendant.
Defendant Feli claims that court failed to properly consider the
factors required by the sentencing code. The record of the trial and
sentencing hearing belies this claim. The suggestion that Defendant
Feli had a "limited role" in the incident is contrary to the facts that the
Commonwealth established at trial. While Defendant Feli described
her role as limited, this court, in rendering its verdict, concluded
otherwise. She struck both victims with her bicycle lock, hitting Mr.
Hrabolowski repeatedly in the arms and hitting Mr. Szwaczkowski in
his back, neck and head. She assisted her co-Defendant in his
assaults on both victims. The Defendant's insistence that she played a
"limited role" in these assaults when she spoke at the sentencing
hearing, contrary to the- evidence presented at trial and the verdicts
this court rendered, was a large factor in causing this court to impose
the sentence it did. The court explained:
THE COURT: I've been tossing around sentences in my
mind for the last two weeks for you. Some ranged from
things that you would very much like, to some things you
would not much like. My sort of Jina I decision is I always
need to hear what people say at the time of sentencing.
And what you have said today, quite frankly, to me does
not err on the side of giving you time served and letting
you go back to Connecticut at this point in time. Because I
don't think you fully realize what you did in this situation.
I don't think you fully comprehend your actions here. You
,fr.
25 ,..,.,. )'
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weren't a puppet on a string. You weren't a programmed
robot. You are a person who has free will, who is able to
exercise that free will to do the right thing. And you failed
to do that here today and on that day.
(Feli Sentencing Transcript, 23-24). The court properly considered this
Defendant's substantial role in this incident. (Feli Sentencing
Transcript, 19-24).
The court also considered the impact on the victims and the
need for the protection of society, as well as the rehabilitative needs of
Defendant Feli. The harm to each victim was considered by the court
and mentioned by the court at the sentencing hearing. The court also
noted that it had received, read and considered several letters
provided on the Defendant's behalf. The availability of rehabilitative
programs at the state prison was also discussed.
The minimum sentence of incarceration imposed at Count 1,
twenty-four (24) months, was near the bottom of the standard range
of twenty-two (22) to thirty-six (36) months. No other sentence of
incarceration was imposed on the other counts, even though some of
those involved a second victim. The court properly weighed the
statutory sentencing factors and imposed a sentence that was
consistent with the protection of society, the severity of the offense,
the impact of the offense on the victims and the rehabilitative needs of
26
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Defendant Feli. The court did not abuse its discretion when it imposed
sentence.'
Given that there was sufficient, credible evidence to support the
convictions of the Defendants as to all counts, and that this court
sentenced in the standard range for both Defendants after considering
the severity of the offenses, the impact on the victims, the protection
of society and the needs of the Defendants, this court's convictions
and sentences of both Defendants should be upheld.
BY THE COURT:
Date:
27