Com. v. Hughes, W. ( 2015 )

J-A23002-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
WILLIAM HUGHES, :
:
Appellant : No. 1779 WDA 2013
Appeal from the Judgment of Sentence entered on July 16, 2013
in the Court of Common Pleas of Allegheny County,
Criminal Division, No. CP-02-CR-0009919-2012
BEFORE: GANTMAN, P.J., LAZARUS and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.: FILED SEPTEMBER 24, 2015
William Hughes (“Hughes”) appeals from the judgment of sentence
imposed after he was convicted of three counts of aggravated assault and
one count each of criminal conspiracy and criminal mischief.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 Hughes and his co-defendant, Sherryl Feli (“Feli”). 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 Hughes with one
count each of criminal conspiracy, criminal mischief and aggravated assault
– serious bodily injury (hereinafter “aggravated assault – SBI”), and two
1
See 18 Pa.C.S.A. §§ 2702(a)(1), (4); 903(a)(1); 3304(a)(5).
J-A23002-15
counts of aggravated assault – deadly weapon used (hereinafter “aggravated
assault – DW”), pertaining to his assaults upon Hrabolowski and
Szwaczkowski, respectively.
The matter proceeded to a non-jury trial, after which the trial court
found Hughes guilty on all counts.2 On July 16, 2013, the trial court
imposed an aggregate sentence of 7½ to 15 years in prison, followed by ten
years of probation. Hughes filed a post-sentence Motion, which the trial
court denied. Hughes thereafter timely filed a Notice of Appeal, and a
Pa.R.A.P. 1925(b) Concise Statement of Errors Complained of on Appeal.
On appeal, Hughes presents the following issues for our review:
1. Did the trial court err in convicting [] Hughes of the
offenses against [] Hrabolowski (counts one and two,
aggravated assault [– SBI, and aggravated assault –
DW),] when the evidence was insufficient to sustain a
conviction at these counts and in spite of the weight of
the evidence when [] Hughes did not have physical
contact with [] Hrabolowski?
2. Did the trial court err in convicting [] Hughes of criminal
conspiracy [], when the evidence was insufficient to
sustain [this] conviction [] and in spite of the weight of
the evidence, when no evidence suggested that []
Hughes directed [] Feli in her actions against []
Hrabolowski?
3. Did the trial court err in sentencing [] Hughes to a term
of incarceration that was manifestly excessive and
without consideration of [] Hughes’[s] rehabilitative
needs?
Brief for Appellant at 3.
2
The trial court found Feli guilty of essentially the same charges as Hughes.
She also filed a direct appeal, docketed before this panel at 1672 WDA 2013.
-2-
J-A23002-15
Hughes first challenges the sufficiency of the evidence supporting his
convictions of (1) aggravated assault – SBI; and (2) aggravated assault –
DW, concerning his assault of Hrabolowski. Id. at 8-10. Hughes also
argues, in a single sentence, that both of these convictions are against the
weight of the evidence. Id. at 10. We will address Hughes’s challenges to
each of these convictions separately.
We apply the following standard of review when considering a
challenge to the sufficiency of the evidence:
The standard we apply … is whether[,] viewing all the evidence
admitted at trial in the light most favorable to the verdict winner,
there is sufficient evidence to enable the fact-finder to find every
element of the crime beyond a reasonable doubt. In applying
the above test, we may not weigh the evidence and substitute
our judgment for [that of] the fact-finder. In addition, we note
that the facts and circumstances established by the
Commonwealth need not preclude every possibility of innocence.
Any doubts regarding a defendant’s guilt may be resolved by the
fact-finder unless the evidence is so weak and inconclusive
that[,] as a matter of law[,] no probability of fact may be drawn
from the combined circumstances. The Commonwealth may
sustain its burden of proving every element of the crime beyond
a reasonable doubt by means of wholly circumstantial evidence.
Moreover, in applying the above test, the entire record must be
evaluated and all evidence actually received must be considered.
Finally, the finder of fact[,] while passing upon the credibility of
witnesses and the weight of the evidence produced, is free to
believe all, part or none of the evidence.
Commonwealth v. Melvin, 103 A.3d 1, 39-40 (Pa. Super. 2014) (citation
omitted).
Our standard in reviewing a weight of the evidence claim is as follows:
Appellate review of a weight claim is a review of the exercise of
discretion, not of the underlying question of whether the verdict
is against the weight of the evidence. Because the trial judge
-3-
J-A23002-15
has had the opportunity to hear and see the evidence presented,
an appellate court will give the gravest consideration to the
findings and reasons advanced by the trial judge when reviewing
a trial court’s determination that the verdict is against the weight
of the evidence. One of the least assailable reasons for granting
or denying a new trial is the lower court’s conviction that the
verdict was or was not against the weight of the evidence and
that a new trial should be granted in the interest of justice.
Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013) (emphasis and
citations omitted).
Relief on a weight of the evidence claim is reserved for
extraordinary circumstances, when the [fact-finder’s] verdict is
so contrary to the evidence as to shock one’s sense of justice
and the award of a new trial is imperative so that right may be
given another opportunity to prevail. On appeal, [an appellate]
Court cannot substitute its judgment for that of the [fact-finder]
on issues of credibility, or that of the trial judge respecting
weight. Our review is limited to determining whether the trial
court abused its discretion[.]
Commonwealth v. Sanchez, 36 A.3d 24, 27 (Pa. 2011) (citations and
quotation marks omitted).
Hughes first challenges his conviction of aggravated assault – DW,
pertaining to Hrabolowski,3 arguing that he cannot be properly convicted of
this offense based upon a theory of accomplice liability.4 See Brief for
Appellant at 10 (emphasizing that “Hughes never interacted with []
Hrabolowski during the physical altercation[,]” and asserting that “no
3
Hughes does not challenge his conviction of aggravated assault – DW
pertaining to Szwaczkowski.
4
Though Hughes does not specifically so state, his argument implies that he
does not believe he was properly convicted as Feli’s accomplice/co-
conspirator. We discuss separately Hughes’s challenge to his conviction of
conspiracy to commit aggravated assault.
-4-
J-A23002-15
testimony was presented at trial to suggest that [] Hughes was directing []
Feli in any way[.]”). Hughes argues that the evidence was insufficient, and
this conviction was against the weight of the evidence, because the bicycle
lock used by Feli to strike Hrabolowski on his forearms was not a “deadly
weapon” under the statutory definition of this term. Id. Hughes asserts
that “[t]he bicycle lock used by [] Feli cannot be considered a deadly
weapon, as it was not used to inflict serious bodily injury or in a manner that
might have resulted in a risk of serious bodily injury or death. … Hughes
should not be liable for [] Feli’s own actions toward [] Hrabolowski.” Id.The Crimes Code provides that a person is guilty of aggravated assault
– DW if he or 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, in the context 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.”
5
Bodily injury is defined as “[i]mpairment of physical condition or
substantial pain.” 18 Pa.C.S.A. § 2301.
-5-
J-A23002-15
Commonwealth v. Rhoades, 2010 PA Super 204, 8 A.3d 912,
917 (Pa. Super. 2010) (intact glass bottle qualified as a deadly
weapon). We found many examples in our cases: ...
Commonwealth v. Scullin, 414 Pa. Super. 442, 607 A.2d 750(Pa. Super. 1992) (tire iron thrown at victim was a deadly
weapon); Commonwealth v. Cornish, 403 Pa. Super. 492, 589
A.2d 718, 721 (Pa. Super. 1991) (fireplace poker used to strike
victim constitutes a deadly weapon); Commonwealth v.
Brown, 402 Pa. Super. 369, 587 A.2d 6, 7 (Pa. Super. 1991)
(saw used to stab victim was a deadly weapon);
Commonwealth v. Chapman, 365 Pa. Super. 10, 528 A.2d
990 (Pa. Super. 1987) (straightedge razor placed at the face of
an individual is a deadly weapon).
Commonwealth v. Buterbaugh, 91 A.3d 1247, 1268 (Pa. Super. 2014)
(en banc).6
Concerning accomplice liability, the Crimes Code provides that “[a]
person is legally responsible for the conduct of another person when he is an
accomplice of such other person in the commission of the offense.” 18
Pa.C.S.A. § 306(b)(3). Section 306 defines an accomplice, in relevant part,
as follows:
A person is an accomplice of another person in the commission
of an offense if:
(1) with the intent of promoting or facilitating the
commission of the offense, he:
(i) solicits such other person to commit it; or
(ii) aids or agrees or attempts to aid such other
person in planning or committing it[.]
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.
-6-
J-A23002-15
Id. § 306(c)(1). “[These] requirements may be established wholly by
circumstantial evidence. Only the least degree of concert or collusion in the
commission of the offense is sufficient to sustain a finding of responsibility
as an accomplice. No agreement is required, only aid.” Commonwealth v.
Knox, 50 A.3d 749, 755 (Pa. Super. 2012) (citation omitted). “[P]roof of a
criminal partnership is almost invariably extracted from the circumstances
that attend its activities.” Id. at 755-56 (citation omitted).
In its Opinion, the trial court addressed Hughes’s claims and the
applicable law, concluding that the evidence was sufficient to sustain
Hughes’s conviction, as Feli’s co-conspirator and accomplice, of aggravated
assault – DW. See Trial Court Opinion, 10/21/14, at 15-17; 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 Hughes’s sufficiency challenge. See Trial Court
Opinion, 10/21/14, at 15-17.
Concerning Hughes’s claim that his conviction of aggravated assault –
DW was against the weight of the evidence, he has failed to develop his
claim in any meaningful fashion, and, therefore, we could deem it waived.
See Umbelina v. Adams, 34 A.3d 151, 161 (Pa. Super. 2011) (stating that
“[w]here an appellate brief fails to provide any discussion of a claim with
citation to relevant authority or fails to develop the issue in any other
meaningful fashion capable of review, that claim is waived.” (citation
-7-
J-A23002-15
omitted)); Pa.R.A.P. 2119(a). Nevertheless, we discern no abuse of
discretion by the trial court in rejecting Hughes’s weight of the evidence
claim. See Trial Court Opinion, 10/21/14, at 16. The trial court’s verdict is
not so contrary to the evidence as to shock our collective sense of justice.
See Sanchez, supra.
Next, Hughes challenges the sufficiency and weight of the evidence
supporting his conviction of aggravated assault – SBI, advancing the same
arguments that he did in the above-discussed claim. See Brief for Appellant
at 8-10. Hughes additionally argues that “[a]lthough [Feli’s] action[s in
striking Hrabolowski on the arms with her bike lock] caused some injury, []
Hrabolowski testified that he did not seek medical treatment for this injury,
thereby indicating that he did not believe his injury serious enough that
there was a substantial risk of permanent disfigurement or impairment.” Id.
at 10. Though Hughes does not explicitly raise this argument, he appears to
challenge the trial court’s finding that Feli, his accomplice, had inflicted, or
attempted to inflict, “serious bodily injury” upon Hrabolowski, a requisite
element of the offense. Id.
A person is guilty of aggravated assault – SBI if she “attempts to
cause serious bodily injury[7] to another, or causes such injury intentionally,
knowingly or recklessly under circumstances manifesting extreme
7
“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.
-8-
J-A23002-15
indifference to the value of human life[.]” 18 Pa.C.S.A. § 2702(a)(1)
(footnote added). “Aggravated assault [– SBI] does not require proof that
serious bodily injury was inflicted[,] but only that an attempt was made to
cause such injury. Where the victim does not sustain serious bodily injury,
the Commonwealth must prove that the appellant acted with specific intent
to cause serious bodily injury.” Commonwealth v. Lewis, 911 A.2d 558,
564 (Pa. Super. 2006) (citations omitted); see also 18 Pa.C.S.A. § 901(a)
(providing that “[a] person commits an attempt when, with intent to commit
a specific crime, [s]he does any act which constitutes a substantial step
toward the commission of that crime.”).
“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 suffer
“serious bodily injury” under the statutory definition of this term.
-9-
J-A23002-15
Accordingly, the relevant inquiry is whether Feli attempted and intended to
inflict serious bodily injury upon Hrabolowski. See Matthew, supra.
In its Opinion, the trial court addressed Hughes’s claims and concluded
that (1) the evidence was sufficient to establish that Feli had attempted and
intended to inflict serious bodily injury upon Hrabolowski; (2) the verdict as
to this count was not against the weight of the evidence; and (3) therefore,
Hughes could properly be convicted of aggravated assault – SBI as Feli’s
accomplice. 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
with regard to Hughes’s claims. See id.
In his second issue, Hughes argues that the evidence was insufficient
to sustain his conviction of criminal conspiracy to commit aggravated
assault, and the verdict as to this count was against the weight of the
evidence. See Brief for Appellant at 11-12. According to Hughes,
[a]lthough it was established that [] Hughes and [] Feli were in a
relationship together and were riding their bicycles together to a
shared destination at the time this incident occurred, no
evidence established a “unity of criminal purpose” between
them. … No evidence presented at trial suggested that []
Hughes had any connection to [] Feli’s actions other than his
presence at the time of the incident.
Id. (paragraph break omitted) (citing Commonwealth v. Thomas, 65 A.3d
939, 945 (Pa. Super. 2013) (rejecting the defendant’s sufficiency challenge
concerning his conviction of conspiracy to commit aggravated assault where
the relationship between the defendant and his four co-conspirators, their
- 10 -
J-A23002-15
conduct during the assault, and overall circumstances established that they
had “acted with a ‘unity of criminal purpose.’”)).
“To sustain a conviction for criminal conspiracy, the Commonwealth
must establish that the defendant (1) entered into an agreement to commit
or aid in an unlawful act with another person or persons, (2) with a shared
criminal intent[,] and (3) an overt act was done in furtherance of the
conspiracy.” Commonwealth v. Hennigan, 753 A.2d 245, 253 (Pa. Super.
2000) (citation omitted); see also 18 Pa.C.S.A. § 903(a).
The essence of a criminal conspiracy is a common
understanding, no matter how it came into being, that a
particular criminal objective be accomplished. Therefore, a
conviction for conspiracy requires proof of the existence of a
shared criminal intent. An explicit or formal agreement to
commit crimes can seldom, if ever, be proved and it need not
be, for proof of a criminal partnership is almost invariably
extracted from the circumstances that attend its activities.
Thus, a conspiracy may be inferred where it is demonstrated
that the relation, conduct, or circumstances of the parties, and
the overt acts of the co-conspirators[,] sufficiently prove the
formation of a criminal confederation. The conduct of the parties
and the circumstances surrounding their conduct may create a
web of evidence linking the accused to the alleged conspiracy
beyond a reasonable doubt. Even if the conspirator did not act
as a principal in committing the underlying crime, he is still
criminally liable for the actions of his co-conspirators in
furtherance of the conspiracy.
Knox, 50 A.3d at 755 (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.” Thomas, 65 A.3d at 943 (Pa.
Super. 2013) (citation omitted).
- 11 -
J-A23002-15
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, for purposes of determining
whether Hughes can properly be convicted as Feli’s co-conspirator, we limit
our discussion to whether the circumstantial evidence established an
agreement between Feli and Hughes to assault Hrabolowski. See
Hennigan, supra.Here, the trial court addressed Hughes’s challenge to his 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
analysis and conclusion, which is supported by the record, and affirm on this
basis with regard to Hughes’s sufficiency challenge to his conspiracy
conviction. See id. Moreover, the verdict on this count was not so contrary
to the evidence as to shock one’s sense of justice; the rationale in the trial
court’s Opinion concerning Hughes’s weight challenge establishes that the
court properly exercised its discretion in rejecting this claim. See id. at 14;
see also Sanchez, supra.
Finally, Hughes asserts that the sentencing court abused its discretion
by imposing an excessive sentence and failing to consider (1) his
rehabilitative needs (and, particularly, his mental health issues and
independent steps taken in pursuit of rehabilitation); and (2) the fact that
Hughes’s prior convictions that were used to compute his prior record score
- 12 -
J-A23002-15
occurred several years before the instant assaults. See Brief for Appellant
at 13-15.
Hughes’s claim challenges the discretionary aspects of his sentence,
from which there is no absolute right to appeal. See Commonwealth v.
Hill, 66 A.3d 359, 363 (Pa. Super. 2013). Rather, where, as here, the
appellant has preserved the discretionary sentencing claim for appellate
review by raising it in a timely post-sentence motion, the appellant must (1)
include in his brief a concise statement of the reasons relied upon for
allowance of appeal with respect to the discretionary aspects of a sentence,
pursuant to Pa.R.A.P. 2119(f); and (2) show that there is a substantial
question that the sentence imposed is not appropriate under the Sentencing
Code. Hill, 66 A.3d at 363-64.
Here, Hughes’s brief does not contain a Rule 2119(f) statement, and
the Commonwealth has objected to this defect. See Commonwealth’s Brief
at 34. Accordingly, this issue is waived. See Commonwealth v.
Robinson, 931 A.2d 15, 19, 22 (Pa. Super. 2007) (en banc) (finding waiver
of the appellant’s discretionary aspects of sentencing claim because he had
failed to include a Rule 2119(f) statement in his brief, and the
- 13 -
J-A23002-15
Commonwealth objected to this defect).8
Accordingly, because we conclude that the trial court did not abuse its
discretion, or commit an error of law, in rejecting Hughes’s challenges to the
weight and sufficiency of the evidence, and his sentencing challenge is
waived, we affirm the judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/24/2015
8
Even if we did not find waiver, we would determine that Hughes’s challenge
to his sentence lacks merit based upon the reasoning advanced by the trial
court in its Opinion. See Trial Court Opinion, 10/21/14, at 20-25 (stating,
inter alia, that the sentencing court did, in fact, consider the age of Hughes’s
prior convictions, and that the sentence imposed was within the standard
range of the sentencing guidelines); see also Commonwealth v. Moury,
992 A.2d 162, 171 (Pa. Super. 2010) (stating that “where a sentence is
within the standard range of the guidelines, Pennsylvania law views the
sentence as appropriate under the Sentencing Code.”).
- 14 -
\T-A ~3 oo~ -t5
Circulated 09/04/2015 02:11 PM
IN THE COURT OF COMMON PLEAS FIFfH 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:
v'd AiNOO) AN3H931W
N.DISliliG 1'ttlir'il::D Office of the District Attorney
S€.lB083't! HffiOJ :W ... dJ'1 of Allegheny County
400 Allegheny County
S .,c., : (,., ,,ud l "'7 1 ... 1 ...,
.I. ••.ill
• • ,, •
'HIH, Courthouse
Pittsburgh, PA 15219
fJ311:1
1
( :
Circulated 09/04/2015 02:11 PM
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
i
2 \.__ _)
Circulated 09/04/2015 02:11 PM
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 rnlschler', 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.
3 \
··--- )
Circulated 09/04/2015 02:11 PM
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
4
Circulated 09/04/2015 02:11 PM
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
5
Circulated 09/04/2015 02:11 PM
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
6 (_)
i
.....
Circulated 09/04/2015 02:11 PM
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 Hospital, 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
7
Circulated 09/04/2015 02:11 PM
the court during the sentencing of each Defendant. (See Hughes
Sentencing Transcript, 7-8;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
8
Circulated 09/04/2015 02:11 PM
(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
9
Circulated 09/04/2015 02:11 PM
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- CRIMINALCONSPIRACY
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).
10
Circulated 09/04/2015 02:11 PM
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
,; 1
11 \ ___;
Circulated 09/04/2015 02:11 PM
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
12
Circulated 09/04/2015 02:11 PM
Po lcu,'\cl Gi
police when they arrived. Similarly, in Commonwealth v .· PoleA-, 27
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
Circulated 09/04/2015 02:11 PM
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
14 r, )
\: ... ___. ......
Circulated 09/04/2015 02:11 PM
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
15
Circulated 09/04/2015 02:11 PM
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.
q
Goins, 501 A.2d 27~ (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
Circulated 09/04/2015 02:11 PM
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
Feli both as a principal and as Defendant Hughes' co-conspirator.4
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.
17
( Circulated 09/04/2015 02:11 PM
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
Circulated 09/04/2015 02:11 PM
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.C.S.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
19
Circulated 09/04/2015 02:11 PM
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
20
Circulated 09/04/2015 02:11 PM
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
21
'
\ ... ... \
Circulated 09/04/2015 02:11 PM
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
22 \.
Circulated 09/04/2015 02:11 PM
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
23
(
Circulated 09/04/2015 02:11 PM
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 i \
\.._-/
Circulated 09/04/2015 02:11 PM
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 final 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
25 <.._)
Circulated 09/04/2015 02:11 PM
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
Circulated 09/04/2015 02:11 PM
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 )
\,~.:,,,/