Com. v. Harling, D. ( 2016 )

J-A19032-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
DERRICK HARLING
No. 2453 EDA 2015
Appeal from the Order July 15, 2015
in the Court of Common Pleas of Philadelphia County Criminal Division
at No(s): CP-51-CR-0011361-2014
BEFORE: FORD ELLIOTT, P.J.E., OTT, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED DECEMBER 27, 2016
The Commonwealth appeals from the order entered in the Philadelphia
County Court of Common Pleas granting Appellee’s, Derrick Harling, motion
for judgment of acquittal for conspiracy. We reverse and remand for
reinstatement of the jury verdict and for sentencing.
The trial court summarized the procedural posture of this case as
follows:
Defendants, [Appellee]1 and [Jamil Johnson], were
arrested on September 18, 2014, and charged with
robbery, conspiracy, theft by unlawful taking, receiving
stolen property, simple and aggravated assault and
recklessly endangering another person. [Appellee and
Johnson] were held for court on all charges after a
*
Former Justice specially assigned to the Superior Court.
1
The Commonwealth’s appeal of the trial court’s grant of relief to Appellee’s
codefendant, Jamil Johnson, is listed at 2454 EDA 2015.
J-A19032-16
preliminary hearing on October 6, 2014. A joint jury trial
commenced July 9, 2015. A motion for acquittal was
presented at the conclusion of the prosecution’s case[2]
and held in abeyance until after the jury returned a
verdict. On July 14th, the jury found [Appellee and
Johnson] guilty of conspiracy to commit aggravated
assault, but acquitted both [of them] of all other charges,
including aggravated assault. On July 15th, the motion for
acquittal was granted as to the charge of criminal
conspiracy to commit aggravated assault.
Trial Ct. Op., 10/28/15, at 1-2. This timely appeal followed. The
Commonwealth filed a Pa.R.A.P. 1925(b) statement of errors complained of
on appeal and the trial court filed a responsive opinion.
Preliminarily, we consider whether an appeal properly lies from the
trial court’s order granting judgment of acquittal. In Commonwealth v.
Gibbons, 784 A.2d 776 (Pa. 2001), the defendant moved for a judgment of
acquittal after the Commonwealth presented its case, and the trial court
granted it before the defense’s case-in-chief and before the entry of the jury
verdict. Gibbons, 784 A.2d at 777. Our Pennsylvania Supreme Court held
that double jeopardy3 precluded an appeal of a judgment of acquittal
granted before a verdict was rendered. Id. at 778.
2
Counsel for Defendant Johnson moved for judgment of acquittal. See R.R.
at 82. Appellee’s counsel joined in the motion. See id. For the parties’
convenience we refer to the reproduced record where applicable.
3
The Fifth Amendment provides, in pertinent part, that no person “Shall be
subject for the same offence to be twice put in jeopardy of life or limb.”
U.S. Const. amend. V. Article 1, Section 10, of the Pennsylvania
Constitution provides, in relevant part, that “no person shall, for the same
offense, be twice put in jeopardy of life or limb.” Pa. Const. art. 1, § 10.
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This Court in Commonwealth v. Feathers, 660 A.2d 90 (Pa. Super.
1995) (en banc) opined:
In United States v. Wilson, [ ] 95 S. Ct. 1013 [ ] (1975),
the Supreme Court held “that when a judge rules in favor
of the defendant after a verdict of guilty has been entered
by the trier of fact, the Government may appeal from that
ruling without running afoul of the Double Jeopardy
Clause.” Id. [ ] at 1026 [ ]. The Court said:
[W]here there is no threat of either multiple
punishment or successive prosecutions, the Double
Jeopardy Clause is not offended. In various
situations where appellate review would not subject
the defendant to a second trial, this Court has held
that an order favoring the defendant could
constitutionally be appealed by the Government.
Since the 1907 Criminal Appeals Act, for example,
the Government has been permitted without serious
constitutional challenge to appeal from orders
arresting judgment after a verdict has been entered
against the defendant. Since reversal on appeal
would merely reinstate the jury’s verdict, review of
such an order does not offend the policy against
multiple prosecution.
Id. [ ] at 1022 [ ] (footnote omitted).
* * *
[W]here a court finds as a matter of law the evidence is
not sufficient to support the verdict, that, like any other
ruling on a question of law, is subject to review, and an
order by the reviewing court reversing that conclusion
and reinstating the jury verdict does not offend the
proscription against double jeopardy.
Id. at 93-94 (emphases added).
Instantly, although Appellee raised his motion for judgment of
acquittal at the close of the Commonwealth’s case, the trial court reserved
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its ruling on the motion until after the defense presented its evidence and
the jury reached a verdict. See Pa.R.Crim.P. 606(A)(1), (B). Thus, an
appellate reversal would not necessitate a retrial. On the contrary, the jury
verdict would be reinstated. Feathers, 660 A.2d at 93-94; cf. United
States v. Scott, 437 U.S. 82, 100 n.13 (1978) (discussing balancing of
interest in the government’s right to appeal an erroneous conclusion of law
with the defendant’s in avoiding subsequent prosecutions). Accordingly, the
trial court’s order is appealable and we address the substantive issue raised
by the Commonwealth. See Feathers, 660 A.2d at 93-94.
The Commonwealth raises the following issue for our review:
Did the lower court improperly grant [Appellee’s]
motion for a judgment of acquittal from his conspiracy
conviction where the evidence established that [Appellee]
and his codefendant approached the victim [Martin Samuel
Byng] together, beat the victim together, fled the scene
together, and, a short time later, were arrested together?
Commonwealth’s Brief at 2.
The Commonwealth contends “[t]he evidence established that
[Appellee] and four conspirators viciously beat the victim for fifteen minutes.
This was sufficient to support [Appellee’s] conviction of conspiracy to commit
aggravated assault.” Id. at 8. The Commonwealth argues that the trial
court erred in granting Appellee’s motion for judgment of acquittal based “on
its belief that the victim had not testified credibly.” Id. at 12. We are
constrained to agree.
Our review is governed by the following principles.
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[W]here a trial court has found post-verdict that the
evidence was insufficient as a matter of law to support the
verdict, that determination is subject to appellate review .
...
* * *
To determine the legal sufficiency of evidence supporting a
jury’s verdict of guilty, this Court must:
view the evidence in the light most favorable to the
Commonwealth, which has won the verdict, and
draw all reasonable inferences in its favor. We then
determine whether the evidence is sufficient to
permit a jury to determine that each and every
element of the crimes charged has been established
beyond a reasonable doubt. It is the function of the
jury to pass upon the credibility of the witnesses and
to determine the weight to be accorded the evidence
produced. The jury is free to believe all, part or
none of the evidence introduced at trial. The facts
and circumstances established by the
Commonwealth need not be absolutely incompatible
with [the] defendant’s innocence, but the question of
any doubt is for the jury unless the evidence be so
weak and inconclusive that as a matter of law no
probability of fact can be drawn from the combined
circumstances.
Feathers, 660 A.2d at 94-95 (quotation marks and citations omitted).
The Pennsylvania Crimes Code defines conspiracy as follows:
(a) Definition of conspiracy.─A person is guilty of
conspiracy with another person or persons to commit a
crime if with the intent of promoting or facilitating its
commission he:
(1) agrees with such other person or persons that they
or one or more of them will engage in conduct which
constitutes such crime or an attempt or solicitation to
commit such crime; or
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(2) agrees to aid such other person or persons in the
planning or commission of such crime or of an attempt
or solicitation to commit such crime.
* * *
(e) Overt act.─No person may be convicted of conspiracy
to commit a crime unless an overt act in pursuance of such
conspiracy is alleged and proved to have been done by him
or by a person with whom he conspired.
18 Pa.C.S. § 903(a), (e).
A criminal conspiracy conviction requires proof of:
(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. 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.
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.
These factors may coalesce to establish a conspiratorial
agreement beyond a reasonable doubt where one factor
alone might fail.
* * *
The Commonwealth may meet this burden even if the
conspirators fail to commit the underlying crime.
Conspiracy to commit a crime and the underlying crime
itself are two entirely separate offenses with separate
elements required for each. Therefore, to sustain the
conviction for criminal conspiracy, it need not be
established that [the a]ppellant committed aggravated
assault, provided that [the a]ppellant had the intent to do
so.
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Commonwealth v. Thomas, 65 A.3d 939, 943-44 (Pa. Super. 2013)
(quotation marks and citations omitted).
Instantly, Mr. Byng testified for the Commonwealth as follows:
[The Commonwealth]: Now, Mr. Byng, while you were
waiting for the bus [on September 18th], did something
happen?
A: Yes.
Q: What happened?
A: Well, I was approached by two men, one on a bike . . . .
* * *
Q: Were they either of the two Defendants who are here
today?
A: No.
* * *
Q: What happened when they came up to you . . .?
A: One guy asked did I say something to his cousin and I
replied no.
Q: You said you didn’t know them.
Had you ever seen either of them before?
A: No.
Q: After you said no, what happened?
A: They proceeded to walk off and as they were walking
off, I was looking to see which direction they were going
and words were exchanged.
* * *
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Q: When you say words were exchanged, what happened?
A: They must have felt some kind of way at me looking at
them and all of a sudden they started calling theirs friends
like I was really a big problem or something.
* * *
Q: Now were you able to hear anything that they were
calling out to those people?
A: As far as names, no, just trying to get other people’s
attention.
Q: As they were calling out to them, were they still
approaching you?
A: Yes.
Q: You mentioned that they were coming kind of
aggressively, you mentioned like with anger in their faces?
A: Yes.
Q: What happened when they kept coming close to you?
A: I started backing up when I seen [sic] I was basically
about to be outnumbered. I started to walk up toward
where the Family Dollar is at.
Q: Now as they were coming closer to you and you
mentioned they called out to some other individuals, those
individuals that you saw down the block, what did you see
them do, if anything?
A: Basically coming toward me, coming toward me and
surrounding me and they proceeded to assault me.
* * *
Q: [A]pproximately how many people in total came up to
you eventually?
A: Five.
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Q: Any of the individuals that came up to you, do you
recognize anybody in the courtroom from that day?
A: Yes, I do.
Q: Who are those people?
A: Those two gentlemen over there. (Indicating).
* * *
Q: . . . I will start with Defendant, Johnson who is closer to
the center of the room. (Indicating).
When did you first notice him?
* * *
A: After I got up off the ground.
* * *
Q: Next, I am going to ask next about [Appellee] . . . .
When did you first notice him?
* * *
Again, if you can just use the photo.
A: Coming from across here, up toward Germantown
Avenue. (Indicating).
* * *
Q: Now, you mentioned assault. . . .
What was the first contact?
A: The first contact is when I attempted to cover my face
and I started feeling hits, blows toward my body and
toward my head.
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* * *
Well, I just felt multiple hits coming from just about
every direction.
Q: Where were you feeling the hits on your body?
A: More toward my head.
Q: Did you feel any hits on your body, itself, or were they
all around your head?
A: When I was covering my head, I felt hits on my body . .
..
* * *
Q: Did you feel hits from just one person or multiple
people?
A: Multiple.
* * *
Q: Mr. Byng, your glasses, did they stay on the entire
time?
A: No.
Q: Do you recall at what point they came off?
A: When I fell to the ground in front of the bus stop.
Q: How did they come off?
A: They were knocked off.
Q: How were they knocked off?
A: From a punch.
Q: While you were on the ground, what were the
individuals doing?
* * *
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Did the punches stop at that time?
A: The punches did stop at that time and I was getting up.
* * *
Q: As you are getting up, were the individuals still there?
A: They started splitting up and stuff. As words were
exchanged again and stuff, people started coming closer,
still talking more aggressively. It was just a mess.
Q: I want to go back to Defendant, Johnson. You
mentioned when you got up, that is when you noticed him?
A: Yes.
Q: What, if anything, did you see him do?
A: He came across the street toward me.
* * *
Q: Now was that after─
A: I fell?
Q: Yes.
A: Yes.
Q: When he came across the street toward you, did you
hear him say anything?
A: I don’t recall the words exactly but I know that when he
approached me, he had his hands up in a fighting stance.
Q: You can indicate for the jury how he had his hands up.
A: Just like ready to throw punches at me. (Indicating).
Q: As he came across the street, was he directing his
attention to anybody but you?
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A: No, no.
Q: You say that he came across the street looking like he
was ready to fight.
What happened as he came across the street?
A: I was about to defend myself and then another
gentleman said don’t put your hands on him.
Q: The gentleman that you say said don’t put your hands
on him, do you see that individual in court today?
A: Yes, I do.
Q: Who is that person?
A: The gentleman on the far right. (Indicating).
[The Commonwealth]: Indicating [Appellee].
Q: Now when [Appellee] said that, where was he?
A: He was, as I was in the street right here and getting up,
the Defendant was coming across. . . .
Q: How far away was he from you?
A: About 8 feet.
* * *
Q: When he said that, what did you take that to mean?
A: That I was getting ready probably to get assaulted
again if I even threw a swing.
Q: After he said that, what happened?
A: I was hit again.
Q: Who were you hit by?
A: By Defendant, Johnson right there. (Indicating).
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Q: Defendant, Johnson, the one closer?
A: Yes.
Q: Where were you hit at that time?
A: In my face.
* * *
Q: When Defendant, Johnson hit you, did he just hit you
one time or did something else happen?
A: Two hits.
Q: Where were these two hits? . . .
A: [T]o my head and to my jaw.
* * *
Q: After you got back up, what happened?
A: I was looking for my glasses. A couple of my family
members came up because they heard about the incident
through a friend who was driving by and maybe two
minutes later, the police arrived and that was basically the
incident.
Q: Now, Mr. Byng, during this whole altercation, did you
see what, if anything, [Appellee] did he ever throw a
punch at you?
A: When he was approaching me in the beginning, he was
one of the guys who was approaching me.
Q: So that first fight I guess we can call it when you
mentioned you were kind of going toward Family Dollar
that ended up back toward the bus stop─
A: Correct.
Q: During that fight─
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A: Yes.
Q:─You are saying [Appellee] was there?
A: Yes.
Q: He also threw a punch?
A: Yes.
* * *
Q: Now, after the punches stopped, could you try and
engage or tell how long the entire attack took?
A: More or less, 15, maybe 25 minutes, around that time
frame.
* * *
Q: Now after the assault, you said everybody kind of
scattered?
A: Yes.
Q: At the point when they scattered, did you hear any
sirens, any police sirens?
A: Yes, like two minutes later.
* * *
Q: During that time, you said it was about two minutes,
what were you doing during that time?
* * *
A: I was mainly looking for my glasses and I realized my
phone wasn’t on me.
Q: Did you look for your phone?
A: I did.
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Q: Were you able to find it?
A: I didn’t and I realized my whole pocket was ripped and
my shirt was ripped. Basically everything was just
bloodied and ripped on me.
* * *
Q: How did you physically feel after the assault?
A: Violated.
Q: Did you feel any pain at all? Did you feel fine?
A: I felt pain and stuff. My whole inner lip was cut and
later on got infected but [sic] bruising on my head, a
closed eye.
* * *
Q: . . . When the police got there, what happened?
A: They asked me the situation that happened. I told
them the situation. The ambulance had checked on me
and they checked my bruising and scar and they said I am
able to comprehend and all that, so I can go with the
police to see if I can identify the subjects before they ran
anywhere else or anything like that and I told the police
officer I was fine at the time, fine enough to go and get in
the back of the police car and identify.
* * *
Q: Do you know where you went?
A: Down Germantown Avenue . . . .
* * *
Q: As you went in that direction, what happened?
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A: I noticed to the right of me going down Germantown
Avenue one of the assailants was sitting outside with a
female.
Q: The person that you saw sitting outside, do you see
that individual in court today?
A: Yes, I do.
Q: Who is that?
A: The gentleman to the far right. (Indicating)
* * *
[The Commonwealth]: Indicating [Appellee] for the record.
* * *
Q: I want to briefly just go back for a moment.
After you got up, you said you saw Defendant, Johnson,
and that is when he was kind of squared with you.
Was there anything covering his face?
A: No.
* * *
Q: Was [Appellee] behind Defendant, Johnson at that point
in time?
A: No.
Q: Where was he?
A: To the side.
* * *
Q: Now, you mentioned that the police car did a U-turn?
A: Yes.
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Q: What happened as it did the U-turn?
A: The police car did the U-turn, stopped directly in front
of the house, got out of the car, attempted to knock on the
door. Someone answered. The police went in and pulled
out [Appellee and Defendant, Johnson].
* * *
Q: What happened when the brought them out?
A: They came out and I identified them as two of the five
men that assaulted me and they proceeded to arrest them.
R.R. at 31-40.
Police Officer Leo Jackson testified that on September 18, 2014 he was
working the 4:00 p.m. to midnight shift. Id. at 67. He testified to the
following.
[The Commonwealth]: Officer Jackson, around 10:20 p.m.
on September 18, 2014, did you get a radio call?
A: Yes.
Q: What was it for?
A: It was for a robbery in progress at 5200 Germantown
Avenue.
* * *
Q: When you got that radio call, what did you do?
A: We turned our lights and sirens on and proceeded to
5200 Germantown Avenue.
Q: About how long did it take you to get there?
A: I would say about a minute-and-a-half to two minutes.
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Q: When you got there, what did you see?
What happened?
A: I observed the victim, the complainant standing on, I
believe, the east corner of Germantown and Ashmead. I
observed him standing there. He flagged us down and I
also observed the swollen─pretty bad swelling to his left
eye. He was also bleeding. I believe he had a cut on his
eyebrow and there was blood all over his shirt.
Q: When you came into contact with him, what was his
demeanor like? What was going on?
A: He appeared pretty calm but also a little shaken up. He
also told us he was jumped by a group of males and they
had taken his cell phone.
Q: After he gave you that information, what did you do?
A: We got the information, the description of the males,
gave that description over radio and then he got into the
back of our car and we started driving around, looking for
the males with the complainant.
* * *
Q: Now you said complainant, would that be Mr. Martin
Byng?
A: Yes.
* * *
Q: Where did you go?
A: We started surveying─ . . .we pretty much immediately
made a U-turn and began driving southbound on
Germantown from Ashmead Street, which is the 5200
block.
At that point, . . . we passed the house and I don’t
remember his exact words but Mr. Byng stated, oh, that’s
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one of the guys that was sitting out front of the house and
he kind of pointed over his right shoulder. So we quickly
made another U-turn. At that point, we saw the door close
from the house.
* * *
Q: Officer, after Mr. Byng indicted to you that he saw one
of the guys, what did you do?
A: We stopped the car, turned around and then we called
over radio to let other units know that the complainant
saw a male suspected of being involved in the crime go
into the house.
* * *
[Appellee’s counsel]: Now you said that other officers
entered 5118?
A: Yes.
Q: There were approximately four or five officers that
entered this address?
A: I believe around that. I’m not sure of the exact
number.
Q: When they exited the address, two officers were
holding [Appellee]?
A: I don’t remember the exact number of officers holding.
Id. at 67-69, 71-72.
Officer Dennis Murtha testified that he was with his partner and
responded to a radio call that a man “was struck numerous times and
robbed of his cell phone.” Id. at 73.
[The Commonwealth]: Based on the information that came
over [sic] radio . . . what did you and your partner do?
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A: We responded to 5118 Germantown Avenue. . . . [W]e
knocked on the door. An occupant came down. She
stated that she was the owner of the property.
We explained to her that a robbery just happened
around the corner and that the offenders were seen
running into this location. We asked if we could come in
and take a look. She happily agreed. We went inside.
Id. Officer Murta testified that he and the other officers “went up the stairs”
and “there was a bedroom at the top of the steps.” Id. at 74. They went
inside and found Defendant Johnson and [Appellee] in the room. Id. Mr.
Byng positively identified Defendant Johnson. Id. at 75.
The trial court granted Appellee’s motion for judgment of acquittal
finding that:
[t]he prosecution’s case was based on the testimony of
Martin Byng, the complainant in this matter. Mr. Byng was
the sole witness as to the alleged assault/robbery, and his
testimony was incongruent at best.
* * *
Byng’s testimony was inconsistent at best. Two males
approached him and asked him a question. After they
walked away, Byng started to yell and curse them. They
came back. After that, the testimony of Byng is so
conflicting as to be irreconcilable.
* * *
Byng’s testimony is so incongruent that the charge of
criminal conspiracy to commit aggravated assault was not
made out. . . . There is no rational, dependable testimony
from which to find that [Appellee and Defendant Johnson]
conspired to commit aggravated assault of Byng.
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Trial Ct. Op. at 2, 7-8. The court further questioned the reliability of Byng’s
identifications noting Byng testified that his glasses were knocked off and he
could only see a few feet without them. Id. at 4.
Following our review, we cannot agree with the trial court that the
evidence was so weak and inconclusive that as a matter of law, no
probability of fact could have been drawn from it. See Feathers, 660 A.2d
at 94-95. The Commonwealth was entitled to have its evidence credited and
all reasonable inferences drawn in its favor. See id. In this light, the jury
could have reasonably concluded that Appellee and Defendant Johnson acted
together with three other men and beat Byng for fifteen minutes. They fled
and Appellee and Defendant Johnson were apprehended in the same house.
Byng identified Appellee, without hesitation. Additionally, the circumstances
of and inconsistencies in Byrd’s testimony generally go to the weight rather
than sufficiency of the evidence.4 See Commonwealth v. Minnis, 458
A.2d 231, 233-34 (Pa. Super. 1983). Thus, we conclude that the
Commonwealth’s evidence was sufficient to sustain Appellee’s conviction for
conspiracy to commit aggravated assault. See Thomas, 65 A.3d at 943-45.
Accordingly, we must reverse the judgment of acquittal and reinstate the
jury verdict. See Feathers, 660 A.2d at 96. We remand for the imposition
of sentence. See id.4
We note that the trial court issued a Kloiber instruction. See
Commonwealth v. Kloiber, 106 A.2d 820 (1954). R.R. at 111.
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Order reversed. Jury verdict reinstated. Case remanded for
sentencing. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/27/2016
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