Com. v. Basnet, Y. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
YAD BASNET :
:
Appellant : No. 616 WDA 2019
Appeal from the Judgment of Sentence Entered March 4, 2019,
in the Court of Common Pleas of Allegheny County,
Criminal Division at No(s): CP-02-CR-0006327-2018.
BEFORE: STABILE, J., KUNSELMAN, J., and PELLEGRINI, J.*
MEMORANDUM BY KUNSELMAN, J.: FILED MARCH 30, 2020
Yad Basnet appeals from the judgment of sentence imposed following
his conviction of aggravated assault and conspiracy.1 We affirm.
The trial court set forth the relevant facts underlying the instant appeal,
as follows:
[Basnet] and Anthony Barbaryka (“Barbaryka”) were
regulars at Diamond Jim’s Café (“Diamond Jim’s”), located at
2002 Brownsville Road, Pittsburgh, Pennsylvania, 15210. On April
1, 2018, Ms. Judy Cole (“Cole”), was working as manager and
bartender at Diamond Jim’s. Barbaryka and Michael Jenesky
(“Jenesky”) had already been in the bar for a while, drinking and
watching sports, before [Basnet] entered with a friend. [Basnet]
and his friend ordered one shot from Cole around midnight. The
two men finished their shot and left the bar. After some time,
[Basnet] and his friend came back to Diamond Jim’s. Several
moments later, there was a verbal disagreement between
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* Retired Senior Judge assigned to the Superior Court.
1 See 18 Pa.C.S.A. §§ 2702(a)(1), 903.
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[Basnet], Barbaryka and Jenesky. [Basnet], who speaks broken
English, was presumed to have made some derogatory remarks
to Jenesky. Cole, conscious of the potential fight transpiring
between [Basnet], Barbaryka, and Jenesky, gave a last call to
everyone in the bar, and stated that she was closing up for the
night. [Basnet] ordered one last shot, but Cole refused to serve
him. [Basnet] began to argue with Cole, and [Basnet] and his
friend were ordered to leave Diamond Jim’s. Cole locked the door
behind them. Once [Basnet] and his friend left, [Basnet] began
kicking the door and yelling obscenities. Cole told [Basnet] to stop
kicking the door. Shortly after the kicking stopped, Cole asked
Barbaryka and Jenesky to leave. Barbaryka and Jenesky left the
bar together. . . .
When Barbaryka left the bar, he was jumped by a group of
guys. The men began hitting Barbaryka from all angles on his
head, back, and side. From her position, Cole recognized [Basnet]
as one of the men attacking Barbaryka. Jenesky also identified
[Basnet] as one of the men who chased and attacked Barbaryka.
Two men chased Jenesky behind a van, while [Basnet] and at least
one other man chased Barbaryka across the street. Barbaryka
was hit by multiple assailants. At this time, Officer Gilkinson, who
was responding to another 911 call, was driving towards the bar,
and witnessed two people fighting in the middle of the street.
Officer Gilkinson activated his emergency lights and hit his siren,
and the two people stopped fighting. One male entered a white
vehicle, and drove away towards Brentwood at a high rate of
speed. Meanwhile, Officer Gilkinson went to examine the other
man, . . . Barbaryka, who was bleeding heavily from his right arm
and his lip. Barbaryka had sustained three stab wounds, one to
his right arm, his back, and his right flank.
Trial Court Opinion, 7/15/19. At 2-4 (unnumbered, citations to the record
omitted).
Police arrested Basnet and charged him with aggravated assault and
conspiracy. Following a non-jury trial, the court found Basnet guilty of both
counts. On March 4, 2019, the trial court sentenced Basnet to an aggregate
term of three to six years imprisonment, followed by one year of probation.
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Basnet filed a post-sentence motion, which the trial court denied. He
thereafter filed a timely notice of appeal. Both Basnet and the trial court
complied with Pa.R.A.P. 1925.
Basnet raises the following issues for our review:
1. Was the evidence insufficient to sustain the verdicts on the theory
of accomplice liability when the Commonwealth failed to prove
beyond a reasonable doubt that Mr. Basnet had the requisite mens
rea for the offense of aggravated assault, particularly that he
intended to commit serious bodily injury to the victim?
2. Were the verdicts rendered contrary to the weight of the evidence
presented in that the Commonwealth’s evidence was
contradictory, tenuous, vague and uncertain and the verdicts
shock the conscience of the court when no one could testify that
Mr. Basnet assaulted and stabbed the victim?
Basnet’s Brief at 6 (capitalization omitted).
In his first claim, Basnet challenges the sufficiency of the evidence
supporting his convictions for aggravated assault and conspiracy. Our scope
and standard of review of a sufficiency claim is well-settled:
[O]ur standard of review of sufficiency claims requires that we
evaluate the record in the light most favorable to the verdict
winner giving the prosecution the benefit of all reasonable
inferences to be drawn from the evidence. Evidence will be
deemed sufficient to support the verdict when it establishes each
material element of the crime charged and the commission thereof
by the accused, beyond a reasonable doubt. Nevertheless, the
Commonwealth need not establish guilt to a mathematical
certainty. [T]he facts and circumstances established by the
Commonwealth need not be absolutely incompatible with the
defendant’s innocence. Any doubt about the defendant’s guilt is
to be resolved by the fact finder unless the evidence is so weak
and inconclusive that, as a matter of law, no probability of fact
can be drawn from the combined circumstances.
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Commonwealth v. Franklin, 69 A.3d 719, 722 (Pa. Super. 2013) (citations
and quotation marks omitted).
In order to sustain a conviction for aggravated assault, the
Commonwealth must prove beyond a reasonable doubt that the defendant
“attempt[ed] to cause serious bodily injury to another, or cause[d] such injury
intentionally, knowingly or recklessly under circumstances manifesting
extreme indifference to the value of human life.” 18 Pa.C.S.A. § 2702(a)(1).
Serious bodily injury is further defined by the Crimes Code as “bodily injury
which creates a substantial risk of death or which causes serious, permanent
disfigurement, or protracted loss or impairment of the function of any bodily
member or organ.” 18 Pa.C.S.A. § 2301.
A person is guilty of conspiracy to commit a crime if with the intent of
promoting or facilitating its commission, he:
(1) agrees with such other person or persons that they or one
or more of them will engage in conduct which constitutes
such crime or an attempt or solicitation to commit such
crime; or
(2) agrees to aid such other person or persons in the planning
or commission of such crime or of an attempt or solicitation
to commit such crime.
Id. § 903(a).
Basnet does not challenge the trial court’s finding that Barbaryka
sustained serious bodily injury. He contends, however, that evidence proving
beyond a reasonable doubt that he acted with malice in causing serious bodily,
or conspired with another to do so, was lacking. Specifically, Basnet claims
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that the record is devoid of testimony regarding the identity of the individual
who stabbed Barbaryka. Basnet further claims that no Commonwealth
witness saw him with a knife, or saw him stab Babaryka, or saw him restrain
Barbaryka, or provide a knife to another individual for use during the fight.
While Basnet concedes that he was present at Diamond Jim’s on the night in
question, he argues that mere presence is insufficient to establish that he
stabbed Barbaryka, or conspired with another to do so.
Viewing the record in the light most favorable to the Commonwealth, as
the verdict winner, we conclude that the evidence demonstrates Basnet’s
active participation in the aggravated assault of Barbaryka. Cole, a manager
and bartender at Diamond Jim’s, testified that on the evening of April 1, 2018,
Basnet and a friend came to the bar around midnight and ordered a shot. N.T.
Trial, 11/29/18, at 13-16. Barbaryka and Jenesky were present in the bar.
Id. Basnet and his friend left the bar, but later returned and asked to
purchase a six-pack of beer. Id. at 6-17. After Cole complied, she heard
Basnet say something derogatory to Jenesky. Id. at 17. Cole stated that
Basnet was the “instigator” and that he “started the fight.” Id. at 25.
Sensing that something was going to transpire between the men, Cole
closed the register and told the men it was last call, and they needed to leave.
Id. at 17-18. Basnet and his friend asked for a shot. Id. at 18. Cole declined,
and Basnet became argumentative and refused to leave the bar. Id. Cole
indicated that Barbaryka and Jenesky “were backing [her] up,” and “they told
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[Basnet and his friend] to get going . . .” Id. at 21. Cole then physically
escorted Basnet and his friend to the door, pushed them outside, and locked
the door. Id. at 18-19. Basnet and his friend then began kicking the door.
Id. at 19. Cole opened the door twice to tell them to stop kicking the door,
but they refused to do so. Id. at 20. On the second occasion that she opened
the door, Cole noticed that Basnet was talking on his phone. Id.
A few minutes later, she again told Barbaryka and Jenesky that she was
closing, and they also needed to leave. Id. After they left the bar, she heard
screaming outside, and saw Basnet and four others pursuing Barbaryka and
Jenesky. Id. at 21. She stated that Jenesky was in a garage area with three
of the men, while “[Basnet] and [the same friend that had been in the bar
with him were] fighting with [Barbaryka]” across the street. Id. at 22; see
also id. (where Cole reiterated “[Barbaryka] was across the street with
[Basnet] and another kid. They were fighting.”). When asked what she
witnessed regarding the fighting involving Barbaryka and Basnet, Cole stated,
“it was dark out. I could just see hands going, pushing, shoving. I couldn’t
tell you exactly because it was dark.” Id. at 24.
Police Officer Kurt Gilkinson testified that, while driving on Brownsville
road on his way to another emergency, he came upon two men fighting in the
street outside Diamond Jim’s. Id. at 7. Officer Gilkinson activated his
emergency lights and his siren, and pulled over. Id. at 8. One of the men
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then broke free from the other, and jumped into a white vehicle that sped
away. Id.
Mr. Jenesky testified that, when he and Barbaryka left the bar, there
were five men outside, including Basnet. Id. at 40. He indicated that some
of the men chased him. Id. at 41. According to Jenesky, Basnet was part of
the group that chased Barybaryka across the street. Id. at 41. Jenesky
indicated that he could see that Barbaryka was “in trouble” and that “[h]e was
on the ground with [at least Basnet] on top of him.” Id. at 41, 43. When
Jenesky tried to run to help Barbaryka, the men chasing Jenesky began hitting
him from behind with their fists. Id. at 42. Jenesky stated that the attack
occurred approximately 15 minutes after he and Basnet were “having words.”
Id. at 47.
Finally, Barbaryka testified that, as he was walking out of the bar with
Jenesky, he “got pummeled by a couple guys.” N.T. Trial, 12/4/18, at 7. He
testified that he was chased by more than one person and that he was being
chased, hit and kicked all at the same time. Id. at 8-9. Barbaryka was hit
from behind in the head, back, and side. Id. at 7. He additionally testified
that, “once I was down I was getting kicked.” Id. at 8. According to
Barbaryka, he was attacked by multiple people, since he “was getting hit from
both sides of my head and punched” all at the same time. Id. at 8-9. He was
stabbed three times in the altercation, but does not remember being stabbed.
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Id. He sustained cuts to him arm, side and spine. Id. at 9. Barbaryka never
saw any of his attackers, and does not know who stabbed him. Id. at 10, 15.
In order to sustain a conviction for aggravated assault, “the
Commonwealth does not have to prove that the serious bodily injury was
actually inflicted but rather that the [a]ppellant acted with the specific intent
to cause such injury.” Commonwealth v. Holley, 945 A.2d 241, 247 (Pa.
Super. 2008) (citation omitted). We have previously explained the
Commonwealth’s burden as follows:
The Commonwealth may prove intent to cause serious bodily
injury by circumstantial evidence. In determining whether the
Commonwealth proved the [a]ppellant had the requisite specific
intent, the fact-finder is free to conclude the accused intended the
natural and probable consequences of his actions to result
therefrom. A determination of whether an appellant acted with
intent to cause serious bodily injury must be determined on a
case-by-case basis.
An intent is a subjective frame of mind, it is of necessity difficult
of direct proof[.] We must look to all the evidence to establish
intent, including, but not limited to, appellant’s conduct as it
appeared to his eyes[.] Intent can be proven by direct or
circumstantial evidence; it may be inferred from acts or conduct
or from the attendant circumstances. Moreover, depending on the
circumstances even a single punch may be sufficient.
Commonwealth v. Lewis, 911 A.2d 558, 564 (Pa. Super. 2006) (internal
citations and quotations omitted). This logic applies “with equal force to prove
recklessness to a degree that one would reasonably anticipate serious bodily
injury as a likely and logical result” from one’s actions. Commonwealth v.
Bruce, 916 A.2d 657, 664 (Pa. Super. 2007) (finding “four or five blows to
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the face and throat” sufficient for inferring reckless intent to cause serious
bodily injury, even in light of “minimal external injury to [victim’s] face”).
Here, none of the witnesses testified that they saw Basnet with a knife
or stab Barbaryka. Thus, there is no direct evidence that Basnet stabbed
Barbaryka. Nor did any witness specifically testify that they saw Basnet
punching Barbaryka. However, there is ample circumstantial evidence that,
even if Basnet was not the stabber, he was one of two individuals that
physically assaulted Barbaryka in a sustained beating that included blows to
his head.
Basnet and his friend chased Barbaryka and were fighting with him.
Basnet was also seen on top of Barbaryka while he was on the ground.
Importantly, Barbaryka was punched on both sides of his head
simultaneously, indicating that both Basnet and his friend assaulted Barbaryka
and intended to cause serious bodily injury. Barbaryka further testified that
he sustained multiple hand blows to his head, back, and side, and then
sustained kicks from his attackers once he fell to the ground. Moreover, the
attack would likely have continued, if not for the fortuitous arrival of Officer
Gilkinson. Thus, even if Basnet was not the individual who stabbed Barbaryka,
the evidence supports a finding that Basnet actively participated in the assault
and “attempt[ed] to cause serious bodily injury to another, or cause[d] such
injury intentionally, knowingly or recklessly under circumstances manifesting
extreme indifference to the value of human life.” 18 Pa.C.S.A. § 2702(a)(1).
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Accordingly, we conclude that Basnet’s challenge to the sufficiency of the
evidence supporting his conviction for aggravated assault lacks merit.2
Turning to Basnet’s conviction for conspiracy, the Commonwealth must
demonstrate that the defendant: “(1) entered 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. Rios, 684 A.2d 1025, 1030 (Pa. 1996); see also 18
Pa.C.S. § 903. Once the conspiracy is established beyond a reasonable doubt,
a conspirator can be convicted of both the conspiracy and the substantive
offense that served as the illicit objective of the conspiracy. Commonwealth
v. Miller, 364 A.2d 886, 887 (Pa. 1976).
Proving the existence of such an agreement is not always easy, and is
rarely proven with direct evidence. Commonwealth v. Spotz, 552 Pa. 499,
716 A.2d 580, 592 (Pa. 1998). “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.” Commonwealth v. Strantz, 195 A. 75, 80 (Pa. 1937).
Indeed, “[a] conspiracy may be proven inferentially by showing the relation,
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2 We observe that the trial court found Basnet guilty of aggravated assault
based on a theory of accomplice liability. See N.T. Trial, 12/4/18, at 23-24.
However, we may affirm the trial court’s determination on any valid basis
appearing of record. See Commonwealth v. Moore, 937 A.2d 1062, 1073
(Pa. 2007).
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conduct, or circumstances of the parties, and the overt acts of alleged co-
conspirators are competent as proof that a criminal confederation has in fact
been formed.” Commonwealth v. Kennedy, 453 A.2d 927, 929, 930 (Pa.
1982). As our Supreme Court has explained:
[D]irect evidence of the formation of a conspiratorial agreement
is rare, and often must be derived from the facts and
circumstances of each case. The agreement need not be formal,
nor must it even be expressly communicated. It can be
established instantaneously, or it can be the product of drawn-out
deliberations. By way of example, in the context of multi-person
fights, two participants can form a conspiracy to assault another
person by discussing at length a plan to assault that person, or,
alternatively, those same individuals can form the illicit agreement
by mere nodding of heads, so long as they possess the requisite
intent.
Commonwealth v. Chambers, 188 A.3d 400, 411 (Pa. 2018).
With these principles in mind, we turn to the facts of the case before us.
We consider, in the light most favorable to the Commonwealth, whether
Basnet and his friend who accompanied him into the bar earlier in the evening
conspired to assault Barbaryka, or whether they assaulted him spontaneously.
Id. Under our deferential standard of review, we conclude that the evidence
was sufficient to prove that such a conspiracy existed.
Here, the evidence established that, when Basnet and his friend were in
Diamond Jim’s, Basnet said something derogatory to Jenesky. Shortly
thereafter, Cole told Basnet and his friend to leave the bar. They refused to
comply with Cole’s directive. Barbaryka and Jenesky then injected themselves
into the situation by telling Basnet and his friend to leave. When they did not
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do so, Cole had to physically push them out the door and lock it. Basnet and
his friend did not leave the bar at that point. Instead, they stayed outside
and displayed their anger at being kicked out of the bar by repeatedly kicking
the bar door. They refused to stop kicking the door even though Cole told
them to stop on two occasions.
After Cole kicked Basnet and his friend out of the bar, Cole saw Basnet
talking on the phone. A short time later, when Barbaryka and Jenesky left
the bar, Basnet, his friend, and three others were outside the door waiting for
them. Basnet and his four cohorts immediately chased and assaulted both
Barbaryka and Jenesky. Basnet and the friend from the bar, chased and
attacked Barbaryka, delivering blows to both sides of his head simultaneously,
hitting him in the back, and side, and kicking him when he was on the ground.
From this evidence, the finder of fact could infer that Basnet and his friend
were angry at Barbaryka and Jenesky, that Basnet summoned three additional
men by phone, and that the five of them conspired to physically attack
Barbaryka and Jenesky when they emerged from Diamond Jim’s. Accordingly,
Basnet’s sufficiency challenge to the conspiracy conviction warrants no relief.
In his final claim, Basnet contends that the verdict is against the weight
of the evidence. Our standard of review of a challenge to the weight of the
evidence is well-settled:
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 has
had the opportunity to hear and see the evidence presented, an
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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. Widmer, 744 A.2d 745, 753 (Pa. 2000) (internal
citations omitted). “[I]t is for the fact-finder to make credibility
determinations, and the finder of fact may believe all, part, or none of a
witness's testimony.” Commonwealth v. Gibbs, 981 A.2d 274, 282 (Pa.
Super. 2009) (citations omitted). This Court may not substitute its judgment
for that of the fact-finder as to credibility issues or the weight to be given to
evidence. Commonwealth v. Furness, 153 A.3d 397, 404 (Pa. Super.
2016). This standard applies even when the trial judge rendered the verdict
at issue as the finder of fact. See, e.g., Commonwealth v. Konias, 136
A.3d 1014, 1023 (Pa. Super. 2016) (applying the above standards to a weight
challenge following a bench trial).
Further, a challenge to the weight of the evidence concedes that
sufficient evidence supports the verdict. Widmer, 744 A.2d at 751. Thus, to
allow an appellant “to prevail on a challenge to the weight of the evidence,
the evidence must be so tenuous, vague and uncertain that the verdict shocks
the conscience of the court.” Commonwealth v. Talbert, 129 A.3d 536, 545
(Pa. Super. 2016) (internal citation omitted).
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Basnet argues that the verdict was against the weight of the evidence
because Officer Gilkinson indicated in his police report that Cole and Jenesky
stated that they did not witness what occurred outside when Barbaryka was
involved in a fight. Basnet asserts that their initial statements to police are
inconsistent with their trial testimony, where they both identified Basnet as
one of the men fighting with Barbaryka. Basnet also claims that Cole and
Jenesky provided inconsistent trial testimony as to who escorted Basnet out
of the bar, whether Basnet made comments to Barbaryka, and the sequence
of events surrounding the kicking of the door. On this basis, he claims that
their testimony is wholly unreliable. He additionally claims that, because
Barbaryka and Jenesky were drinking on the night in question, it is “highly
likely that both of them were highly intoxicated during the episode.” Basnet’s
Brief at 26. Basnet contends that the Commonwealth failed to produce any
evidence that he stabbed Barbaryka, or that Basnet ever had knife, gave
another a knife, or knew that someone else had a knife. For these reasons,
he claims that the verdict is against the weight of the evidence.
In the instant matter, a non-jury trial was conducted before the
Honorable Donna Jo McDaniel, who sat as the trier of fact. Judge McDaniel
retired shortly after the trial, and the case was transferred to the Honorable
Thomas Flaherty. Judge Flaherty considered and denied Basnet’s post-
sentence motions, including his challenge to the weight of the evidence. In
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his Pa.R.A.P. 1925(a) opinion, Judge Flaherty explained the basis for denying
relief on that claim, as follows:
[Basnet] claims that Mr. Jenesky and Ms. Cole’s initial statements
to Officer Gilkinson [were] in “stark contrast” to their trial
testimonies. A review of the facts in this case shows that, these
inconsistencies are minor, and not to a degree that shock[s] the
conscious; therefore reliance on these statements is not grounds
for a new trial. Commonwealth v. Jacoby, 170 A.3d 1065 (Pa.
2017) (inconsistencies in eyewitness testimony are not sufficient
to warrant a new trial on grounds that the verdict was against the
weight of evidence); Commonwealth v. Talbert, 129 A.3d 536(Pa. Super. 2015) (establishing that in order to prevail on a
challenge to the weight of the evidence, the evidence must be so
tenuous, vague and uncertain that the verdict shocks the
consciousness of the court). Although Officer Gilkinson’s police
report stated that “neither Jenesky or [sic] [Ms.] Cole witnessed
what happened outside,” ([N.T. Trial,] 12/4/2018 p. 18), this
statement is not outrageously different from Cole’s testimony that
she first heard commotion outside, and then went to see what was
happening.
Furthermore, the fact-finder, Judge McDaniel, was free to believe
all or part of Cole and Jenesky’s testimonies. Judge McDaniel was
well within her discretion when she found both witnesses to be
credible, and to believe their trial testimony. This Court has
reviewed the trial transcript and cannot find facts that are of such
greater weight that to ignore them would deny justice.
Pa.R.A.P. 1925(a) Opinion, 7/15/19, at 6-7 (unnumbered).
We discern no abuse of discretion by Judge Flaherty in rejecting Basnet’s
challenge to the weight of the evidence supporting his convictions for
aggravated assault and conspiracy. Cole and Jenesky were cross-examined
at trial regarding the contents of the police report, and the alleged
inconsistencies between their initial statements and their trial testimony.
Judge McDaniel, sitting as the trier of fact, was free to believe all, part or none
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of their testimony. See, e.g., Commonwealth v. Greenlee, 212 A.3d 1038,
1042 (Pa. Super 2019). After reviewing all the evidence, Judge McDaniel
found that the credible evidence established that Basnet was guilty of
aggravated assault and conspiracy. Judge Flaherty exercised his discretion in
finding that Judge McDaniel’s verdict was not so contrary to the evidence as
to shock the conscience of the court. As we discern no abuse of discretion by
Judge Flaherty, Basnet’s final claim warrants no relief.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/30/2020
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