Com. v. Zachary, H.

J-S51016-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
HEATH ZACHARY :
:
Appellant : No. 1999 MDA 2018
Appeal from the Judgment of Sentence Entered November 15, 2018
In the Court of Common Pleas of Dauphin County
Criminal Division at No(s): CP-22-CR-0004128-2017
BEFORE: PANELLA, P.J., GANTMAN, P.J.E., and MUSMANNO, J.
MEMORANDUM BY GANTMAN, P.J.E.: FILED OCTOBER 28, 2019
Appellant, Heath Zachary, appeals from the judgment of sentence
entered in the Dauphin County Court of Common Pleas, following his jury trial
convictions for aggravated assault, conspiracy to commit aggravated assault,
robbery, and conspiracy to commit robbery.1 We affirm.
In its opinion, the trial court fully and correctly sets forth the relevant
facts and procedural history of this case. Therefore, we have no reason to
restate them.
Appellant raises three issues for our review:
WHETHER THE EVIDENCE WAS INSUFFICIENT TO PROVE
APPELLANT GUILTY OF CONSPIRACY TO COMMIT
AGGRAVATED ASSAULT AND CONSPIRACY TO COMMIT
ROBBERY, AS THERE WAS INSUFFICIENT EVIDENCE TO
____________________________________________
118 Pa.C.S.A. §§ 2702(a)(1), 903 (section 2702 related), 3701(a)(1), and
903 (section 3701 related), respectively.
J-S51016-19
PROVE THAT APPELLANT CONSPIRED WITH ANOTHER
PARTY TO ASSAULT AND ROB…VICTIM[?]
WHETHER THE EVIDENCE WAS INSUFFICIENT TO PROVE
THAT APPELLANT COMMITTED THE CRIME OF ROBBERY, IN
THAT THE EVIDENCE WAS CLEAR THAT ANOTHER,
UNIDENTIFIED INDIVIDUAL TOOK…VICTIM’S PROPERTY
AND THERE WAS INSUFFICIENT EVIDENCE PRESENTED
THAT APPELLANT ACTED AS AN ACCOMPLICE[?]
WHETHER THE EVIDENCE WAS INSUFFICIENT TO PROVE
BEYOND A REASONABLE DOUBT THAT APPELLANT WAS
GUILTY OF AGGRAVATED ASSAULT, IN THAT THE
COMMONWEALTH FAILED TO ESTABLISH THAT APPELLANT
ATTEMPTED TO CAUSE SERIOUS BODILY INJURY
TO…VICTIM[?]
(Appellant’s Brief at 4).
After a thorough review of the record, the briefs of the parties, the
applicable law, and the well-reasoned opinion of the Honorable Richard A.
Lewis, P.J., we conclude Appellant’s issues merit no relief. The trial court
opinion comprehensively discusses and properly disposes of the questions
presented. (See Trial Court Opinion, filed February 13, 2019, at 4-8) (finding:
ample testimony showed Victim sustained serious bodily injury to her face;
evidence indicated Appellant and his cohort targeted Victim at bar, followed
her out of bar, assaulted her, and stole her purse; police apprehended
Appellant at scene of assault, where Appellant was covered in blood; thus,
evidence was sufficient to convict Appellant of aggravated assault and
conspiracy to commit aggravated assault; further, Victim testified that while
she was at bar with her purse, two men approached her; testimony indicated
two eyewitnesses saw Appellant assaulting Victim, while other male took
-2-
J-S51016-19
Victim’s purse and ran; thus, evidence was sufficient at trial to sustain
Appellant’s convictions for robbery and conspiracy to commit robbery).
Accordingly, we affirm on the basis of the trial court opinion.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/28/2019
-3-
(. ·. ORIGINAL.
Circulated 10/10/2019 10:22 AM
COMMONWEALTH OF PENNSYLVANIA : IN THE COURT OF COMMON PLEAS
: DAUPHIN COUNTY,.PENNSYLVANIA
vs. : NO. 4128 CR 2017
: CRIMINAL MATTER - APPEAL
HEATH ZACHARY
Defendant/Appellant
MEMORANDUM OPINION
Presently before this Court is the Appeal filed in the above-captioned matter(s). This
opinion is written pursuant to Pa.R.A.P. 192S(b).
PROCEDURAL BACKGROUND
Following a jury trial held on September 25-26, 2018, Appellant was found guilty of Count
1 - aggravated assault, Count 2 - conspiracy to commit aggravated assault, Count 3 - robbery, and
Count 4 - conspiracy to commit robbery.' On November 15, 2018, Appellant was sentenced as
follows: at Count 1 to a period of incarceration of not less than 72 months nor more than 144
months, at Count 2 to a period of incarceration.of not less than 60 months nor more than 120
months running concurrently with Count 1, at Count 3 to aperiod of incarceration of not less than
45 months nor more than 90 months running concurrently with Count 1, and at Count 4 to a period
of incarceration of not less than 45 months nor more than 90 months running concurrently with
Count 1. Appellant's aggregate sentence is 72 months to 144 months.
1
18 Pa.C.S.A. §§ 2702(a)(J), 903, 3701(a)(1), 903.
1
Appellant filed a timely notice of appeal on December 10, 2018. In compliance with our
l 925(b) Order, Appellant filed a Concise Statement of Errors Complained of on Appeal raising
the following allegations of errors:
1. The evidence was insufficient to prove appellant guilty of conspiracy to commit
aggravated assault and conspiracy to commit robbery, as there was insufficient
evidence to prove that appellant conspired with another party to assault and rob the
victim.
2. The evidence was insufficient to prove that appellant committed the crime of robbery,
in that the evidence was clear that another, unidentified individual took the victim's
property and there was insufficient evidence presented that appellant acted as an
accomplice.
3. The evidence was insufficient to prove beyond a reasonable doubt that appellant was
guilty of aggravated assault, in that the Conunonwealth failed to establish that appellant
caused or attempted to cause seriously bodily injury to the victim.2
FACTUAL BACKGROUND
On June 18, 2017, Shirley Dilliplane ("victim/Ms; Dilliplane") remembers waking up in
Hershey Medical Center.3 Ms. Dilliplane was at Alva Bar and Restaurant on 4th Street in
Harrisburg. N.T. at 6. She was sitting alone when two gentlemen were trying to "accost" (come
on to) her. Id. She noticed a gentleman to her right and to her left and she had her purse with her
at the time. These gentlemen tried talking to her several times and Ms. Dilliplane described the
one gentleman as being.6'2", black, and wearing a hat, a Hawaiian shirt (tan and brown) and had
glasses. The other gentleman was a little shorter with a white sweat suit on. N.T. at 7.4 The victim
was also able to identify the Defendant as the individual who was wearing the white sweat suit.
N.T. at 11. After several drinks, the victim left Alva's and began walking to the Presbyterian
Apartments nearby.5 The victim went down Market Street to Court Street and remembers being
2
Appellant's concise statement filed January 2, 2019.
3
Transcript of Proceedings, Jury Trial (Testimony only), September 25-26, 2018, page 6 (hereinafter ''N. T. at
").
4
The Commonwealth introduced, as Commonwealth's Exhibit 1, a video of the inside of Alva.
5
The Commonwealth introduced, as Commonwealth's Exhibit 2, a map with the route the victim took.
2
by a barber shop at the comer of Walnut and Court Street. N.T. at 14. The next thing the victim
remembers is waking up at the Hershey Medical Center with multiple facial breaks. N.T. at 15.
There was a group of friends who were walking home when they came upon the victim
and a man (later identified as the Defendant) holding the victim. A.L., a 17 year old, testified that
he saw a man holding a lady and that the lady was not moving. N.T. at 41. A.L. saw this man slam
the victim, punch her, and noticed this man's hand go towards the face of the victim. N.T. at 42.
A.L. ran over to help and saw a man wearing a white shirt with shorts and then called for help.
N.T. at 44. Although not able to positively identify the Defendant, A.L. did recognize the face a
little bit. N.T. at 45. On cross-examination, A.L. testified that it was another guy who picked up
the victim's purse and ran off while the guy in the white just stood there. N.T. at 47. A.L.'s friend,
D.R., who was 15 years old at the time, also witnessed a man "dropping the girl." N.T. at 51. D.R.
testified that it looked like the victim was "falling from air." Id. D.R. went over to the victim and
noticed that she was unconscious. N.T. at 52. He noticed that there were two men there, one was
standing over the victim and had a white shirt and shorts on. N.T. at 53. This man was trying to
grab her stuff. The other man took off running. N.T. at 54.
The Commonwealth introduced several law enforcement individuals who testified to the
events on June 18, 2017. William Dorgan, an employee of Paragon Systems, responded to a call
from an associate and was the first to arrive on the scene.6 N.T. at 58-61. Mr. Dorgan took the
Defendant into custody while the other male took off running. N.T. at 61. Mr. Dorgan testified that
the Defendant was covered in blood and that he recognized the juveniles but never had a problem
with them. N.T. at 63-64. Patrol Officer Wesley Feduke, of Harrisburg City Police, also arrived
on the scene and noticed that the victim had a flat, bloody lip, was unconscious, was bleeding from
6
Paragon Systems contracts with the Department of Homeland Security to provide security services to government
office buildings. Mr. Dorgan was patrolling the Ronald Reagan Federal Office building in downtown Harrisburg.
3
her nose, and that her head was swollen. N.T. at 69. Corporal Brian Henry, patrol supervisor with
Harrisburg City Police, also anived on the scene and stood next to the Defendant. N.T. at 76. The
Defendant repeatedly stated that he did not do this but when Corporal Henry asked the Defendant
what happened, the Defendant responded that he strangled and dropped the victim. N.T. at 78.
Finally, the Commonwealth introduced the testimony of Officer Nicholas Herbster, a
Harrisburg City Police Officer. Officer Herbster arrived on the scene and later interviewed the
victim at the hospital. N.T. at 84 Through Officer Herbster, the Commonwealth introduced
photographs of the Defendant covered in blood. See Commonwealth's Exhibits 3-15.
Additionally, the Commonwealth introduced the Defendant's clothes. Commonwealth's Exhibit
16. Photographs of the victim's face after the assault were also introduced. See Commonwealth's
Exhibits 17 and 18.
DISCUSSION
When reviewing a sufficiency claim, we employ the following standard of review:
The standard we apply when reviewing the sufficiency of the evidence 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 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 trier of fact while
passing upon the.credlbility of witnesses and the weight of the evidence produced
is free to believe all, part or none of the evidence.
4
Commonwealth v. Matthews, 870 A.2d 924, 928 (Pa.Super.2025)(citing Commonwealth
v. Nahavandian, 849 A.2d 1221, 1229-30(Pa.Super.2004)(citations omitted).
Appellant asserts that the evidence was insufficient to sustain his conviction for criminal
conspiracy to commit aggravated assault and aggravated assault. A criminal conspiracy conviction
and the elements of aggravated assault requires proof of:
(I) 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.
Commonwealth v. Galindes, 786 A.2d 1004, 1010 (Pa.Super.2001) (quoting
Commonwealthv. Spotz, 562 Pa. 498, 756 A.2d 1139, 1162 (2000)). 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 Aggravated assault, the crime underlying Appellant's
conspiracy conviction, occurs when a person "attempts to cause serious bodily
injury to another, or causes such injury intentionally, knowingly, or recklessly
under circumstances manifesting an extreme indifference to the value of human
life." 18 Pa.C.S.A. § 2702(a)(l). 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. § 2301.7
The testimony and evidence presented at trial, together with all reasonable inferences
derived therefrom, is sufficient to sustain Appellant's convictions of aggravated assault and
conspiracy to commit aggravated assault. Here, there was ample testimony provided to show that
the victim sustained a serious bodily injury to her face. The victim testified that the Defendant and
another male had tried to come after her while she was at the bar. After the victim left the bar, the
7
Quoting Commonwealth v. Thomas, 65 A.3d 939, 943-44 (Pa. Super. 201&}.
5
Defendant and an unidentified male proceeded to follow the victim.8 The next thing the victim
remembers is waking up at Hershey Medical Center. There was a group of young men who
witnessed the assault and tried to help. Two young men witnessed the Appellant dropping the
victim and punching her. These juveniles also witnessed an unidentified male run away from the
scene with the victim's purse. When local law enforcement arrived, the victim was unconscious
and had to be transported to the hospital. The Appellant was apprehended at the scene and was
covered in blood while his co-conspirator fled the scene. The evidence suggests that the Appellant
and another unidentified male targeted the victim in Alva Bar and Restaurant, followed her out of
the bar, assaulted her leaving her badly injured and stole her purse while the victim was walking
to a friend's apartment. Accordingly, there was sufficient evidence to establish the elements of
aggravated assault and conspiracy to commit aggravated assault and the jury properly returned a
guilty verdict.
Appellant also asserts that the evidence was insufficient to sustain a conviction for robbery
and conspiracy to commit robbery. Appellant was charged with robbery under 18 Pa.C.S.A. §
370l(a)(l). Under section 3701(a)(l), "a person is guilty ofrobbery if, in the course of committing
a theft, he: inflicts serious bodily injury upon another." We have already set forth the .elements of
conspiracy above, but we note the factors that our Superior Court has set forth in determining
whether a conspiracy exists. Those factors are "(1) an association between alleged conspirators;
(2) knowledge of the commission of the crime; (3) presence at the scene of the crime; and (4) in
some situations, participation in the object of the conspiracy.', Commonwealth v. Lambert, 795
8
The victim testified that one of the males at the bar was wearing a white sweat suit. Several witnesses stated that
the Defendant, who was taken into custody, was also wearing a white sweat suit. Additionally ,this white sweat suit
was introduced as a Commonwealth's exhibit.
6
A.2d 1010, 1016 (Pa. Super. 2002). Additionally, 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; or
(2) his conduct is expressly declared by law to establish his complicity.
(d) Culpability of accomplice.-
When causing a particular result is an element of an offense, an accomplice in the
conduct causing such result is an accomplice in the commission of that offense, if
he acts with the kind of culpability, if any, with respect to that result that is sufficient
for the commission of the offense.
18 Pa.C.S. § 306(c)-{d). Accomplice liability "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 732, 739 (Pa.Super.2012).
Here, the victim testified that while she was at the bar, with her purse clearly visible, two
men tried to "accost" or come onto her. She then proceeded to leave the bar and the next thing she
remembers is waking up in the hospital. However, a group of young men were walking by and
noticed one male assaulting the victim (later identified as the Appellant) while the other male took
the victim's purse and ran away. The jury was able to conclude from the facts presented that these
two gentlemen saw the victim at a bar and connived a plan to follow the victim, beat her, and steal
her purse. Therefore, the evidence presented at trial is sufficient beyond a reasonable doubt to
sustain the conviction ofrobbery and conspiracy to commit robbery. Appellant acting as principal
or accomplice, planned to commit a theft of the victim's personal items, and in the attempt of
committing said theft, inflicting serious bodily injury on the victim.
7
Accordingly, this Court is satisfied that ample evidence existed to support the verdicts of
the jury beyond a reasonable doubt.
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Distribution:
Ryan Lysaght, Esquire, District Attorney's Office (APPEAL) T4
Deanna A. Muller, Esquire, Public Defender's Office 'J.0
Heath Zachary, Defendant MAI(
Court Administration - Criminal 'J..I
Clerk of Courts-Fi\ t
FILE COPY - Chambers of the Honorable Richard A. Lewis
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8