Com. v. Samneang, S.

J-A30012-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
SAMNEANG SAMNEANG
Appellant No. 1824 EDA 2013
Appeal from the Judgment of Sentence June 13, 2013
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0001092-2012
BEFORE: LAZARUS, J., MUNDY, J., and PLATT, J.*
MEMORANDUM BY LAZARUS, J.: FILED JANUARY 30, 2015
Samneang Samneang1 appeals from the judgment of sentence entered
in the Court of Common Pleas of Philadelphia County. After our review, we
affirm in part, and vacate and remand in part, and we rely upon the opinion
authored by the Honorable Charles J. Cunningham, III.
On November 1, 2011, Samneang and his co-defendant, Kanika Oum,2
shot a fifteen-year old boy in the face near the intersection of 75th Street
and Buist Avenue in Southwest Philadelphia. Following trial, a jury convicted
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
Appellant’s name is Samneang Sin, however he was charged and tried as
Samneang Samneang. See N.T. Trial, 2/27/13, at 49-50.
2
Co-defendant Oum’s related appeal is docketed at 1939 EDA 2013.
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Samneang of attempted murder,3 criminal conspiracy,4 aggravated assault,5
violation of the Uniform Firearms Act (VUFA),6 and possession of an
instrument of crime (PIC).7
The court sentenced Samneang to a term of imprisonment of 15-30
years for attempted murder, a consecutive term of 5-10 years on the
conspiracy conviction, and a consecutive term of 2-5 years on the VUFA
conviction, for an aggregate term of 22-45 years’ imprisonment. The court
imposed no further penalty on the PIC conviction. The court also determined
the aggravated assault conviction merged for sentencing purposes.
Samneang filed a timely appeal to this Court. On June 21, 2013, the
trial court ordered Samneang to file a Pa.R.A.P. 1925(b) Statement of Errors
Complained of on Appeal. In his Rule 1925(b) statement, Samneang raised
nine issues, five of which he has carried forward for our review:
1. The trial court through words, deeds and rulings
compromised appellant’s ability to win the trial by
nullifying the effectiveness of essential points being
made by the defense such that he did not receive a
fair trial;
____________________________________________
3
18 Pa.C.S. §§ 901(a), 2502(a).
4
18 Pa.C.S. §§ 903(a), 2502(a).
5
18 Pa.C.S. § 2702(a).
6
18 Pa.C.S. § 6106.
7
18 Pa.C.S. § 907(a).
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2. The trial court erred in not allowing the defense to
ask about the other two identification witnesses who
were unable to identify appellant and by preventing
defense counsel from questioning and attacking the
identification procedure;
3. The trial court erred in allowing the hearsay
testimony regarding what others said that Seagull
Mok said;
4. It was constitutional error for the Commonwealth to
assert that the defense should call witnesses to rebut
the Commonwealth case;
5. The trial court erred in sentencing appellant for two
inchoate crimes, i.e., attempted murder and
conspiracy to commit attempted murder.
Appellant’s Brief, at 14.
Upon review of the parties’ briefs, the relevant law, and the record as
a whole, we find that Judge Cunningham has correctly disposed of issues 1-4
in his opinion. See Opinion, 2/7/14, at 8-18. Therefore, we affirm the
convictions based on Judge Cunningham’s opinion.
With respect to Samneang’s fifth issue, the trial court acknowledged in
its Rule 1925(a) opinion that Samneang’s sentence was illegal. The court
sentenced Samneang to 15-30 years for attempted murder, and a
consecutive term of 5-10 years on the conspiracy to commit murder
conviction. As the trial court recognized, Samneang could not be sentenced
for two inchoate crimes for conduct designed to culminate in the same
offense, that is, murder. Section 906 of the Crimes Code precludes
conviction of more than one of the inchoate crimes of criminal attempt,
criminal solicitation or criminal conspiracy “for conduct designed to commit
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or to culminate in the commission of the same crime.” 18 Pa.C.S. § 906.
See Commonwealth v. Kelly, 78 A.3d 1136 (Pa. Super. 2013) (sentence
for conspiracy to commit attempted murder and attempted murder should
have merged); see also Commonwealth v. Martinez, 438 A.2d 984 (Pa.
Super. 1981) (where criminal conspiracy to commit burglary and subsequent
attempted burglary constituted “conduct designed to culminate in the
commission of the same crime,” that is, burglary, defendant should not have
been sentenced for both attempt and conspiracy, but should have only been
sentenced for one or the other); Cf. Commonwealth v. Jacobs, 39 A.3d
977 (Pa. 2012) (where defendant’s convictions for two inchoate crimes had
separate criminal purposes they did not merge).
We agree with Judge Cunningham’s post-sentence assessment.
Therefore, we vacate the judgment of sentence and remand for resentencing
in accordance with 18 Pa.C.S. § 906. See Commonwealth v. Watts, 465
A.2d 1267 (Pa. Super. 1983). Counsel is directed to attach a copy of the trial
court’s opinion in the event of further proceedings in this matter.
Affirmed in part; vacated and remanded in part. Jurisdiction
relinquished.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/30/2015
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