Com. v. Kornegay, D.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
DION KORNEGAY :
:
Appellant : No. 1188 EDA 2018
Appeal from the Judgment of Sentence April 5, 2018
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0001939-2017
BEFORE: BOWES, J., KUNSELMAN, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY BOWES, J.: FILED SEPTEMBER 10, 2019
Dion Kornegay appeals from judgment of sentence of twelve to twenty-
four years of imprisonment, which was imposed after a jury found him guilty
of criminal trespass, conspiracy to commit criminal trespass, and conspiracy
to commit aggravated assault. Appellant challenges the sufficiency of the
evidence underlying his convictions, and the legality of his consecutive
sentences imposed at the two conspiracy convictions. We affirm the
convictions, vacate the sentence, and remand for resentencing.
On the night of January 24, 2017, Malika Adamson (the “victim”),
attended a party with her friend/Godsister Lateefah Perry, and Perry’s friend,
Chantey, at Iddin William’s house at 4513 North 13th Street in Philadelphia.
N.T. Jury Vol. 2, 12/5/17, at 36, 52-54. Appellant, who was Ms. Perry’s
boyfriend, and his brother Beano, also were present at the party. During the
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party, the victim got into an argument with Beano and a physical fight ensued.
Appellant and Ms. Perry broke up the fight. The victim left the party and called
the police. Id. at 52-56. Police responded, prepared a report, but did not
make any arrests. Id. at 34-35.
The next morning, the victim sought medical attention at Temple
Hospital for injuries she sustained in the fight with Beano. Id. at 60-61. She
also had several telephone communications with Appellant, Chantey, and
Iddin regarding the fight. Id. at 62. The victim was adamant about having
Beano arrested for assaulting her, but Appellant did not want her to involve
law enforcement. Appellant attempted to convince the victim that she should
settle her dispute with Beano as they would on the streets: by fighting
someone they chose for her to fight or arranging for someone to fight Beano
on her behalf. Id. at 62-64. The victim refused. Id.
During the course of the next two days, there were numerous
communications between the victim, Appellant, and Iddin. On January 26,
2017, Appellant called the victim and told her that he had someone for her to
fight. The victim advised him that she was not going to fight, and that she
was going to get his brother locked up. Appellant told her not to go anywhere
and that he was on his way to her house. Id. at 153. Transcripts of two 911
calls made by the victim shortly thereafter were introduced into evidence.1
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1 Exhibits setting forth the contents of the 911 calls were introduced into
evidence, but the exhibits are not contained in the certified record.
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Between 6:00 p.m. and 7:00 p.m., the victim was standing on the front
steps of her home talking on the telephone. Her younger brother, her two
young children, and the children of a friend were inside the home. Id. at 68-
72. She saw Appellant, Iddin, his brother Si, and an unknown female walking
towards her. Id. at 70. The victim turned and ran up the steps to the door
of her home and the four individuals gave chase. She succeeded in getting
inside, but met with resistance from Appellant and his cohorts when she tried
to close the door behind her. As they tried to force their way into the victim’s
home, Appellant’s hand crossed the threshold of the door. Id. at 72. It was
not until the victim struck it with a brick that he removed it from the doorway
and the victim and her brother were able to close the door. Id. at 73. As the
victim called police, Appellant and his cohorts walked away from the residence
towards 30th Street. Id. at 75.
When the victim saw her assailants walking away, she went outside and
yelled, “The cops are on their way. Don’t leave now.” Id. at 75-76. At the
time, Appellant and the others were located approximately a block away next
to a black Toyota that the victim identified as belonging to Lateesha Perry. As
the others entered the vehicle, Appellant retrieved a gun from his pocket and
began shooting in her direction. Id. at 79. The victim ran back toward her
home, and Appellant and the others sped off in reverse toward 29th Street in
the black car. Id. at 80.
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Detective Gino Andracchio and another detective recovered four fired
cartridge casings from the scene at 30th Street and Gordon Street. Detective
Andracchio also took photographs of bullet holes in residences located at 3015
and 3017 West Gordon Street. Id. at 177-84. These were introduced into
evidence by the Commonwealth at trial. In addition to the testimony of the
victim and several of the detectives, the Commonwealth introduced testimony
from its ballistics expert that the cartridge casings were fired from the same
.38 caliber weapon with a hemispherical firing pin, consistent with either a
Glock 42 or a Kahr P380, but no weapon was recovered. Detective James
Dunlap, a detective with the Cellular Analysis Survey Team, testified, based
upon cell phone records obtained for Appellant and Ms. Perry, that at the time
of the events, both of them were located within one square mile of the victim’s
house and in communication with each other.
Appellant was charged with attempted murder, aggravated assault,
conspiracy to commit aggravated assault, burglary, conspiracy to commit
burglary, firing a firearm without license, carrying a firearm on public streets
or public property in Philadelphia, possession of a criminal instrument, criminal
trespass, and conspiracy to commit criminal trespass. He and Ms. Perry were
tried together before a jury. On December 8, 2017, the jury found Appellant
guilty of criminal trespass, conspiracy to commit criminal trespass, and
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conspiracy to commit aggravated assault.2 The trial court deferred sentencing
to permit completion of a presentence investigation. On April 5, 2018, the
court sentenced Appellant to the following terms of incarceration: ten to
twenty years for conspiracy to commit aggravated assault; a consecutive term
of two to four years for conspiracy to commit criminal trespass; and a
concurrent two to four years for criminal trespass.
Appellant filed a timely notice of appeal to this Court and complied with
the trial court’s order to file a Pa.R.A.P. 1925(b) concise statement of errors
complained of on appeal. He presents four issues for our review:
(1) Was the evidence insufficient to sustain a conviction of criminal
trespass?
(2) Was the evidence insufficient to sustain a conviction of
conspiracy to commit criminal trespass?
(3) Was the evidence insufficient to sustain a conviction of
conspiracy to commit aggravated assault?
(4) Did the [trial] court err in sentencing the Appellant on
conspiracy to commit criminal trespass and conspiracy to commit
aggravated assault where if there was a conspiracy there was but
one conspiracy?
Appellant’s brief at 3.
Appellant’s first three contentions challenge the sufficiency of the
evidence underlying his convictions. Our standard of review of sufficiency
claims is well-settled:
A claim challenging the sufficiency of the evidence is a question of
law. Evidence will be deemed sufficient to support the verdict
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2Co-defendant Perry was charged with the same offenses, but convicted only
of conspiracy to commit aggravated assault.
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when it establishes each material element of the crime charged
and the commission thereof by the accused, beyond a reasonable
doubt. Where the evidence offered to support the verdict is in
contradiction to the physical facts, in contravention to human
experience and the laws of nature, then the evidence is insufficient
as a matter of law. When reviewing a sufficiency claim[,] the court
is required to view the evidence in the light most favorable to the
verdict winner giving the prosecution the benefit of all reasonable
inferences to be drawn from the evidence.
Commonwealth v. McClelland, 204 A.3d 436, 441 (Pa.Super. 2019)
(citations omitted).
Appellant first asserts that the evidence was insufficient to sustain his
conviction of criminal trespass pursuant to 18 Pa.C.S. § 3503 (a)(1)(ii). He
argues that the presence of his hand in the victim’s doorway did not constitute
“breaking in.” Appellant’s brief at 8.
The criminal trespass statute, 18 Pa.C.S. § 3503 (a)(1)(ii), provides: “A
person commits an offense if, knowing that he is not licensed or privileged to
do so, he: . . . . (ii) breaks into any building or occupied structured or
separately secured or occupied portion thereof.” Id. “Breaks into” under this
subsection is defined as: “To gain entry by force, breaking, intimidation,
unauthorized opening of locks, or through an opening not designed for human
access.” 18 Pa.C.S. § 3503(a)(3).
In Commonwealth v. Gordon, 477 A.2d 1342, 1348 (Pa.Super. 1984)
this Court held that “proof of entry does not require proof of breaking-in; it is
sufficient to prove that any part of the body of the intruder entered the
premises.” In Commonwealth v. Giddings, 686 A.2d 6, 12 (Pa.Super.
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1996), (overruled on other grounds by Commonwealth v. Clark, 746 A.2d
1128 (Pa.Super. 2000)), we held that “the entry requirement of our criminal
trespass statute is satisfied by insertion of an instrument which is held or
manipulated by the defendant, or so closely associated with his body that it
essentially becomes an extension thereof.”
The record reflects that Appellant and his cohorts knew they did not
have permission to enter the victim’s home when she and her brother tried to
bar their entry. Nonetheless, they made a concerted effort to force their way
into the victim’s home. In the process, Appellant’s hand crossed the threshold
of the door into the home. The unauthorized presence of Appellant’s hand in
the home was sufficient to support Appellant’s conviction of criminal trespass.
This claim warrants no relief.
Appellant asserts further that the evidence was insufficient to sustain
his conviction of conspiracy to commit criminal trespass. He contends that
there was no agreement among the four individuals to enter the victim’s
home. Rather, the trespass was spontaneous because they could not have
anticipated that the victim would be located outside of her home when they
arrived. Appellant’s brief at 9-10. Additionally, Appellant contends that if he
and the others had agreed to break into the victim’s home, a locked door
would not have stopped them, and they would have brought the tools
necessary to facilitate entry. Id. at 10.
Criminal conspiracy is defined as:
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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 (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.
18 Pa.C.S. § 903. In order to prove 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. Chambers, 188 A.3d 400, 409-410 (Pa.
2018) (quoting Commonwealth v. Rios, 684 A.2d 1025, 1030 (Pa. 1996)).
The Chambers Court reiterated that an agreement to complete an undefined
objective at an undefined time is not enough; “the agreement must rest upon
the mutual specific intent to carry out a particular criminal objective.” Id.This Court held in Commonwealth v. Irwin, 134 A.3d 67, 76
(Pa.Super. 2016), that “circumstantial evidence may provide proof of the
conspiracy.” Additionally, an agreement need not be formal or explicit and
may be a common understanding.
An agreement can be inferred from a variety of circumstances
including, but not limited to, the relation between the parties,
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.
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The record establishes that Appellant and three other individuals arrived
at the victim’s home together. There was evidence that co-defendant Perry
was located in her car nearby. N.T. (Jury) Vol. 2, 12/5/17, at 70-71. Appellant
and his cohorts pursued the victim as she ran into her home and together they
attempted to gain entrance by preventing her from closing the door. Id. at
73. The trial court found this evidence of shared intent “more than sufficient
to sustain the conspiracy to commit criminal trespass conviction.” Trial Court
Opinion, 11/29/18, at 5.
Viewing the record in the light most favorable to the Commonwealth,
we agree there was evidence from which the jury could reasonably infer that
Appellant and the others informally agreed to break into the victim’s home to
accomplish their objective. Appellant and his friends had unsuccessfully
attempted to persuade the victim to abandon her intention to seek legal
recourse against Beano in favor of street justice. When she refused, Appellant
told her to stay home as he was on his way to her house with someone to
fight her. Just a short time later, Appellant and his cohorts arrived together
at the victim’s house to carry out that plan. They pursued her when she ran
for the safety of her home, and made a concerted effort to prevent her from
closing the door barring them from the premises. Such evidence supports the
jury’s finding that Appellant and his cohorts shared the criminal intent to
commit criminal trespass.
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Appellant’s third contention is that the evidence was insufficient to
sustain his conviction of conspiracy to commit aggravated assault. Appellant
asserts that there was no agreement to shoot at the victim because the
conspiracy, if any, ended once the individuals walked away from her home.
Appellant maintains that the shooting was a spontaneous response to the
victim’s taunting. Appellant’s brief at 11-12. The presence of three other
individuals at the scene when he made the decision to shoot in the direction
of the victim was insufficient to sustain a conviction for conspiracy to commit
aggravated assault.
A person commits aggravated assault when he: “1) attempts to cause
serious bodily injury to another, or causes such injury intentionally, knowingly
or recklessly under circumstances manifesting extreme indifference to the
value of human life.” 18 Pa.C.S. § 2702 (a)(1). A conspiracy to commit
aggravated assault requires proof of an agreement or shared criminal intent
of two or more persons to cause serious bodily injury.
Appellant characterizes the aggravated assault as his act of firing shots
at the victim. However, the trial court found the evidence that Appellant and
the others arrived at the victim’s house together, attempted to break-in
together in order to assault her, and left the scene together after Appellant
shot at her, sufficient to sustain the conviction for conspiracy to commit
aggravated assault.
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The communications between the victim and Appellant and his co-
conspirators during the two days prior to the events herein evidence an
attempt to convince the victim to handle the matter with Beano “like they
would in the streets,” instead of bringing law enforcement into the situation.
N.T. (Jury) Vol. 2, 12/5/17, at 62-64. Despite her refusal, Appellant stated
that he was getting someone to fight her. On the evening of January 26 th,
Appellant told the victim not to go anywhere and that he was on his way to
her house. Id. at 153. Appellant and his cohorts arrived together shortly
thereafter, but were thwarted in their efforts to assault the victim. Such
evidence was sufficient to permit the jury to conclude that Appellant conspired
with at least two other individuals to cause serious bodily injury to the victim.
No relief is due.
Appellant’s final contention is that the trial court erred in sentencing him
on both conspiracy to commit criminal trespass and conspiracy to commit
aggravated assault. Appellant’s brief at 13. He contends that, if there was a
conspiracy, there was only one conspiracy, and cites 18 Pa.C.S. § 903(c) in
support of his position. That provision defines conspiracy with multiple
criminal objectives. It provides that, “If a person conspires to commit a
number of crimes, he is guilty of only one conspiracy so long as such multiple
crimes are the object of the same agreement or continuous conspiratorial
relationship.”
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Appellant contends that in determining whether there was one
conspiracy or multiple conspiracies, there are factors to be considered that
were identified in Commonwealth v. Savage, 566 A.2d 272 (Pa.Super.
1989). See also Commonwealth v. Barnes, 871 A.2d 812 (Pa.Super.
2005). The factors are the number of overt acts in common; the overlap in
personnel; the time period during which the acts took place; the extent to
which the purported conspiracies share common objectives; and the degree
to which interdependence is needed for the overall operation to succeed.
Savage, supra at 278. Appellant maintains that application of these factors
to the circumstances herein establishes that there was only one conspiracy as
the personnel overlapped, the victim and defendants were the same, and the
conspiracies occurred in the same location just minutes apart. Hence,
Appellant contends that the trial court erred in imposing sentences on both
criminal conspiracy convictions as there was only one conspiracy.
The Commonwealth concedes there is overlap in the facts establishing
elements of each conspiracy, and “does not oppose a remand for the limited
purpose of resentencing [Appellant] on a single count of conspiracy.”
Commonwealth’s brief at 16. It maintains that it was not precluded from
pursuing multiple conspiracies at trial, but that the trial court could not impose
separate sentences on multiple conspiracies unless they “were committed with
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a separate objective in mind.” Id. at 17 (quoting Commonwealth v. Bright,
522 A.2d 573, 577 (Pa.Super. 1987)).3
In Commonwealth v. Jacobs, 39 A.3d 977 (Pa. 2012), our Supreme
Court examined § 903 and § 906 in determining whether convictions merged,
or just sentences, in cases involving multiple inchoate crimes. The Court
clarified that “it is not a violation of Section 906 for the jury to find a defendant
guilty of multiple inchoate crimes designed to culminate in the same crime; a
problem arises only when the trial court imposes multiple sentences for those
inchoate crimes designed to culminate in the same crime.” Id.; see § 906
(providing that “a person may not be convicted of more than one of the
inchoate crimes of criminal attempt, criminal solicitation or criminal conspiracy
for conduct designed to commit or to culminate in the commission of the same
crime.”).4 It added further that “inchoate crimes merge [for sentencing
purposes] only when directed to the commission of the same crime, not
merely because they arise out of the same incident.” Id. at 983. In Jacobs,
charges of attempted escape and conspiracy to commit escape were designed
to culminate in the same crime, and thus, the Court held that the appellant
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3 We appreciate the candor of the Commonwealth.
4 The Court interpreted the word “convict” in § 906 to mean the entry of
judgment of sentence, rather than the jury’s finding of guilt. Accordingly, the
Jacobs Court found that it was not a violation of § 906 for a jury to find a
defendant guilty of multiple inchoate crimes designed to culminate in the same
crime.
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could receive only one sentence for his crimes. Compare Commonwealth
v. Graves, 508 A.2d 1198 (Pa. 1986) (holding that convictions for conspiracy
and solicitation did not merge for sentencing purposes where defendant
conspired to assault three police officers and solicited another gang member
to murder one of the other officers as they were directed at different ends).
Recently, in Commonwealth v. Kirkland, __ A.3d __, 2019 Pa. Super.
Unpub. LEXIS 2666 (Pa.Super. July 12, 2019), this Court sua sponte
addressed a legality of sentence issue stemming from two conspiracy
convictions upon which separate sentences were imposed in a non-
precedential decision. After applying the factors identified in Savage, supra,this Court determined that there was one conspiracy as all of the crimes
progressed from a single understanding, occurred at the same time and place,
and were committed by the same cohorts who acted in concert. We concluded
that there was a common plan to achieve a single goal: the robbery of a pizza
deliveryman. Thus, the trial court erred in imposing sentence for both
conspiracy to commit burglary and conspiracy to commit aggravated assault.
Although we are not bound by Kirkland, we find its facts analogous and
its reasoning persuasive.5 Here, as in Kirkland, the evidence establishes a
single continuing conspiracy to commit aggravated assault. Appellant and his
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5Based on a recent change in Pa.R.A.P. 126(b)(2), effective May 1, 2019, any
memorandum decision of this Court filed after that date may be cited for its
persuasive value.
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co-conspirators arrived at the victim’s home with the intention to “handle the
matter like they would in the streets,” which meant subjecting the victim to
an assault from the unidentified female. In order to accomplish that goal, the
co-conspirators either would have accosted the victim outside her home,
peacefully gained access to her in her home, or forced their way into her
home. In any event, the criminal trespass was but one step in furtherance of
the larger plan to assault the victim. Accordingly, although the concerted
forcible entry of her home constituted a separate offense, it was a part of the
overall agreement to assault the victim. For these reasons, we find that there
was one continuing conspiracy and that the charges of conspiracy to commit
criminal trespass and conspiracy to commit aggravated assault should have
merged for sentencing purposes.
Herein, Appellant was sentenced to consecutive terms of imprisonment
at the two conspiracy counts. In addition, this is a multi-count case, and the
sentence imposed for criminal trespass runs concurrently to the sentence for
conspiracy to commit criminal trespass. Since the overall sentencing scheme
is disturbed by our holding that Appellant should not have been sentenced on
the conspiracy to commit criminal trespass, all of the sentences must be
vacated, and the matter remanded for resentencing.
Therefore, we affirm the convictions, but vacate the sentence in its
entirety, and remand for resentencing in accordance herewith.
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Convictions affirmed. Sentences vacated. Remanded for resentencing.
Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/10/19
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