Com. v. Kline, T., Jr.

J-A27035-10
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
TERRY DAVID KLINE, JR.,
Appellant No. 148 MDA 2009
Appeal from the Judgment of Sentence Entered December 19, 2008
In the Court of Common Pleas of Berks County
Criminal Division at No(s): CP-06-CR-0005241-2007
BEFORE: BENDER, J., GANTMAN, J., and FREEDBERG, J.*
MEMORANDUM BY BENDER, P.J.: FILED AUGUST 08, 2014
Terry David Kline, Jr., appeals from the judgment of sentence of
conspiracy to commit third degree murder, aggravated assault, and
conspiracy to commit aggravated assault. We affirm.
are that on the night of September 6, 2007, five men including Appellant,
his brother, Kenneth Kline (he
-fourth birthday. Houser drove the
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*
Judge Freedberg did not participate in the consideration or decision of this
case.
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five men in his vehicle and the group arrived at the bar between midnight
and 12:30 a.m. on the morning of September 7, 2007. After the bar closed
car. A witness, who was also standing outside of the bar, claimed that
Appellant, Kenneth, a
Appellant wanted to fight someone just for the sake of fighting. N.T. Trial,
11/3-7/08, at 167. The witness also stated that Appellant was out of control
and argued with another individual in the vicinity of the group. Houser
interceded, however, and at his urging, Appellant, Kenneth, Gearhart, and
Once underway, however, Appellant began accusing Houser of
Id. at 326. Appellant
out of the car to fight him. Houser was able to calm Appellant down and
convince him to get back into the vehicle.
As the group resumed their journey home, they came upon three
individuals standing on the sidewalk speaking to one another. Gearhart
suggested that if they wanted to start a fight, they should provoke one of
these three people. Appellant, Kenneth, and Gearhart told Houser to stop,
at which p
Id. at 331. Houser
and Weber drove around the corner and parked near the intersection of Main
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and Noble Streets. Meanwhile, Appellant, Kenneth, and Gearhart began to
aggressively accuse the three individuals of making derogatory statements
to them. One of the individuals claimed that the men were yelling and
getting close enough to make her feel threatened. When a police car drove
down a n id. at 218, Appellant,
on Main Street.
When the three men reached Main Street, they encountered another
bystander, Kyle Quinn. Quinn, who was walking to his dormitory, was
talking on his cell phone when he was confronted by Kenneth. Kenneth
asked Quinn to whom he was speaking, and when Quinn responded that he
it into the street. Appellant, Gearhart, and Kenneth surrounded Quinn and
began yelling at him. Eventually, Appellant threw a punch at Quinn. In the
midst of the fight, Gearhart picked up a table leg, which he found in the
vicinity, and swung it with great force, striking Quinn on the left side of his
head tore the artery at the base of his brain, which caused massive bleeding
resulting in his death.
After Quinn fell to the ground, Ken
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When Appellant finally returned to the car, he and his two cohorts
encouraged Houser to drive away. However, before they could flee, Police
Officer Corporal Paul Clery of the Kutztown Borough Police Department
additional police officers arrived at the scene and each of the five men were
taken into custody.
Both Appellant and Kenneth subsequently gave statements to police
on September 7, 2007, and again on September 10, 2007. While the men
initially denied any involvement in the attack on Quinn, Appellant eventually
admitted that Kenneth approached Quinn and exchanged words, after which
confessed that he began arguing with Quinn, and that he saw Gearhart pick
up an object and hit Quinn with it. He stated that Quinn fell to the ground
police that he began arguing with Quinn in order to protect his brother, but
acknowledged that Quinn did not strike at any of the three men.
Appellant, Kenneth, and Gearhart were all charged with various
subsequently entered a guilty plea to third-degree murder and conspiracy to
commit aggravated assault. He was sentenced to an aggregate term of 20
Kenneth proceeded to trial as co-defendants, both charged with third-degree
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murder, conspiracy to commit third-degree murder, aggravated assault, and
conspiracy to commit aggravated assault. While the jury ultimately
acquitted both Appellant and Kenneth of third-degree murder, it returned
guilty verdicts on the remaining charges. Appellant was subsequently
prisonment for the conspiracy to commit
third-
probation for the crime of aggravated assault. The offense of conspiracy to
commit aggravated assault was deemed to merge for sentencing purposes.
Appellant filed a timely notice of appeal, as well as a timely concise
statement of matters complained of on appeal pursuant to Pa.R.A.P.
1925(b). Herein, he raises the following two issues for our review:
A. The evidence was insufficient as a matter of law and against
the weight of the evidence to convict [] Appellant of
[conspiracy to commit] third[-]degree murder, aggravated
assault and conspiracy [to commit aggravated assault] where
there was no evidence presented that [] Appellant had the
intent
accomplice liability.
B. The sentence was excessive and an abuse of discretion based
on the sentencing guidelines and the social history that was
presented to the court. The sentence also violated the State
and Federal Constitutions in that it constitutes cruel and
unusual punishment.
Our Court filed an initial memorandum decision in this case on
February 10, 2011. Therein, we concluded that the offense of conspiracy to
commit third degree murder was a legal nullity. Commonwealth v. Kline,
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148 MDA 2009, unpublished memorandum at 6-8 (Pa. Super. filed February
10, 2011).1
prior decision in Commonwealth v. Clinger, 833 A.2d 792 (Pa. Super.
is
neither intentional nor committed in the course of a
Clinger in Commonwealth v. Weimer,
977 A.2d 1103, 1105 (Pa. 2009) (stating, in a parenthetical accompanying a
citation to Clinger, that Clinger
is impossible for one to intend to commit an unintentional act, it is
impossible to commit [the] crime of conspiracy to commit third degree
Because we concluded in our initial memorandum decision that there
was no such offense as conspiracy to commit third degree murder, we
sentencing issue. We did, however, assess the merits of his challenge to the
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1
We acknowledged that Appellant did not challenge his conviction for
conspiracy to commit third degree murder on this basis. However, we
reasoned that we were required to raise this issue sua sponte, as it impacted
impose a sentence for that offense. Id. at 6 n.2 (citing Commonweatlh v.
Kozrad, 499 A.2d 1096, 1097-
[C]ourt to correct an illegal sentence sua sponte Commonwealth v.
Boerner, 422 A.2d 582, 588 n.11 (Pa. Super. 1980) (finding that where it is
beyond the power of the court to impose a sentence, an issue regarding the
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sufficiency and weight of the evidence to support his convictions for
aggravated assault and conspiracy to commit aggravated assault. We
against the weight of
the evidence. See Kline, 148 MDA 2009, at 8-13.
On October 30, 2013, our Supreme Court issued Commonwealth v.
Fisher, 80 A.3d 1186 (Pa. 2013), which abrogated Clinger and held that
conspiracy to commit third degree murder is a cognizable offense. Id. at
1195. On March 5, 2014, our Supreme Court issued a per curiam order
granting allowance of appeal in this case and vacating our decision pursuant
to Fisher. The Court remanded this matter to our Court for further
proceedings.
Now,
that the evidence was insufficient to support his convictions for conspiracy to
commit third degree murder, aggravated assault, and conspiracy to commit
aggravated assault; that all three of these convictions were contrary to the
weight of the evidence; and that the court abused its discretion in fashioning
his sentence.
evidence to sustain his convictions.
The standard we apply in reviewing the sufficiency of the
evidence is whether viewing all 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
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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
-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 credibility of the witnesses
and the weight of the evidence produced, is free to believe all,
part or none of the evidence.
Commonwealth v. Troy, 832 A.2d 1089, 1092 (Pa. Super. 2003)
(citations omitted).
Here, Appellant maintains that the evidence was insufficient to prove
he conspired with Kenneth and Gearhart to attack Quinn. Instead, he claims
that he was merely present during the assault, which was demonstrated by
the evidence that he did not physically touch Quinn. Appellant also
sic] intended to harm
insufficient to support his convictions.
al conspiracy is defined
by our Crimes Code 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:
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(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(a). Our Court has also summarized the elements of
criminal conspiracy as follows:
To sustain a conviction for criminal conspiracy, the
Commonwealth must establish that the defendant (1) entered
into 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. This
overt act need not be committed by the defendant; it need only
be committed by a co-conspirator.
Commonwealth v. McCall, 911 A.2d 992, 996 (Pa. Super. 2006) (citations
and quotation marks omitted).
ecific conviction for conspiracy to commit
aggravated assault, this Court has stated that to sustain such a conviction,
commission of aggravated assault, an agreement with a co-conspirator, and
Commonwealth v.
Thomas, 65 A.3d 939, 945 (Pa. Super. 2013). Moreover, for the offense of
conspiracy to commit third degree murder, our Supreme Court has clarified:
If a defendant acts with his co-conspirators in brutally attacking
the victim with the intention of killing him, he conspires to
commit first degree murder; if the defendant performs the same
action but does not care whether the victim dies or not, he
conspires to commit third degree murder. In the latter example,
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rather, he intended to aid a malicious act resulting in a killing.
Malice is not the absence of any intent, just the specific intent to
ends the underlying act (the
beating) which results in death, the evidence supports the
charge of conspiracy to commit third degree murder.
Fisher, 80 A.3d at 1195 (emphasis in original).
In this case, it is clear from the factual summary, stated supra, that
the evidence was sufficient to enable the jury to find, beyond a reasonable
doubt, that Appellant conspired with Gearhart and Kenneth to commit the
aggravated assault and third degree murder of Quinn. Namely, witnesses
testified that after Appellant left the bar, he was looking for a fight and tried
to engage several people in altercations, including his companion, Houser.
When Appellant and his cohorts came upon Quinn, they encircled him and
Appellant threw the first punch. Appellant admitted that during the course
of the fight, he saw Gearhart pick up an object and hit Quinn hard from
behind. After Quinn fell to the sidewalk, Appellant stood over his body
and directed him to leave the scene, admittedly in an attempt to run from
the police.
This evidence proved that Kenneth, Gearhart, and Appellant conspired
to viciously attack Quinn, with the intent of causing him serious bodily
injury, and without regard for whether Quinn lived or died. Therefore, the
evidence was sufficient to convict Appellant of the crimes of conspiracy to
commit aggravated assault and conspiracy to commit third degree murder.
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Consequently, Appellant is also criminally liable for the aggravated assault
committed by Gearhart. See Commonwealth v. Lambert, 795 A.2d 1010,
committing the underlying crime, he is still criminally liable for the actions of
his co-conspirators ta
omitted).
Appellant next contends that his convictions are contrary to the weight
of the evidence, and simply reiterates the arguments proffered in support of
his challenge to the sufficiency of the evidence.
A claim alleging the verdict was against the weight of the
evidence is addressed to the discretion of the trial court.
Accordingly, an appellate court reviews the exercise of the trial
court's discretion; it does not answer for itself whether the
verdict was against the weight of the evidence. It is well settled
that the jury is free to believe all, part, or none of the evidence
and to determine the credibility of the witnesses, and a new trial
based on a weight of the evidence claim is only warranted where
the jury's verdict is so contrary to the evidence that it shocks
one's sense of justice. In determining whether this standard has
been met, appellate review is limited to whether the trial judge's
discretion was properly exercised, and relief will only be granted
where the facts and inferences of record disclose a palpable
abuse of discretion.
Commonwealth v. Houser, 18 A.3d 1128, 1135-1136 (Pa. 2011) (citations
and internal quotation marks omitted).
the trial court stated:
For the reasons set forth in the previous section [addressing
clear that the verdict is in no way contrary to the evidence.
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Clearly, the verdict of the jury in this case could not shock
anyo
Trial Court Opinion (TCO), 6/30/09, at 18. Based on our discussion of the
convictions, we ascertain no abuse of discretion
meritless.
Finally, Appellant alleges that the trial court abused its discretion in
he Honorable Paul M.
Yatron of the Court of Common Pleas of Berks County thoroughly addressed
portion of the record where he expressed his rationale for the sentence
imposed. See TCO at 18-21 (citing N.T. Sentencing Hearing, 12/19/08, at
74-80). After thoroughly reviewing the briefs of the parties, the applicable
case law, and the sentencing transcript, we are satisfied th
s discretion.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/8/2014
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