Com. v. Fariss, K.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
KHEMMATHAT FARISS :
:
Appellant : No. 2046 EDA 2019
Appeal from the Judgment of Sentence Entered June 10, 2019
In the Court of Common Pleas of Chester County Criminal Division at
No(s): CP-15-CR-0002231-2017
BEFORE: BENDER, P.J.E., LAZARUS, J., and STRASSBURGER, J.*
MEMORANDUM BY LAZARUS, J.: Filed: August 25, 2020
Khemmathat Fariss appeals from the judgment of sentence, entered in
the Court of Common Pleas of Chester County, following his plea of guilty but
mentally ill to one count each of attempted murder, robbery of a motor
vehicle, burglary, kidnapping, aggravated assault, unlawful restraint,
terroristic threats, false imprisonment, simple assault, and access device
fraud; two counts of strangulation; three counts each of robbery, theft by
unlawful taking, and receiving stolen property; and four counts of possession
of an instrument of crime (PIC).1 Upon careful review, we affirm.
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S.A. §§ 901(a); 3702(a); 3502(a)(1)(i); 2901(a)(2); 2702(a)(1);
2902(a)(1); 2706(a)(1); 2903(a); 2701(a)(1); 4106(a)(1)(ii); 2718(a)(1),
(2); 3701(a)(1)(ii), (iii), (iv); 3921(a); 3925(a); and 907(a), respectively.
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The trial court relied on the Commonwealth’s recitation of the facts and
circumstances, set forth as follows, at the sentencing hearing:
[On February 22, 2017,] prior to [] 11:00 a.m.[, Fariss], age
[seventeen], entered the victim’s home [in] East Brandywine
Township, Chester County, [] and stole some money and her
credit cards.
The victim[,] C[.]K[.], who was [seventy-two years old] at the
time and lived alone in a small cottage [], discovered the cards
missing and contacted [the] police[,] but decided she would
complete the report after she returned from work. She went to
work and returned home [at] about 5:00 p.m.
When she entered her home[,] she was immediately attacked by
[Fariss,] who was wearing black gloves and a mask. [Fariss]
strangled [C.K.] and she lost consciousness as a result[. C.K.]
regained consciousness as [Fariss] was restraining her. [Fariss]
covered her head with a black fabric reusable shopping bag and
secured it tightly around her neck with [d]uct tape. [Fariss] bound
[C.K.’s] hands with zip ties and cloth, bound her knees and ankles
with [d]uct tape[,] and threatened her by saying, [“Y]ou’ll be with
Jesus.[”]
[Fariss] then forced [C.K.] into a small dark closet under the stairs
of the basement and jammed the outside closet latch with a screw
to prevent [C.K.’s] exit, thereby, creating a condition which could
have led to her death. [C.K.] was left there bound with no food,
water, or light. The closet was in an unheated part of the house.[2]
[C.K.] remained there in the closet until she was found by her
daughter-in-law four days later on February 26[,] 2017.
When she was found[, C.K.] was suffering from severe
dehydration, malnutrition, and trauma. She had bruising under
her eyes. Her nose and mouth were bloodied. She had bruises,
blisters, and avulsions on her wrist and had ligature marks on her
right wrist. The first responder who removed the bag from her
____________________________________________
2 The closet was not heated, and although it was February, the
temperature was in the seventies that week, which helped C.K. stay
alive. See N.T. Sentencing, 5/2/19, at 6.
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head said that the [d]uct tape around [C.K.’s] neck was so tight
that it was difficult to cut without risking cutting [her] neck.
[C.K.] spent about a week in the hospital. She was diagnosed
with acute renal failure[, a urinary tract infection, and]
rhabdomyolysis, which is a condition [that] results from dying
muscle fibers releasing contents into the bloodstream[] and [] can
be caused by prolonged immobilization[. C.K.] also had infected
wounds from lying in a prone position for so long, which required
treatment over a course of months.
While [Fariss] was at [C.K.’s] home[,] he stole her Fiat 500, an
iPhone, a laptop, credit cards, clothing[,] and jewelry. [Fariss]
was later identified on surveillance video at a 7-Eleven in the area
of Baltimore, Maryland[,] where he arrived in [C.K.’s] car and used
her credit card to make a purchase of $12.90 at around 10:00
p.m. on February 22[, 2017,] the day of the attack.
[Fariss] had absconded from Devereux residential treatment
facility in Wallace Township early on the morning he attacked
[C.K.]. [Fariss] returned to Devereux two days later on [February
24, 2017,] which was still two days before [C.K.] was discovered.
[C.K.’s] phone was later found on a windowsill near [Fariss’] room
[at Devereux].
When [Fariss] was arrested several days later[,] he had bruises
on the inside of his arm consistent with choking [C.K.] The crime
lab later determined that a fingerprint found on [d]uct tape used
to bind [C.K.] matched [Fariss’ fingerprint,] and that th[e]
fingerprint was [made with] [C.K.’s] blood.
[C.K.’s] car was found a few months later[,] after the charges
were filed[,] on a remote part of the Devereux facility’s property.
[Fariss] returned to Devereux two days after the attack[. H]e told
no one what he did.
During the time he was gone[, Fariss] had [C.K.’s] phone and
likely had access to other phones. [Fariss] was accessing social
media. There were no anonymous calls or tips made to authorities
alerting them to [C.K.’s] condition.
Trial Court Opinion, 9/17/19, at 5-6, (quoting N.T. Sentencing, 5/2/19, at 3-
7) (internal brackets omitted).
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On March 2, 2017, the Commonwealth filed a juvenile petition charging
Fariss with the above-stated crimes. Three days later, the Commonwealth
filed a petition seeking to transfer the matter to the court of common pleas to
have Fariss tried as an adult. Following two hearings on the transfer petition,
the court entered an order granting the Commonwealth’s transfer request on
July 7, 2017. On January 31, 2019, Fariss entered an open plea of guilty but
mentally ill to all charges against him. On February 5, 2019, the court
conducted a hearing to determine whether Fariss was mentally ill. Ultimately,
the court accepted Fariss’ open plea of guilty but mentally ill on April 2, 2019.
On May 2, 2019, the court sentenced Fariss to an aggregate sentence
of twenty to eighty years’ incarceration. On May 13, 2019, Fariss filed a post-
sentence motion seeking reconsideration of his sentence, which the court
granted. Thereafter, the court reduced Fariss’ sentence to an aggregate term
of twenty to fifty years’ incarceration. Fariss timely filed a notice of appeal
and court-ordered Pa.R.A.P. 1925(b) concise statement of errors complained
of on appeal. He raises the following questions for our review:
1. Whether the sentencing court sentenced outside the sentencing
guidelines[,] making [Fariss’] sentence manifestly excessive and
unreasonable?
2. Whether the sentencing court abused its discretion when it
sentenced within the sentencing guidelines but the case involves
circumstances where the application of the guidelines would be
clearly unreasonable?
3. Whether the sentencing court erred, in regard to [t]erroristic
[t]hreats, when it did not merge the charge for sentencing
purposes, as agreed upon by the Commonwealth and [d]efense
[c]ounsel prior to sentencing?
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Appellant’s Brief, at 6.
Fariss’ first two claims implicate the discretionary aspects of his
sentence. We have previously stated that defendants are not entitled to
review of the discretionary aspects of their sentences as of right; instead, this
Court’s jurisdiction must be invoked by satisfying a four-part test:
We conduct a four-part analysis to determine: (1) whether
appellant has filed a timely notice of appeal, see Pa.R.A.P.
902 and 903; (2) whether the issue was properly preserved at
sentencing or in a motion to reconsider and modify
sentence, see Pa.R.Crim.P. 720; (3) whether appellant’s brief has
a fatal defect, Pa.R.A.P. 2119(f); and (4) whether there is a
substantial question that the sentence appealed from is not
appropriate under the Sentencing Code, 42 Pa.C.S.A. § 9781(b).
Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010) (quoting
Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super 2006)) (internal
brackets omitted).
In Commonwealth v. Kiesel, 854 A.2d 530 (Pa. Super. 2004), we
discussed the Rule 2119(f) requirements in greater detail:
Rule 2119(f) requires only a concise statement of the reasons
[a]ppellant believes entitle him to allowance of appeal. The
concise statement must specify where the sentence falls in
relation to the sentencing guidelines and what particular provision
of the code it violates. Additionally, the statement must specify
what fundamental norm the sentence violates and the manner in
which it violates that norm. If the statement meets these
requirements, we can decide whether a substantial question
exists.
Id. at 532 (internal citations and quotation marks omitted) (citing
Commonwealth v. Goggins, 748 A.2d 721, 727 (Pa. Super. 2000) (en
banc)).
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Here, in his Rule 2119(f) statement, Fariss first notes the four-part test
above, and then summarizes our Supreme Court’s holding in Commonwealth
v. Mouzon, 812 A.2d 617 (Pa. 2002): that an appellant does not, as a matter
of law, fail to raise a substantial question that his sentence was manifestly
excessive, merely because his sentence was imposed within the statutory
limits. See Appellant’s Brief, at 14-16; see also Mouzon, supra at 627 (if
appellant complies with all statutory and procedural requirements regarding
challenge to discretionary aspects of sentencing, and articulates substantial
question in Rule 2119(f) statement warranting appellate review, this Court
must review manner in which trial court exercised discretion). Fariss’ Rule
2119(f) statement then discusses the facts of his particular case:
In the instant case, [Fariss asserts] that this [] Court can decide
his case on the merits based on the holding in Mouzon. Similarly
to the appellant in Mouzon, [Fariss] has articulated reasons why
his sentence raises doubt that the trial court [] properly
consider[ed] the general [sentencing] guidelines. (R[.R.] at 482a-
486a). In [Fariss’] [c]oncise [s]tatement of [errors] [c]omplained
[of] on [a]ppeal[,] [Fariss] cited to specific [c]ounts where he
asserts the trial court erred or abused its discretion when ordering
his judgment of sentence. (See Appendix C). [Fariss] has
complied with all statutory and procedural requirements regarding
a challenge to the discretionary aspects of his sentence and
therefore this Court should proceed to his claim on the merits
outlined below.
Appellant’s Brief, at 16-17.
Here, Fariss’ citation to the record is to his motion for reconsideration of
sentence, filed on May 13, 2019, and his citation to “Appendix C” is to his Rule
1925(b) concise statement of errors complained of on appeal. Fariss’ Rule
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2119(f) statement does not “specify where his sentence falls in relation to the
sentencing guidelines” and fails to specify “the particular provision of the code”
his sentence violates. See Kiesel, supra. Similarly, Fariss’ Rule 2119(f)
statement fails to “specify what fundamental norm [his] sentence violates and
the manner in which it violates that norm.” Id. Thus, we conclude that Fariss’
Rule 2119(f) statement is insufficient; therefore, we cannot review whether it
raises a substantial question. See id.; see also Goggins, supra at 727(“when a Rule 2119(f) statement ‘contains incantations of statutory provisions
and pronouncements of conclusions of law[,]’ it is inadequate.”).
Also, we have previously stated:
[t]he Rules of Appellate Procedure require that appellants
adequately develop each issue raised with discussion of pertinent
facts and pertinent authority. See Pa.R.A.P. 2119. It is not this
Court’s responsibility to comb through the record seeking the
factual underpinnings of an appellant’s claim. Further, this Court
will not become counsel for an appellant and develop arguments
on an appellant’s behalf.
Commonwealth v. Samuel, 102 A.3d 1001, 1005 (Pa. Super. 2014)
(internal citations omitted). In addition, we previously cautioned appellants
that Rule 2119(f) requires more than a simple citation to Mouzon. See
Commonwealth v. Dodge, 77 A.3d 1263, 1271 (Pa. Super. 2013) (“[w]e
caution defendants that a simple citation to Mouzon, Dodge II, or another
case may not be sufficient where the facts of the case do not warrant the
conclusion that there is a plausible argument that the sentence is prima facie
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excessive based on the criminal conduct involved.”).3 Based on the foregoing,
we conclude that Fariss’ Rule 2119(f) statement is insufficient, and therefore,
we will not address the merits of his discretionary aspects of sentencing
claims. See Moury, supra.
In his final claim, Fariss argues that his conviction for terroristic threats
should have merged for sentencing purposes. “A claim that crimes should
have merged for sentencing purposes raises a challenge to the legality of the
sentence. Therefore, our standard of review is de novo and our scope of
review is plenary.” Commonwealth v. Quintua, 56 A.3d 399, 400 (Pa.
Super. 2012) (internal citation omitted).
To support his argument, Fariss cites to Commonwealth v. Martinez,
153 A.3d 1025 (Pa. Super. 2016), and asserts that his situation is analogous
to that case. In Martinez, our Court held that the defendant’s terroristic
threats and robbery convictions merged because “both offenses arose from
the same act” and the relevant charging instruments “did not allege criminal
____________________________________________
3 We conclude that Farris fails to raises a plausible argument that his sentence
is prima facie excessive based on his criminal conduct. Fariss’ sentence of
twenty to fifty years’ incarceration—in light of the disturbing nature and
circumstances of the attempted murder, aggravated assault, strangulation,
kidnapping, and other crimes he committed—is not prima facie excessive.
See Commonwealth v. Mastromarino, 2 A.3d 581, 589 (Pa. Super. 2010)
(“[s]entencing is a matter vested in the sound discretion of the sentencing
judge, and a sentence will not be disturbed on appeal absent a manifest abuse
of discretion. In this context, an abuse of discretion is not shown merely by
an error in judgment. Rather, the appellant must establish, by reference to
the record, that the sentencing court ignored or misapplied the law, exercised
its judgment for reasons of partiality, prejudice, bias or ill will, or arrived at a
manifestly unreasonable decision.”).
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acts that constituted terroristic threats as distinct or delineated from the
conduct that constituted robbery.” Id. at 1033.
The court in Martinez explained the issue of merger as follows:
Whether the[] offenses merge turns on [s]ection 9765 of our
Sentencing Code, which provides:
§ 9765. Merger of sentences[.]
No crimes shall merge for sentencing purposes unless the
crimes arise from a single criminal act and all of the
statutory elements of one offense are included in the
statutory elements of the other offense. Where crimes
merge for sentencing purposes, the court may sentence the
defendant only on the higher graded offense.
42 Pa.C.S.A. § 9765.
The statute’s mandate is clear. It prohibits merger unless two
distinct facts are present: (1) the crimes arise from a single
criminal act; and (2) all of the statutory elements of one of the
offenses are included in the statutory elements of the other.
When considering whether there is a single criminal act or multiple
criminal acts, the question is not whether there was a break in the
chain of criminal activity. The issue is whether the actor commits
multiple criminal acts beyond that which is necessary to establish
the bare elements of the additional crime[; if so,] then the actor
will be guilty of multiple crimes which do not merge for sentencing
purposes.
In determining whether two or more convictions arose from a
single criminal act for purposes of sentencing, we must examine
the charging documents filed by the Commonwealth.
Id. at 1030-31 (emphasis added) (internal quotation marks and citations
omitted). The Martinez court elaborated that, when analyzing the charging
documents, “the requirements were satisfied where the criminal complaint
and information set forth generic charges . . . while the affidavit of probable
cause supplied the factual narrative.” Id. at 1031-1032.
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In Martinez, this Court held that merger was required, and we analyzed
the relevant charging documents as follows:
Applying pertinent authority to the present matter, it is apparent
from the criminal information, complaint, and affidavit of probable
cause that the Commonwealth did not allege criminal acts that
constituted terroristic threats as distinct or delineated from the
conduct that constituted robbery. Indeed, the information offers
only a generic recitation of the offenses and the statutory
elements of each, while the factual accounts in both the complaint
and the affidavit of probable cause describe Appellant’s
“approach” of the complainant and robbery by gunpoint in the
next moment as a seamless event occurring in the course of a
theft.
Id. at 1032.
Conversely, in Commonwealth v. Melvin, 548 A.2d 275 (Pa. Super.
1988), we held that the appellant’s terroristic threats and robbery charges did
not merge for sentencing purposes. In Melvin, we stated:
[I]f a defendant commits several [discrete] criminal acts, he may
be punished separately for them regardless of their close
relationship in a single criminal episode as long as each act is a
separate injury in itself. Here, the terroristic threat at issue was
made by Melvin, in an attempt to aid his escape, after the robbery
was completed. Although the terroristic threat and the robbery
occurred during the same episode, each act was a separate and
distinct injury to the Commonwealth.
Id. at 280-81 (emphasis in original; internal citation omitted).
Here, the Commonwealth’s information charged Fariss with robbery at
counts 2, 3, and 10. The sentencing court, at count 2, sentenced Farris to
four to ten years’ incarceration, with no further penalty imposed at counts 3
and 10. For Fariss’ terroristic threats conviction, the court sentenced him to
one to five years’ incarceration, to run consecutively to counts 2 and 4 and
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concurrently with count 13.4 Specifically, Fariss was sentenced on count 2 for
his conviction for the following robbery offense:
§ 3701. Robbery.
(a) Offense defined.
(1) A person is guilty of robbery if, in the course of committing a
theft, he:
...
(ii) threatens another with or intentionally puts him in fear
of immediate serious bodily injury[.]
18 Pa.C.S.A. § 3701(a)(1)(ii). Fariss was also charged with and pled guilty
but mentally ill to one count of terroristic threats, defined in the Crimes Code
as follows:
§ 2706. Terroristic Threats.
(a) Offense defined. — A person commits the crime of
terroristic threats if the person communicates, either directly or
indirectly, a threat to:
(1) commit any crime of violence with intent to terrorize
another[.]
18 Pa.C.S.A. § 2706(a)(1).
Here, the factual account in the Commonwealth’s affidavit of probable
cause, contained within the Chester County Juvenile Court allegation, states:
On Wednesday, February 22, 2017, Khemmathat [Fariss]
assaulted and robbed a [seventy-two-year-old] female victim at
the victim’s home, located [] in East Brandywine Township,
____________________________________________
4 Fariss would still be subject to twenty to fifty years’ incarceration without
any sentence on terroristic threats because Fariss’ terroristic threats sentence
runs concurrently with count 13, which has a longer minimum sentence and
an equivalent maximum sentence.
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Chester County, PA. . . . Among other evidence, the police
located video of [Fariss] using the victim’s credit card and the
victim’s car after the assault, and found the victim’s phone with
his other belongings after he returned to Devereux.
...
On Sunday, [February 26, 2017], [East Brandywine Township
Police Department] was dispatched for a home invasion robbery
[in] East Brandywine Township, Chester County. This address is
the residence of the [seventy-two-year-old] female victim who
resides alone.
...
The victim was found bound in a small unlit storage area on the
ground floor next to the entry door. . . . The victim’s head was
covered by a reusable shopping bag attached with duct tape
around her neck; her arms secured behind her back with zip ties,
duct tape and a heavy cloth; and her knees and ankles bound with
duct tape. The victim was still alive.
...
The victim was observed to exhibit heavy bruising under her eyes
and a significant amount of dried blood on her nose and mouth
area, even after cleaning by medical personnel. Also observed
was bruising, discoloration, blistering and avulsion on her wrists.
The victim’s right wrist had a distinct patterned ligature mark.
Medical personnel reported the victim was suffering from severe
dehydration, malnutrition and trauma consistent with being bound
and remaining in one position for several days.
The victim related that on Wednesday[, February 22, 2017] she
left her home from approximately [9 to 11 a.m.] On returning
home she discovered someone had entered her residence, which
she never locks, and had removed credit cards from within. She
then left for work. She again returned home at approximately
[7:30 p.m.] and, upon entering, was grabbed by someone waiting
inside the house. The victim stated the bruising resulted possibly
from being struck, but also from being violently throw[n] around
in the confined space of the doorway. The actor began to strangle
her with his right arm across her windpipe[,] at which point she
was choked until she lost consciousness. She stated she did
partially regain consciousness and recalled the subject restraining
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her. The victim remained in the closet for five [] days until
discovered by her daughter-in-law.
The victim described her attacker as a male, dressed in all black
including gloves and a ski mask. . . . He only spoke once, telling
her, “You’ll be with Jesus soon.”
...
Also on [February 28, 2017] affiant Martin learned that the
victim’s Target Red card [] was used on [February 22, 2017,] at
the 7-11 store located [] in Baltimore[,] Maryland[,] for a
purchase totaling $12.90. Video surveillance shows [Fariss]
entering the store[.] Video surveillance on the exterior of the
business shows the suspect emerge from the victim’s stolen Fiat
500.
Affidavit of Probable Cause, 8/2/17, at 2-4 (emphasis added).
Here, as the factual account in the Commonwealth’s affidavit of
probable cause reveals, Fariss’ terroristic threats and robbery convictions
amounted to “[discrete] criminal acts.” See Melvin, supra. When Fariss told
C.K. that, “You’ll be with Jesus soon,” prior to forcing and locking her in a
small closet, he completed the crime of terroristic threats. See 18 Pa.C.S.A.
§ 2706(a)(1). Fariss independently completed the elements of his count 2
robbery conviction when he intentionally put C.K. in fear of immediate serious
bodily injury by strangling her, by violently throwing her within the confined
space of the doorway, and by securing a reusable bag around her neck with
duct tape. These violent acts, performed by Fariss in the course of committing
the thefts of C.K.’s iPhone and Target credit card, are sufficient to sustain
Fariss’ robbery conviction. See 18 Pa.C.S.A. § 3701(a)(1)(ii). Consequently,
because Fariss committed “multiple criminal acts beyond that which is
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necessary to establish the bare elements of the additional crime” he is guilty
of multiple crimes, and his merger claim fails. See Martinez, supra.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/25/20
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