Com. v. Fariss, K.

• Court: Superior Court of Pennsylvania
• Decided: June 24, 2020
• Docket: 2046 EDA 2019
• Status: Unpublished

Opinion

J-A13020-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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 JUNE 24, 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. J-A13020-20

The trial court relied on the Commonwealth’s recitation of the facts and

circumstances, as set forth at the sentencing hearing:

[Commonwealth Attorney]: [On February 22, 2018,] prior to [] 11:00 a.m.[, Fariss], age 17, entered the victim’s home [in] East Brandywine Township, Chester County, Pennsylvania and stole some money and her credit cards.

The victim[,] C[.]K[.], who was 72 [years old] at the time and lived alone in a small cottage in East Brandywine, 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 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 We note that 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; rhabdomyolysis, which is a condition which results from dying muscle fibers releasing contents into the bloodstream—and that can be caused by prolonged immobilization—and a urinary tract infection. [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[, 2018,] which is 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, 2018,] 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’] and that that fingerprint was in [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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Initially, on March 2, 2017, the Commonwealth filed a juvenile petition

charging Fariss with the above-listed charges. On March 5, 2017, the

Commonwealth filed a petition seeking to transfer the matter to the Court of

Common Pleas and have Fariss tried as an adult. Following two hearings on

the transfer petition, the court entered an order granting the Commonwealth’s

requested transfer. On January 31, 2019, Fariss entered an open plea of

guilty but mentally ill to the charges against him. On February 5, 2019, the

court conducted a hearing to determine whether Fariss was mentally ill.

Fariss’ open plea of guilty but mentally ill was accepted 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 was granted,

and the court reduced Fariss’ sentence to an aggregate term of twenty to fifty

years’ incarceration. On July 8, 2019, Fariss filed a timely notice of appeal.

On appeal, Fariss presents 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?

Appellant’s Brief, at 6.

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Fariss’ first two claims on appeal implicate the discretionary aspects of

his sentence. We have previously stated that defendants are not entitled to

review of the discretionary aspects of sentence 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) requirement in greater detail:

[W]hen the appellant has not included a Rule 2119(f) statement and the appellee has not objected, this Court may ignore the omission and determine if there is a substantial question that the sentence imposed was not appropriate, or enforce the requirements of Pa.[]R.A.P. 2119(f) sua sponte, i.e., deny allowance of appeal. However, this option is lost if the appellee objects to a 2119(f) omission. In such circumstances, this Court is precluded from reviewing the merits of the claim and the appeal must be denied.

Kiesel, 854 A.2d at 533 (internal citations omitted); see also,

Commonwealth v. Gambal, 561 A.2d 710, 713 (Pa. 1989).

Here, Fariss failed to include a Rule 2119(f) statement in his brief.

Additionally, the Commonwealth has objected to Farris’ omission. See

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Appellee’s Brief, at 10. Thus, this Court is precluded from reviewing the merits

of Fariss’ two discretionary sentencing claims. See Kiesel, 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 (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 case is analogous to

the facts of Martinez, where 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

acts that constituted terroristic threats as distinct or delineated from the

conduct that constituted robbery.” Martinez, 153 A.3d 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.

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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, 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.

Martinez, 153 A.3d 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.

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.

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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

concurrently with count 13.3 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:

3 Fariss would still be subject to twenty to fifty years’ incarceration without the 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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...

(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 72 year old female victim at the victim’s home, located [] in East Brandywine Township, 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, 02/26/2017 at 0958 hours, [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 72[-]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,

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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 02/22/2017 she left her home from approximately 0900 to 1100 hours. 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 1930 hours 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 her. The victim remained in the closet for five (5) 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 02/28/2017 affiant Martin learned that the victim’s Target Red card [] was used on 02/22/2017 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).

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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

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: 6/24/2020

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