Com. v. Feli, S.

• Court: Superior Court of Pennsylvania
• Decided: September 24, 2015
• Docket: 1672 WDA 2013
• Status: Unpublished

Opinion

J-A23001-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : SHERRYL FELI, : : Appellant : No. 1672 WDA 2013

Appeal from the Judgment of Sentence entered on May 23, 2013 in the Court of Common Pleas of Allegheny County, Criminal Division, No. CP-02-CR-0009920-2012

BEFORE: GANTMAN, P.J., LAZARUS and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.: FILED SEPTEMBER 24, 2015

Sherryl Feli (“Feli”) appeals from the judgment of sentence imposed

after she was convicted of three counts of aggravated assault and one count

of criminal conspiracy.1 We affirm.

In its Pa.R.A.P. 1925(a) Opinion, the trial court thoroughly set forth

the facts underlying this appeal, which arises out of an assault on John

Hrabolowski (“Hrabolowski”) and John Szwaczkowski (“Szwaczkowski”),

perpetrated by Feli and her co-defendant, William Hughes (“Hughes”). See

Trial Court Opinion, 10/21/14, at 4-8. We adopt the trial court’s recitation

herein by reference. See id.

Following the assault, the Commonwealth charged Feli with one count

each of criminal conspiracy and aggravated assault – serious bodily injury

(hereinafter “aggravated assault – SBI”), and two counts of aggravated

1 See 18 Pa.C.S.A. §§ 2702(a)(1), (4); 903. J-A23001-15

assault – deadly weapon used (hereinafter “aggravated assault – DW”),

pertaining to her assaults upon Hrabolowski and Szwaczkowski, respectively.

The matter proceeded to a non-jury trial, after which the trial court

found Feli guilty on all counts. On May 23, 2013, the trial court imposed an

aggregate sentence of two to four years in prison, followed by seven years

of probation. Feli filed post-sentence Motions, which the trial court denied

after a hearing. Feli thereafter timely filed a Notice of Appeal,2 and a

Pa.R.A.P. 1925(b) Concise Statement of Errors Complained of on Appeal.

On appeal, Feli presents the following issues for our review:

I. Was the evidence sufficient to support [] Feli’s convictions for aggravated assault [– SBI] and conspiracy to commit aggravated assault [– SBI] against [] Hrabolowski?

II. Was the evidence sufficient to support [] Feli’s conviction for aggravated assault [– DW] against [] Hrabolowski?

III. Was the evidence sufficient to support [] Feli’s conviction for aggravated assault [– DW] against [] Szwaczkowski?

Brief for Appellant at 5 (capitalization omitted).

We apply the following standard of review when considering a

challenge to the sufficiency of the evidence:

The standard we apply … is whether[,] viewing all the 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 crime beyond a reasonable doubt. In applying the above test, we may not weigh the evidence and substitute our judgment for [that of] the fact-finder. In addition, we note that the facts and circumstances established by the

2 Hughes also filed a direct appeal, docketed before this panel at 1779 WDA 2013.

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Commonwealth need not preclude every possibility of innocence. Any doubts regarding a defendant’s guilt may be resolved by the fact-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 finder of fact[,] while passing upon the credibility of witnesses and the weight of the evidence produced, is free to believe all, part or none of the evidence.

Commonwealth v. Melvin, 103 A.3d 1, 39-40 (Pa. Super. 2014) (citation

omitted).

In her first issue, Feli challenges the sufficiency of the evidence

supporting her convictions of (1) aggravated assault – SBI; and (2)

conspiracy to commit aggravated assault – SBI. See Brief for Appellant at

16-29. We will address Feli’s claims separately.

In challenging her conviction of aggravated assault – SBI, Feli argues

that the evidence failed to establish that she had inflicted, or attempted to

inflict, “serious bodily injury” upon Hrabolowski, a requisite element of the

offense. Id. at 16.

The Crimes Code provides that a person is guilty of aggravated assault

– SBI if she “attempts to cause serious bodily injury[3] 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.A.

3 “Serious bodily injury” is defined as “bodily injury which creates a substantial risk of death or which causes serious, permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.” 18 Pa.C.S.A. § 2301.

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§ 2702(a)(1) (footnote added). “Aggravated assault [– SBI] does not

require proof that serious bodily injury was inflicted but only that an attempt

was made to cause such injury. Where the victim does not sustain serious

bodily injury, the Commonwealth must prove that the appellant acted with

specific intent to cause serious bodily injury.” Commonwealth v. Lewis,

911 A.2d 558, 564 (Pa. Super. 2006) (citations omitted); see also 18

Pa.C.S.A. § 901(a) (providing that “[a] person commits an attempt when,

with intent to commit a specific crime, [s]he does any act which constitutes

a substantial step toward the commission of that crime.”).

“A person acts intentionally with respect to a material element of an offense when … it is [her] conscious object to engage in conduct of that nature or to cause such a result ….” 18 Pa.C.S. § 302(b)(1)(i). As intent is a subjective frame of mind, it is of necessity difficult of direct proof. The intent to cause serious bodily injury may be proven by direct or circumstantial evidence.

Commonwealth v. Matthew, 909 A.2d 1254, 1257 (Pa. 2006) (citations to

case law and internal quotation marks omitted). “[A] determination of

whether an appellant acted with intent to cause serious bodily injury must

be determined on a case-by-case basis.” Commonwealth v. Dailey, 828

A.2d 356, 360 (Pa. Super. 2003); see also id. (observing that “depending

on the other circumstances, even a single punch may be sufficient.”).

In the instant case, it is undisputed that Hrabolowski did not actually

suffer serious bodily injury under the statutory definition of this term.

Accordingly, the relevant inquiry is whether Feli attempted and intended to

inflict serious bodily injury upon Hrabolowski.

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Feli argues that the Commonwealth failed to present sufficient

evidence that she intended to inflict serious bodily injury, emphasizing that

she struck Hrabolowski only on the forearms with her metal bike lock, which

caused minor bruising that did not require medical attention. See Brief for

Appellant at 18-24. Feli points out that this Court has stated that, in

inferring intent to commit serious bodily injury from circumstantial evidence,

“[g]enerally speaking, one is presumed to intend the normal consequences

of one’s actions.” Id. at 18 (quoting Commonwealth v. Robinson, 817

A.2d 1153, 1159 (Pa. Super. 2003)). According to Feli, in the instant case,

“[c]ommon sense dictates that the normal consequence of striking someone

on the forearms with a bike lock would be the kind of minor bruising that

occurred here, not ‘serious bodily injury’ or death.” Brief for Appellant at 19.

Feli maintains that the decision in Robinson is analogous to this case, and

requires that her conviction be reversed. Id.

In Robinson, the defendant and two accomplices robbed a woman of

her backpack, at gunpoint, outside of a bank. Robinson, 817 A.2d at 1157.

One of the accomplices struck the woman in the back with the butt of his

handgun, which did not cause her serious bodily injury. Id. at 1157, 1159.

This Court held that the evidence was insufficient to sustain the defendant’s

conviction of aggravated assault – SBI, stating that “the circumstances of

the assault do not support the inference that the assailant intended to inflict

greater injury than that actually inflicted.” Id. at 1159.

In the instant case, Feli, relying on Robinson, asserts that

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the “only reasonable inference” to be drawn here is that the blows [] Feli allegedly delivered were, like the blow in Robinson, intended “to inflict the same degree of injury as was actually inflicted.” Robinson, 817 A.2d at 1160. “Thus, the conclusion of the factfinder, that the intent behind the blow was to injure much more severely than that actually inflicted, is nothing more than sheer speculation.” Id. at 1160-61.

Brief for Appellant at 21.

In its Opinion, the trial court addressed Feli’s claims and concluded

that the evidence was sufficient to establish that she attempted and

intended to inflict serious bodily injury upon Hrabolowski. See Trial Court

Opinion, 10/21/14, at 18-20. The trial court’s analysis is supported by the

record and the law, and we affirm on this basis concerning Feli’s challenge to

her conviction of aggravated assault – SBI. See id.

As an addendum, we observe that Feli’s reliance on Robinson, supra,

is misplaced, as it is factually distinguishable. Unlike the assailant in

Robinson, Feli personally delivered the blows with the metal bike lock to

Hrabolowski’s forearms, after having seen her paramour, Hughes, cause

serious bodily injury to Szwaczkowski, see infra, with a nearly identical bike

lock. Moreover, the Court in Robinson emphasized that the intent of the

co-conspirators in that case was to

rob[] [the victim], plain and simple. The clear intent of the robbers was to take [the victim’s] backpack, not to inflict serious bodily injury. To accomplish this, the assailant found it necessary to strike [the victim] in the back. Indeed, there is no indication the blow was delivered for any purpose other than to assist in separating the backpack from [the victim’s] clutches.

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Robinson, 817 A.2d at 1161. In the instant case, although Feli had the

opportunity to avoid the fray initiated by Hughes, she instead actively

participated in the assault, which apparently did not have any criminal

objective aside from the assault itself. Additionally, Feli repeatedly struck

Hrabolowski on his forearms with her bike lock while he was attempting to

protect Szwaczkowski from further injury,4 unlike the assailant in Robinson,

who inflicted only one blow.

Feli additionally contends that “the evidence was insufficient to

establish that [she] conspired to commit aggravated assault [– SBI] against

[Hrabolowski] for two reasons: (1) [] Feli did not possess the requisite intent

to commit aggravated assault against [Hrabolowski]; and (2) there was no

evidence of an agreement between [] Hughes and [] Feli to assault

[Hrabolowski].” Brief for Appellant at 24.

“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) and overt act was done in furtherance of the

conspiracy.” Commonwealth v. Hennigan, 753 A.2d 245, 253 (Pa. Super.

2000) (citation omitted); see also 18 Pa.C.S.A. § 903(a).

The essence of a criminal conspiracy is a common understanding, no matter how it came into being, that a particular criminal objective be accomplished. Therefore, a

4 Moreover, after Feli ceased striking Hrabolowski on his forearms, she proceeded to strike Szwaczkowski multiple times with her bike lock on his head and back.

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conviction for conspiracy requires proof of the existence of a shared criminal intent. An explicit or formal agreement to commit crimes can seldom, if ever, be proved and it need not be, for proof of a criminal partnership is almost invariably extracted from the circumstances that attend its activities. Thus, a conspiracy may be inferred where it is demonstrated that the relation, conduct, or circumstances of the parties, and the overt acts of the co-conspirators[,] sufficiently prove the formation of a criminal confederation. The conduct of the parties and the circumstances surrounding their conduct may create a web of evidence linking the accused to the alleged conspiracy beyond a reasonable doubt. Even if the conspirator did not act as a principal in committing the underlying crime, he is still criminally liable for the actions of his co-conspirators in furtherance of the conspiracy.

Commonwealth v. Knox, 50 A.3d 749, 755 (Pa. Super. 2012) (citation

omitted). Stated differently, an “agreement to commit an unlawful act …

may be proved inferentially by circumstantial evidence, i.e., the relations,

conduct or circumstances of the parties or overt acts on the part of the co-

conspirators.” Commonwealth v. Thomas, 65 A.3d 939, 943 (Pa. Super.

2013) (citation omitted).

As discussed above, the evidence was sufficient to sustain the trial

court’s finding that Feli possessed the requisite intent to commit aggravated

assault – SBI on Hrabolowski. Accordingly, we limit our discussion to

whether the evidence established an agreement between Feli and Hughes to

assault Hrabolowski. See Hennigan, supra.

Feli argues that “[t]he ‘mere association’ between [] Feli and []

Hughes is insufficient to establish a ‘common understanding’” between them

to assault Hrabolowski. Brief for Appellant at 26 (citing Commonwealth v.

Davenport, 452 A.2d 1058, 1061 (Pa. Super. 1982) (stating that

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“[r]egardless of the type of proof advanced by the Commonwealth, [] proof

of a common understanding among the alleged co-conspirators is an

indispensable element of the crime.”) (citation omitted)); see also Brief for

Appellant at 27 (asserting that there was no evidence of “any actual

agreement or plan between [] Feli and [] Hughes[.]”) (emphasis in original,

quotation marks omitted). According to Feli, “[t]he Commonwealth’s

evidence established only ‘that a brawl occurred in which [the defendants]

were participants. This, however, does not in itself demonstrate the

existence of a conspiracy.’” Id. at 28 (brackets in original) (quoting

Commonwealth v. Kennedy, 453 A.2d 927, 930 (Pa. 1982)); see also

Brief for Appellant at 28 (wherein Feli argues that her conspiracy conviction

cannot stand based upon Kennedy).

The trial court addressed Feli’s challenge to her conspiracy conviction

in its Opinion, concluding that the circumstantial evidence was sufficient to

establish a criminal understanding between Feli and Hughes. See Trial

Court Opinion, 10/21/14, at 11-13. We agree with the trial court’s

conclusion and analysis, which is supported by the record, and affirm on this

basis with regard to Feli’s challenge to her conspiracy conviction.

As an addendum, we find Kennedy to be factually distinguishable

from the instant case, and unavailing to Feli. In Kennedy, the defendant

and his friend had a verbal argument with the victim, “and [] this argument

immediately escalated into a violent confrontation in which defendant and

[his friend] inflicted beatings upon [the victim.]” Kennedy, 453 A.2d at

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930. The defendant was convicted of, inter alia, criminal conspiracy. Id. at

929-30. On appeal, the defendant raised a sufficiency challenge to his

conspiracy conviction, asserting that there was no evidence of an agreement

between the defendant and his friend to assault the victim. Id. at 929. This

Court agreed, holding as follows:

[T]he Commonwealth’s evidence clearly established that a brawl occurred in which defendant and [his friend] were participants. This, however, does not in itself demonstrate the existence of a conspiracy. … [T]he evidence in the light most favorable to the Commonwealth reveals[] a mere association between defendant and [his friend] …, along with their simultaneous participation in the assault upon [the victim]. Nothing in the relation, conduct, or circumstances of the parties, however, is indicative of there having been an agreement, explicit or implicit, as to commission of the assault. … These events [were] perfectly consistent with the presumption that defendant and [his friend] acted independently and spontaneously[.]

Id. at 930 (emphasis in original).

Unlike in Kennedy, the evidence in the instant case, viewed in the

light most favorable to the Commonwealth, showed more than a “mere

association” between Feli and Hughes. Feli, Hughes’s paramour, knew that

Hughes had smashed the side view mirror of Hrabolowski’s vehicle during

the initial encounter with Hrabolowski. She subsequently willingly joined in

the assault initiated by Hughes upon encountering the victims the second

time. Therefore, unlike in Kennedy, the assault in this case did not

“immediately escalate[] into a violent confrontation” following an argument,

and Feli and Hughes did not act “independently and spontaneously.”

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Next, we will address Feli’s remaining two issues together, as they are

related. In these issues, Feli asserts that there was insufficient evidence

presented at trial to sustain her two convictions of aggravated assault – DW,

concerning her attacks on Szwaczkowski and Hrabolowski, respectively. See

Brief for Appellant at 35-41.

The Crimes Code provides that a person is guilty of aggravated assault

– DW if she “attempts to cause or intentionally or knowingly causes bodily

injury[5] to another with a deadly weapon[.]” 18 Pa.C.S.A. § 2702(a)(4)

(footnote added). A “deadly weapon” is defined as “[a]ny firearm, whether

loaded or unloaded, or any device designed as a weapon and capable of

producing death or serious bodily injury, or any other device or

instrumentality which, in the manner in which it is used or intended to be

used, is calculated or likely to produce death or serious bodily injury.” 18

Pa.C.S.A. § 2301 (emphasis added). In discussing what constitutes a deadly

weapon for purposes of application of the deadly weapon enhancement for

sentencing purposes, this Court observed as follows:

“[I]tems not normally classified as deadly weapons can become so based upon their use under particular circumstances.” Commonwealth v. Rhoades, 2010 PA Super 204, 8 A.3d 912, 917 (Pa. Super. 2010) (intact glass bottle qualified as a deadly weapon). We found many examples in our cases: ... Commonwealth v. Scullin, 414 Pa. Super. 442, 607 A.2d 750 (Pa. Super. 1992) (tire iron thrown at victim was a deadly weapon); Commonwealth v. Cornish, 403 Pa. Super. 492, 589 A.2d 718, 721 (Pa. Super. 1991) (fireplace poker used to strike victim constitutes a deadly weapon); Commonwealth v.

5 Bodily injury is defined as “[i]mpairment of physical condition or substantial pain.” 18 Pa.C.S.A. § 2301.

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Brown, 402 Pa. Super. 369, 587 A.2d 6, 7 (Pa. Super. 1991) (saw used to stab victim was a deadly weapon); Commonwealth v. Chapman, 365 Pa. Super. 10, 528 A.2d 990 (Pa. Super. 1987) (straightedge razor placed at the face of an individual is a deadly weapon).

Commonwealth v. Buterbaugh, 91 A.3d 1247, 1268 (Pa. Super. 2014)

(en banc).6

Feli challenges her conviction of aggravated assault – DW (concerning

Hrabolowski), asserting that the trial court erred in determining that the

metal bike lock that she used in the assaults met the statutory definition of a

“deadly weapon.” Brief for Appellant at 30-31 (quoting 18 Pa.C.S.A.

§ 2702(a)(4), and arguing that “Feli [did not use] her bike lock in a manner

which was ‘calculated or likely to produce death or serious bodily injury.’”).7

Additionally, Feli asserts that the evidence was insufficient to sustain her

conviction based upon a conspiracy theory of liability. See Brief for

Appellant at 33-34. Feli relies upon the decision in Kennedy, supra,

asserting that there was no evidence that she had entered into an

agreement with Hughes to assault Hrabolowski. Brief for Appellant at 33

(quoting Kennedy, 453 A.2d at 930, and arguing that “it is not enough for

the Commonwealth to simply demonstrate that [] Feli came to [] Hughes’[s]

aid in the course of a fight, because ‘persons do not commit the offense of

6 In Buterbaugh, the Court noted that “[t]he Crimes Code provides an almost verbatim definition of deadly weapon as the one set forth in the Sentencing Guidelines[.]” Buterbaugh, 91 A.3d at 1268. 7 In support of this claim, Feli essentially restates her arguments advanced in connection with her first issue, discussed supra. Brief for Appellant at 31- 32.

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conspiracy when they join into an affray spontaneously, rather than

pursuant a common plan, agreement, or understanding.’”).

Regarding her aggravated assault – DW conviction pertaining to

Szwaczkowski, Feli argues, in relevant part, as follows:

At trial, not a single witness testified to seeing [] Feli strike [Szwaczkowski] with a bike lock. [Hrabolowski] – the victim in the best position to observe the fight – testified definitively that he did not see [] Feli strike [Szwaczkowski] at any point. [] Feli’s conviction on this count was based entirely on [Szwaczkowski’s] testimony that, while he was being attacked by [] Hughes, he thought that he felt “steel” hit him from behind, and assumed it was [] Feli striking him with her bike lock. However, [Szwaczkowski] acknowledged that he never saw [] Feli strike him. … [T]he allegation that [] Feli struck [Szwaczkowski] during this fight was premised entirely on conjecture.

Brief for Appellant at 35-36 (emphasis in original, citations to record and

paragraph break omitted); see also id. at 35 (citing Commonwealth v.

Garrett, 222 A.2d 902, 905 (Pa. 1966) (stating that “evidence to convict an

accused of a crime must be something more than evidence that merely

raises a suspicion of guilt. The inference of guilt must be based on facts and

conditions proved; mere conjecture or surmise is not sufficient.”) (emphasis

supplied by Feli)). Finally, as in Feli’s above-discussed challenge to her

conviction of aggravated assault – DW (concerning Hrabolowski) based on a

conspiracy theory of liability, she raises the same claim in connection with

her conviction as to Szwaczkowski. See Brief for Appellant at 37-41.

In its Opinion, the trial court addressed Feli’s claims and the applicable

law, concluding that the evidence was sufficient to sustain both of Feli’s

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convictions of aggravated assault – DW. See Trial Court Opinion, 10/21/14,

at 14-18; see also Buterbaugh, supra (collecting cases ruling that objects

not normally classified as deadly weapons became so based upon their use

under particular circumstances). We agree and affirm based upon the trial

court’s Opinion with regard to Feli’s claims. See Trial Court Opinion,

10/21/14, at 14-18.

Because we conclude that the evidence was sufficient to convict Feli

beyond a reasonable doubt of all of the charges against her, we affirm her

judgment of sentence.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 9/24/2015

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IN THE COURT OF COMMON PLEAS FIFTH JUDICIAL DISTRICT ALLEGHENY COUNTY, PENNSYLVANIA

COMMONWEALTH OF PENNSYLVANIA, CRIMINAL DIVISION

v.

WILLIAM HUGHES, CC No. 201209919

Defendant .. :, .

COMMONWEALTH OF PENNSYLVANIA,

v. SHERRYL FELI,

Defendant. OPINION OF THE COURT

Honorable Beth A. Lazzara Allegheny County Courthouse 436 Grant Street Pittsburgh, PA 15219

Counsel of Record:

For the Defendants:

A. Kayleigh Shebs, Esq. Counsel for William Hughes

Daniel J. Eichinger, Esquire Counsel for Sherryl Feli

· For the Commonwealth: Vd.AtNnO:) AN3rl;;)tl1W ,,t_(o1s11110 1wr1rm:10 · Office of the District Attorney so~f)o.3tlJhlnoJ AD ~n31 of Allegheny County 400 Allegheny County Courthouse Pittsburgh, PA 15219

1 0 ', .. ' -. {..·. .' :- r·, Circulated 08/31/2015 02:46 PM

IN THE COURT OF COMMON PLEAS FIFTH JUDICIAL DISTRICT ALLEGHENY COUNTY, PENNSYLVANIA

v. WILLIAM HUGHES, CC No. 201209919

Defendant.

v. SHERRYL FELI, CC No. 201209920

OPINION OF THE COURT

This matter involves two defendants, William Hughes and Sherryl

Feli. Both Defendants were charged with three (3) counts of

aggravated assault and one (1) count of criminal conspiracy. William

Hughes was also charged with criminal mischief. Count 1 at each

information charged aggravated assault pursuant to 18 Pa. C.S.A.

§2702(a)(l), alleging the infliction of serious bodily injury, or an

attempt to do so, on victim John Hrabolowski. The second and third

counts in each information charged aggravated assault pursuant to 18

Pa. C.S.A. §2702(a)(4), alleging that the Defendants caused bodily

injury to the victims, John Hrabolowski (Count 2) and John

2 0 Circulated 08/31/2015 02:46 PM ,, ~ '. .

Szwaczkowski (Count 3), with a deadly weapon. The criminal

conspiracy count alleged that the Defendants agreed that they would

commit the crime of assault on the victims.1 Finally, Defendant

Hughes was charged with criminal mlschler', alleging that he

intentionally damaged the property of John Hrabolowski.

The Defendants waived their right to a jury trial and proceeded

non-jury before this court. On the day of trial, March 7, 2013, they

were adjudged guilty at all counts. The Defendant Sherryl Feli was

sentenced on May 23, 2013 to not less than twenty-four (24) months

nor more than forty-eight ( 48) months of imprisonment at count 1,

followed by a consecutive period of probation of seven (7) years, and

to no further penalty on the remaining counts. William Hughes was

sentenced on July 16, 2013 to not less than seven and one half (7 112)

years nor more than fifteen (15) years of imprisonment at count 1, to

five (5) years probation at count 2, to become effective upon his

parole from the sentence at count 1, and to a consecutive term of

eight (8) years probation at count 3. No further penalty was imposed

on the remaining counts. Both parties filed post-sentence motions

which were denied. Notices of Appeal were timely filed and, pursuant

1 18 Pa. C.S.A. § 901. 2 18 Pa. C.S.A.. § 3304.

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to this court's Order, Concise Statements of Errors Complained of on·

Appeal were filed by both Defendants.

Defendant Hughes challenged the weight and sufficiency of the

evidence as to Count 1, Count 2 and Count 4. Defendant Feli

challenged the sufficiency and weight of the evidence as to all counts.

Both also contended that the sentences imposed constituted an abuse

of discretion. Before turning to these claims, it is necessary to review

the evidence, taken in the light most favorable to the Commonwealth

as the verdict winner.

John Hrabolowski testified that on March 26, 2012, as he parked

his car outside the Lawrenceville post office, he was verbally

confronted by a man he later identified as Defendant Hughes. (N.T. 9-

11, 14-15). Hughes made a derogatory comment about Mr.

Hrabolowski's parking. (N.T. 15, 37). After Defendant Hughes made

his comment to Mr. Hrabolowski, Mr. Hrabolowski proceeded into the

post office. (N.T. 15-16). As he was in the post office, Mr. Hrabolowski

observed Defendant Hughes turn his bicycle around and head towards

his vehicle. (N.T. 17, 40). As Mr. Hrabolowski left the post office and

walked back towards his vehicle, he saw Defendant Hughes grab his

heavy steel, D-shaped bicycle lock, approach his vehicle and strike his

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driver side view mirror, breaking it. (N.T. 17-18, 39-40). Mr.

Hrabolowski asked Defendant Hughes why he broke his mirror. (N.T.

18). In response to the question, and as Mr. Hrabolowski approached

Hughes, Defendant Hughes got off his bike and began swinging the

lock at Mr. Hrabolowski, coming within two (2) to three (3) feet of

him, before leaving the area. (N.T. 18-19).

Mr. Hrabolowski immediately called the police and reported what

had happened. (N.T. 19-20, 41). Although he was told to wait for the

police to arrive, Mr. Hrabolowski decided to drive to his nearby

apartment to have his roommate accompany him when he spoke with

the police. (N.T. 20-21, 44-45). As he was heading home, Mr.

Hrabolowski was again confronted by Defendant Hughes, who got off

his bicycle and again approached Mr. Hrabolowski, waving his bicycle

lock at him. (N.T. 44-46).

Mr. Hrabolowski picked up his roommate, the second victim,

John Szwaczkowski, at their home and then headed back towards the

post office. (N.T. 22-23, 47-48). As he was driving towards the post

office, he saw the Defendants on their bicycles. (N.T. 24, 48). Mr.

Hrabolowski stopped his car, opened the car door, and had his leg out

to exit, while telling the Defendants that they needed to stay where

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they were because the police were on their way. (N.T. 23-26). As Mr.

Hrabolowski was telling the Defendants to remain until the police

arrived, Defendant Hughes began approaching him, again swinging the

bike lock. (N.T. 26, 98-101). As Defendant Hughes got closer to the

vehicle, Mr. Szwaczkowski, who had previously exited the car and had

been standing next to the open passenger door, came around the back

of the vehicle to tell Mr. Hrabolowski to remain in the vehicle. (N.T.

26-27, 70-71, 101). Before he moved to the driver's side of the

vehicle, Mr. Szwaczkowski saw that both Defendants had bike locks in

their hands, (N.T. 70, 98-101).

As Mr. Szwaczkowski was turned toward Mr. Hrabolowski to tell

him to remain in the car, Defendant Hughes struck Mr. Szwaczkowski

on the back of the head with the bike lock. (N.T. 28, 71-72, 102-103).

Mr. Szwaczkowski stumbled against the car and eventually fell to the

ground on the other side of the car. (N.T. 28, 72-73, 103-104). As

Defendant Hughes stood over him with his bike lock, appearing ready

to strike him again, Mr. Hrabolowski grabbed Defendant Hughes' bike

lock in an effort to prevent Defendant Hughes from striking his friend

again. (N.T. 28, 73). As he was holding onto the bike lock in

Defendant Hughes' hands, Defendant Feli began to strike him on his

arms, attempting to break Mr. Hrabolowski's grip on Defendant

..

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Hughes' bike lock. (N.T. 28-30). Mr. Hrabolowski testified that he

suffered bruising on his arms as a result of being struck by Defendant

Feli's bike lock. (N.T. 30-31).

Defendant Hughes, as he straddled his bicycle, struck Mr.

Szwaczkowski in his ribs repeatedly with his front tire. (N.T. 32, 73,

105-108). Defendant Feli also used her bike lock to strike Mr.

Szwaczkowski in the shoulder, neck and head as he lay on the ground.

(N.T. 74-75, 109, 117). As Mr. Szwaczkowski struggled to free

himself, he bit Defendant Hughes in the leg, after which the assault

abruptly stopped, and the Defendants fled the area on their bicycles.

(N.T. 32, 75-76, 108-109).

John Szwaczkowski was taken from the scene by medics to

Mercy Hospita I, where he was admitted for four ( 4) days, having

suffered a concussion, a laceration on his head that required four ( 4)

staples to close, five (5) broken ribs and other bruising. (N.T. 77-78).

Photographs of his injuries, taken while he was at the hospital, were

admitted into evidence. (See Commonwealth Exhibits 5-30). This

court would also note that the injury to Mr. John Szwaczkowski's head

was clearly visible to, and easily noticed by, this court when Mr.

Szwaczkowski testified during the non-jury trial, a fact mentioned by

7 u {. Circulated 08/31/2015 02:46 PM

the court during the sentencing of each Defendant. (See Hughes

Sentencing Transcript, 7-S;Feli Sentencing Transcript, 20).

The Defendants testified that they were simply defending

themselves from the victims. (N.T. 142-144, 206-208). Both

Defendants agreed that Defendant Hughes' bike lock was nine (9)

inches in length and made of metal and that Defendant Feli's lock was

seven (7) inches in length and also made of metal. (N.T. 152, 215).

Defendant Feli denied ever striking anyone with a bike lock, claiming

that her only involvement was when she punched Mr. Hrabolowski in

the arms because he would not let go of her bicycle. (N.T. 146-150).

Despite the Defendants' claims that they acted in self-defense, neither

Defendant Feli nor Defendant Hughes called the police until four ( 4)

days after this incident. (N.T. 149).

Both Defendants challenged the sufficiency of the evidence and

the weight of the evidence. Before turning to the specific offenses, the

court would note that the well-established test for a challenge to the

sufficiency of the evidence is whether the evidence, taken in the light

most favorable to the Commonwealth as verdict winner, establishes

each and every element of the offenses charged beyond a reasonable

doubt. Commonwealth v. Noel Matos Montalvo, 956 A.2d 926, 932

8 U l' . Circulated 08/31/2015 02:46 PM

(Pa. 2008). The Commonwealth is entitled to all reasonable inferences

from the evidence, and it must be remembered that credibility

determinations are for the fact finder. A challenge to the credibility of

a witness is not a basis for a claim that the evidence was insufficient.

A fact-finder is free to believe some, all or none of the testimony of

any witness presented by either party and to accept or reject any

evidence submitted by either party. Commonwealth v. Cousar, 928

A.2d 1025, 1033 (Pa. 2007).

When reviewing a claim that the verdict was against the weight

of the evidence, it must be remembered that "[t]he weight of the

evidence is exclusively for the finder of fact who is free to believe all,

part, or none of the evidence and to determine the credibility of the

witnesses. An appellate court cannot substitute its judgment for that of

the finder of fact. Thus, we may only reverse the jury's verdict if it is

so contrary to the evidence as to shock one's sense of justice."

Commonwealth v. Begley, 780 A.2d 605, 619 (Pa. 2001).

When a judge sits as fact-finder in a non-jury trial:

[A] judge's role ... is not equivalent to his or her role with respect to post-trial motions. During trial, the province of a trial judge sitting without a jury is to do what the jury is required to do, namely, consider all the evidence; reconcile contradictions and discrepancies in the testimony, if possible; dismiss what is incredible; and, from all that is

.··-.

9 U Circulated 08/31/2015 02:46 PM

presented, assemble a logical, continuous account which rings with verisimilitude, appeals to reason and convinces the judgment that the controverted event occurred in that and in no other manner. Commonwealth v. Lemons, 404 Pa. 263, 268, 171 A.2d 785, 788 (1961). With respect to post-trial motions, however, the trial judge's role is to consider and rectify, if necessary, alleged trial errors. Commonwealth v. Nock, 414 Pa.Super. 326, 333, 606 A.2d 1380, 1383 (1992). When considering a post-verdict motion in arrest of judgment or the granting of a new trial, "the trial court cannot alter the verdict based upon a redetermination of credibility or a re-evaluation of evidence." Id. at 334, 606 A.2d at 1384.

Commonwealth v. Johnson, 631 A.2d 639, 643 (Pa. Super. 1993).

Accordingly, in assessing a challenge to the weight of the evidence, a

judge may not revisit credibility determinations it made when

rendering its verdict and may not re-weigh the evidence.

COUNT 4- CRIMINAL CONSPIRACY

To sustain a conviction for criminal conspiracy, the

Commonwealth must prove, beyond a reasonable doubt, the presence

of the following elements: 1) an intent to commit or aid in an unlawful

act; 2) an agreement with a co-conspirator; and 3) an overt act in

furtherance of the conspiracy. 18 Pa. C.S.A. § 901.

Because it is difficult to prove an explicit or formal agreement to commit an unlawful act, such an act may be proved inferentially by circumstantial evidence, i.e. the relations, conduct or circumstances of the parties or overt acts on the part of the co-conspirators.

Commonwealth v. Galinves, 786 A.2d 1004, 1010 (Pa. Super. 2001).

10 U ' i Circulated 08/31/2015 02:46 PM

The Defendants contend that the evidence was insufficient to

establish the existence of a conspiratorial agreement. They also claim

the verdict was against the weight of the evidence. Neither claim has

any merit.

While there was no direct evidence of a conspiratorial agreement

between the Defendants, the Commonwealth introduced sufficient

circumstantial evidence to support a conviction for conspiracy. The

law is clear that:

Circumstantial evidence can include, but is not limited to, the relationship between the parties, the knowledge of and participation in the crime, and the circumstances and conduct of the parties surrounding the criminal episode. Commonwealth v. French, 396 Pa. Super.436, 578 A.2d 1292, 1294 (1990). These factors may coalesce to establish a conspiratorial agreement beyond a reasonable doubt where one factor alone might fail. Id.

Commonwealth v. Thoeun Tha, 64 A.3d 704, 710 (Pa. Super. 2013).

While it is true that there was no evidence of an explicit or

stated agreement between the parties, the evidence clearly

established that they were jointly participating in this crime and that

there was a tacit understanding between them. The evidence proved

that there was an association between these Defendants and that they

were together before, during, and after the two (2) incidents involving

11 iJ· '- ... { 1, -, \ . Circulated 08/31/2015 02:46 PM

these victims. The evidence also established that both had knowledge

of the offenses committed by the other conspirator.

Defendant Feli was present when Defendant Hughes knocked the

mirror off of Mr. Hrabolowski's vehicle. (N.T. 17-18). When the

Defendants encountered the victims again, Defendant Feli was present

when Defendant Hughes began the assault on the two (2) victims.

(N.T. 24-26). She then joined him in the assault, striking John

Hrabolowski on the arms to break his grip on the bicycle lock Hughes

was using in the assault (N.T. 28-30) and then striking John

Szwaczkowski, the second victim, about the head and neck as he lay

on the ground attempting to defend himself from Defendant Hughes'

attack. (N.T. 74-75, 109, 117). Also, the Defendants left the scene of

the attack together. (N.T. 32-33). These facts were sufficient to

establish a criminal conspiracy between the Defendants in this matter,

with the object of that conspiracy being the assault on these victims.

In Commonwealth v. French, 578 A.2d 1292, 1294 (Pa. Super.

1990), the Superior Court found the evidence sufficient to prove

conspiracy to commit aggravated assault where the appellant and a

group of relatives and friends approached the victim together, knocked

the victim to the ground, continued to beat the victim and attacked the

12 u C-·. Circulated 08/31/2015 02:46 PM

Pol Q(\J ")~· police when they arrived. Similarly, in Commonwealth v.-Polen, T A.3d 518, 519-520 (Pa. Super. 2011). The Superior Court affirmed a

finding that the evidence was sufficient to support an aggravated

assault conviction where the appellant and a group of individuals

approached the victims as a group, battered the victim's face,

knocking out a tooth, and fled the scene together. In neither of those

cases was there evidence of a stated or explicit agreement; the

agreement was inferred from the circumstances.

The facts in this case are markedly similar. The Defendants

were together during the initial encounter between the victim and John

Hrabolowski. (N.T. 14-16). They remained together when they

encountered him and the second victim a few minutes later (N.T. 24-

26), and both participated in the assaults on both victims, assisting

one another in doing so. (N.T. 28-30, 32, 73-75). Both also fled the

scene of the attack together. (N.T. 32-33). This was sufficient to

prove the conspiratorial agreement and the required shared intent.

The actual assaults were clearly the overt acts. Accordingly, the

challenge to the sufficiency of the evidence as to the charges of

Criminal Conspiracy was properly rejected by this court.

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Similarly, the challenge to the weight was also properly rejected.

This court's verdict turned on an assessment of the credibility of the

witnesses, an assessment that was unfavorable to the Defendants. To

put it simply, where the testimony of the Defendants conflicted with

the testimony of the victims, this court believed the testimony of the

victims over that of the Defendants. This court is not only without the

power to revisit credibility determinations, it would not, if it had that

power, change them. The court found the victims to be believable and

credible, whereas the testimony of the Defendants lacked that "ring of

truth" necessary for this court to believe their testimony. The verdict

was not against the weight of the evidence as to the charge of criminal

conspiracy.

COUNTS 2 & 3

AGGRAVATED ASSAULT- ASSAULT WITH A DEADLY WEAPON

It is axiomatic that a defendant who is not a principal actor in

committing a crime may, nevertheless, be liable for the crime if he was

an accomplice of the principal actor. Commonwealth v. Bradley, 392

A.2d 688, 690 (Pa. Super. 1978). A defendant can also be liable for

the acts of another by virtue of their conspiracy. "Once the trier of

fact finds that there was an agreement and the defendant intentionally

entered into the agreement, that defendant may be liable for the overt

14 u Circulated 08/31/2015 02:46 PM

acts committed in furtherance of the conspiracy regardless of which

co-conspirator committed the act." Commonwealth v. Murphy, 844

A.2d 1228, 1238 (Pa. 2004). Accordingly, either Defendant here can

be held criminally liable for the acts of the other Defendant if those

acts were done in furtherance of the criminal conspiracy. Both

Defendants contend that the evidence was insufficient as to the

Aggravated Assault charges found at counts 2 and 3. Count 2 charged

Aggravated Assault -Assault with a Deadly Weapon as to John

Hrabolowski, while count 3 charged the same as with regard to John

Szwaczkowski.

Turning first to Count 2, the evidence established that Defendant

Feli struck this victim several times on his arms with her heavy, metal

bicycle lock. (N.T. 28-30, 152). Mr. Hrabolowski suffered pain and

bruising in the areas where he was struck. (N.T. 30-31). The lock

constituted a deadly weapon pursuant to Pennsylvania law, which

defines a deadly weapon as "[a]ny firearm, whether loaded or

unloaded, or any device designed as a weapon and capable of

producing death or serious bodily injury, or any other device or

instrumentality which, in the manner in which it is used or

intended to be used, is calculated or likely to produce death or

serious bodily injury." 18 Pa. C.S.A. § 2301 (emphasis added). A

15 U f Circulated 08/31/2015 02:46 PM '·

heavy blunt object, like a seven (7) · inch long metal bicycle lock, is

capable of producing death or serious bodily injury. In this case, a

similar lock wielded by Defendant Hughes actually caused serious

bodily injury to John Szwaczkowski. (N.T. 77-78; Commonwealth

Exhibits 5-30). Obviously, then, Defendant Feli's bike lock was

capable of doing the same to Mr. Hrabolowski.

The evidence also established that, at minimum, the victim

suffered bodily injury. He testified that he suffered substantial pain,

and he had bruising on his arms. (N.T. 30-31). In Commonwealth v. ct Goins, 501 A.2d 27k'(Pa. Super. 1985), the Superior Court held that

bruising and scratching was sufficient to establish that the victim

3 suffered bodily injury. Accordingly, the evidence was sufficient to

prove the Defendant Feli guilty of this offense as a principal. The

verdict was also not against the weight of the evidence.

Because Defendant Hughes, as a result of his involvement in the

criminal conspiracy to assault the victims and as Defendant Feli's

accomplice, is responsible for the crimes committed by his co-

conspirator in furtherance of their conspiracy, his challenge to the

sufficiency and weight of the evidence as to Count 2 is likewise without 3 As the Court will set forth later in this Opinion, the evidence was also sufficient to establish that Defendant Feli attempted to cause serious bodily injury to the victim Hrabolowski when she struck him repeatedly with the bicycle lock.

16 Circulated 08/31/2015 02:46 PM

merit. Her assault was in furtherance of the object of the

conspiratorial agreement, the assault of the victims.

The evidence was also sufficient as to Count 3 as to Defendant

4 Feli both as a principal and as Defendant Hughes' co-conspirator.

Because she was Defendant Hughes' accomplice and co-conspirator,

she could be found guilty of any act committed by Defendant Hughes

in furtherance of the conspiracy. Defendant Hughes struck John

Szwaczkowski in the head, causing a skull fracture and concussion and

leaving him with a visible indentation in his head. (N.T. 28, 71-72, 77-

78, 102-103; Hughes Sentencing Transcript 7-8; Feli Sentencing

Transcript 20). Defendant Hughes also struck Mr. Szwaczkowski in the

ribs with his bicycle, breaking five of them. (N.T. 32, 73, 105-108, 77-

78). This was certainly sufficient to establish his guilt of aggravated

assault- assault with a deadly weapon and, because Defendant Feli

was his co-conspirator and/or accomplice, it was sufficient to establish

her guilt as well.

Defendant Feli was also guilty as a principal for her conduct in

striking this victim as he lay on the ground. Though she denied

striking him with her lock, and Mr. Szwaczkowski admitted that he did

4 Defendant Hughes did not challenge the verdict of guilty at this Count of his information.

17 U ( ' ( \. ' Circulated 08/31/2015 02:46 PM

not actually see her do so, the circumstantial evidence was sufficient

to prove that she did. The victim testified that he was struck in his

back and around his head and neck as he lay on the ground. (N.T. 74-

75, 109, 117). The only other person present wielding a bike lock,

Defendant Hughes, could not have hit him as he and Mr. Hrabolowski

were struggling over control of his bike lock. (N.T. 28, 73). It was a

reasonable inference, therefore, that the blows Mr. Szwaczkowski felt

came from Defendant Feli.

COUNT 1- AGGRAVATED ASSAULT

The Defendants both challenge the sufficiency and weight of the

evidence as to Count 1, which charged them with aggravated assault

under subsection (a)(l). This required proof that the Defendants,

through their own actions or through the actions of another for whom

they would be legally responsible, attempted to cause, or intentionally,

knowingly or recklessly caused serious bodily injury to John

Hrabolowski.

This victim, John Hrabolowski, was not as seriously injured as

John Szwaczkowski. He reported bruises on his arms. (N .T. 30-31).

This was not sufficient to establish that he actually suffered serious

bodily injury. The fact that the injury was caused by the Defendant

18 [ '"- ) ( Circulated 08/31/2015 02:46 PM "·

Feli striking him, repeatedly, with the heavy bike lock, however, was

enough to prove an attempt to do so. The Superior Court in

Commonwealth v. Eddowes, 580 A.2d 769, 773 (Pa. Super. 1990),

observed: "The fact that appellant did not cause any serious injury is

irrelevant, as the statute punishes attempts as well as completed

assaults. 18 Pa.CS.A. § 2702(a)."

To determine whether an assailant possessed the intent to inflict

serious bodily injury, the totality of the circumstances surrounding the

assault must be considered. Commonwealth v. Alexander, 383 A.2d

887, 889 (Pa. 1978). Among the circumstances that can be considered

is whether an instrument capable of causing serious bodily injury was

used in the attack. Here, a deadly weapon, as has been previously

discussed, namely, the bicycle lock, was used in the attack.

In Eddowes, supra, the defendant slashed at the victim with a

knife, but did not cut him. That behavior was enough to justify his

conviction at this same statutory section. Here, the Defendant Feli

swung at, and actually struck, the victim with a weapon capable of

causing death or serious bodily injury. (N.T. 28-30). She hit him

several times, according to the testimony. (N.T. 28-30). In fact, she

did so after seeing her co-Defendant strike the other victim with the

19 lJ Circulated 08/31/2015 02:46 PM

bike lock in the head, knocking him to the ground and causing him to

bleed profusely. (N.T. 28). She actually witnessed the infliction of

serious bodily injury by the heavy bike lock that she wielded before

she used her nearly identical bike lock to strike repeatedly at John

Hrabolowski in his arms. She did this while he was simultaneously

engaged with her co-Defendant, trying to stop further attacks on his

roommate, Mr. Szwaczkowski. (N.T. 28-30). The court is satisfied that

her repeated blows, with a deadly weapon, were sufficient to prove

that her intent was to cause serious bodily injury. As the evidence

was sufficient to prove her guilt as a principal for her acts in striking

the victim, it was likewise sufficient to prove her co-Defendant guilty

of the same offense as her co-conspirator and/or accomplice. The

court also does not believe that the verdict was against the weight of

the evidence as to either Defendant at this count.

SENTENCING

Finally, both Defendants have challenged the sentences imposed

by this court. Trial courts have broad discretion in setting sentences.

Sentencing is a matter vested within the sound discretion of the

sentencing judge and will not be disturbed on appeal absent a

manifest abuse of discretion. Com. v. Mouzon, 828 A.2d 1126, 1128

(Pa. Super. 2003). To constitute an abuse of discretion, the sentence

/ ;· 20 ~ { ·.·· Circulated 08/31/2015 02:46 PM

imposed must either exceed the statutory limits or be manifestly

excessive. Com. v. Gaddis, 639 A.2d 462, 469 (Pa. Super. 2003). An

abuse of discretion is not merely shown by an error in judgment, but

rather by establishing 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.

Mouzon, supra, at 1128. In determining whether a sentence is

manifestly excessive, the appellate court must give great weight to the

sentencing court's discretion, as the court is in the best position to

measure factors such as the nature of the crime, the defendant's

character, and the defendant's display of remorse, defiance or

indifference. Com. v. Ellis, 700 A.2d 948, 958 (Pa. Super. 1997).

Where an excessiveness claim is based on a court's sentencing

outside of the standard guideline ranges, an appellate court looks, at a

minimum, for an indication on the record that the sentencing court

understood the suggested sentencing range. Com. v. Rodda, 723 A.2d

212, 214 (Pa. Super. 1999). When the court so indicates, it may

deviate from the guidelines to fashion a sentence which takes into

account the protection of the public, the rehabilitative needs of the

defendant, and the gravity of the particular offenses as it relates to the

impact on the victim and the community, so long as the court also

21 (_~) Circulated 08/31/2015 02:46 PM

states the factual basis and specific reasons to deviate from the

guidelines. Mouzon, supra, at 1128. Sentencing guidelines are merely

advisory, and the sentencing court may sentence a defendant outside

of the guidelines so long as it places its reasons for deviation on the

record. Com. v. Cunningham, 805 A.2d 566, 575 (Pa. Super. 2002).

In setting a sentence, a court has discretion to run the sentence

concurrently with or consecutively to other sentences being imposed.

Mouzon, supra, at 1130. The Superior Court has expressed concern

that running sentences concurrently as a matter of habit can give a

defendant a "volume discount" for separate criminal acts. Com. v.

Hoag, 665 A.2d 1212, 1214 (Pa. Super. 1995).

Defendant Hughes claims that his sentence was an abuse of

discretion because his prior record score was calculated using

convictions that occurred nine (9) and ten (10) years ago and because

the sentence did not "properly reflect the nature of the offense, the

impact on the victim or the rehabilitative needs of the defendant."

This claim is specious. How a prior record score is calculated is set by

statute and regulation. (See 42 Pa. C.S.A. §9721 (b) and 204 Pa.

Code §303.1, et seq.) The age of the prior offenses that determine

the prior record score is not taken into account in determining that

22 r .

Circulated 08/31/2015 02:46 PM

score. While a court may consider the age of the offenses that

resulted in the prior record score in determining what sentence to

impose, the Defendant's claim that the court erred in utilizing those

older convictions to calculate the prior record score is without merit.

To the extent that the Defendant is claiming that the age of the

convictions warranted a lesser sentence, that claim is likewise without

merit. These prior convictions were not offenses committed decades

ago, when the Defendant was barely an adult; having been born in

1978, he was in his mid to late-twenties when he committed those

offenses. They occurred less than ten (10) years prior to this violent

incident, and the court gave them proper consideration in formulating

the sentence.

Defendant Hughes also generally complains that the sentence

was an abuse of discretion. He does not explain with any specificity

why the sentence was supposedly an abuse of this court's broad

sentencing discretion. Defendant Hughes simply states that the

sentence imposed did not "properly reflect the nature of the offense,

the impact on the victim or the rehabilitative needs of the defendant."

Simply mimicking the language of the sentencing code does not

provide the court with an explanation for "why" the sentence failed to

23 <__J \-.·- Circulated 08/31/2015 02:46 PM

comply with the sentencing code. In Commonwealth v. Bullock, 948

A.2d 818 (Pa. Super. 2008), the court held that, where the defendant

claimed that the sentence " ... was unduly harsh given the nature and

the circumstances of the case ... [and] was inconsistent with the

Sentencing Act which provides for the balancing of the welfare of the

community with the rehabilitative needs of the Appellant ... ," failed to

preserve, for appellate review, a challenge to the discretionary aspect

of the sentence. The Defendant's claim here similarly fails to explain

how the court abused its discretion. Other than the incorrect claim

that the court should not have considered nine (9) and ten (10) year

old convictions in calculating his prior record score, Defendant Hughes

has cited to no specific provision of the sentencing act this court

supposedly violated. Accordingly, the sentencing claims should be

considered waived.

To the extent that the claims are not deemed waived, the court

set forth, at length, on the record, why it imposed the standard range

sentence it did. (Hughes' Sentencing Transcript, 24-28). The court

could very well have imposed standard range sentences at all but one

of the other counts, but, instead, imposed probationary sentences.

The court is satisfied that the sentence imposed on the Defendant

Hughes was the appropriate sentence given the severity of the

24 l~----:.,)' Circulated 08/31/2015 02:46 PM

offenses, the impact on the victim and the rehabilitative needs of the

Defendant Feli claims that court failed to properly consider the

factors required by the sentencing code. The record of the trial and

sentencing hearing belies this claim. The suggestion that Defendant

Feli had a "limited role" in the incident is contrary to the facts that the

Commonwealth established at trial. While Defendant Feli described

her role as limited, this court, in rendering its verdict, concluded

otherwise. She struck both victims with her bicycle lock, hitting Mr.

Hrabolowski repeatedly in the arms and hitting Mr. Szwaczkowski in

his back, neck and head. She assisted her co-Defendant in his

assaults on both victims. The Defendant's insistence that she played a

"limited role" in these assaults when she spoke at the sentencing

hearing, contrary to the- evidence presented at trial and the verdicts

this court rendered, was a large factor in causing this court to impose

the sentence it did. The court explained:

THE COURT: I've been tossing around sentences in my mind for the last two weeks for you. Some ranged from things that you would very much like, to some things you would not much like. My sort of Jina I decision is I always need to hear what people say at the time of sentencing. And what you have said today, quite frankly, to me does not err on the side of giving you time served and letting you go back to Connecticut at this point in time. Because I don't think you fully realize what you did in this situation. I don't think you fully comprehend your actions here. You

,fr. 25 ,..,.,. )' Circulated 08/31/2015 02:46 PM

weren't a puppet on a string. You weren't a programmed robot. You are a person who has free will, who is able to exercise that free will to do the right thing. And you failed to do that here today and on that day.

(Feli Sentencing Transcript, 23-24). The court properly considered this

Defendant's substantial role in this incident. (Feli Sentencing

Transcript, 19-24).

The court also considered the impact on the victims and the

need for the protection of society, as well as the rehabilitative needs of

Defendant Feli. The harm to each victim was considered by the court

and mentioned by the court at the sentencing hearing. The court also

noted that it had received, read and considered several letters

provided on the Defendant's behalf. The availability of rehabilitative

programs at the state prison was also discussed.

The minimum sentence of incarceration imposed at Count 1,

twenty-four (24) months, was near the bottom of the standard range

of twenty-two (22) to thirty-six (36) months. No other sentence of

incarceration was imposed on the other counts, even though some of

those involved a second victim. The court properly weighed the

statutory sentencing factors and imposed a sentence that was

consistent with the protection of society, the severity of the offense,

the impact of the offense on the victims and the rehabilitative needs of

26 '· ( \ Circulated 08/31/2015 02:46 PM

Defendant Feli. The court did not abuse its discretion when it imposed

sentence.'

Given that there was sufficient, credible evidence to support the

convictions of the Defendants as to all counts, and that this court

sentenced in the standard range for both Defendants after considering

the severity of the offenses, the impact on the victims, the protection

of society and the needs of the Defendants, this court's convictions

and sentences of both Defendants should be upheld.

BY THE COURT:

Date: