Com. v. Zachary, H.

• Court: Superior Court of Pennsylvania
• Decided: October 28, 2019
• Docket: 1999 MDA 2018
• Status: Unpublished

Opinion

J-S51016-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : HEATH ZACHARY : : Appellant : No. 1999 MDA 2018

Appeal from the Judgment of Sentence Entered November 15, 2018 In the Court of Common Pleas of Dauphin County Criminal Division at No(s): CP-22-CR-0004128-2017

BEFORE: PANELLA, P.J., GANTMAN, P.J.E., and MUSMANNO, J.

MEMORANDUM BY GANTMAN, P.J.E.: FILED OCTOBER 28, 2019

Appellant, Heath Zachary, appeals from the judgment of sentence

entered in the Dauphin County Court of Common Pleas, following his jury trial

convictions for aggravated assault, conspiracy to commit aggravated assault,

robbery, and conspiracy to commit robbery.1 We affirm.

In its opinion, the trial court fully and correctly sets forth the relevant

facts and procedural history of this case. Therefore, we have no reason to

restate them.

Appellant raises three issues for our review:

WHETHER THE EVIDENCE WAS INSUFFICIENT TO PROVE APPELLANT GUILTY OF CONSPIRACY TO COMMIT AGGRAVATED ASSAULT AND CONSPIRACY TO COMMIT ROBBERY, AS THERE WAS INSUFFICIENT EVIDENCE TO ____________________________________________

118 Pa.C.S.A. §§ 2702(a)(1), 903 (section 2702 related), 3701(a)(1), and 903 (section 3701 related), respectively. J-S51016-19

PROVE THAT APPELLANT CONSPIRED WITH ANOTHER PARTY TO ASSAULT AND ROB…VICTIM[?]

WHETHER THE EVIDENCE WAS INSUFFICIENT TO PROVE THAT APPELLANT COMMITTED THE CRIME OF ROBBERY, IN THAT THE EVIDENCE WAS CLEAR THAT ANOTHER, UNIDENTIFIED INDIVIDUAL TOOK…VICTIM’S PROPERTY AND THERE WAS INSUFFICIENT EVIDENCE PRESENTED THAT APPELLANT ACTED AS AN ACCOMPLICE[?]

WHETHER THE EVIDENCE WAS INSUFFICIENT TO PROVE BEYOND A REASONABLE DOUBT THAT APPELLANT WAS GUILTY OF AGGRAVATED ASSAULT, IN THAT THE COMMONWEALTH FAILED TO ESTABLISH THAT APPELLANT ATTEMPTED TO CAUSE SERIOUS BODILY INJURY TO…VICTIM[?]

(Appellant’s Brief at 4).

After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinion of the Honorable Richard A.

Lewis, P.J., we conclude Appellant’s issues merit no relief. The trial court

opinion comprehensively discusses and properly disposes of the questions

presented. (See Trial Court Opinion, filed February 13, 2019, at 4-8) (finding:

ample testimony showed Victim sustained serious bodily injury to her face;

evidence indicated Appellant and his cohort targeted Victim at bar, followed

her out of bar, assaulted her, and stole her purse; police apprehended

Appellant at scene of assault, where Appellant was covered in blood; thus,

evidence was sufficient to convict Appellant of aggravated assault and

conspiracy to commit aggravated assault; further, Victim testified that while

she was at bar with her purse, two men approached her; testimony indicated

two eyewitnesses saw Appellant assaulting Victim, while other male took

-2- J-S51016-19

Victim’s purse and ran; thus, evidence was sufficient at trial to sustain

Appellant’s convictions for robbery and conspiracy to commit robbery).

Accordingly, we affirm on the basis of the trial court opinion.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 10/28/2019

-3- (. ·. ORIGINAL. Circulated 10/10/2019 10:22 AM

COMMONWEALTH OF PENNSYLVANIA : IN THE COURT OF COMMON PLEAS : DAUPHIN COUNTY,.PENNSYLVANIA

vs. : NO. 4128 CR 2017

: CRIMINAL MATTER - APPEAL HEATH ZACHARY Defendant/Appellant

MEMORANDUM OPINION

Presently before this Court is the Appeal filed in the above-captioned matter(s). This

opinion is written pursuant to Pa.R.A.P. 192S(b).

PROCEDURAL BACKGROUND

Following a jury trial held on September 25-26, 2018, Appellant was found guilty of Count

1 - aggravated assault, Count 2 - conspiracy to commit aggravated assault, Count 3 - robbery, and

Count 4 - conspiracy to commit robbery.' On November 15, 2018, Appellant was sentenced as

follows: at Count 1 to a period of incarceration of not less than 72 months nor more than 144

months, at Count 2 to a period of incarceration.of not less than 60 months nor more than 120

months running concurrently with Count 1, at Count 3 to aperiod of incarceration of not less than

45 months nor more than 90 months running concurrently with Count 1, and at Count 4 to a period

of incarceration of not less than 45 months nor more than 90 months running concurrently with

Count 1. Appellant's aggregate sentence is 72 months to 144 months.

1 18 Pa.C.S.A. §§ 2702(a)(J), 903, 3701(a)(1), 903.

1 Appellant filed a timely notice of appeal on December 10, 2018. In compliance with our

l 925(b) Order, Appellant filed a Concise Statement of Errors Complained of on Appeal raising

the following allegations of errors:

1. The evidence was insufficient to prove appellant guilty of conspiracy to commit aggravated assault and conspiracy to commit robbery, as there was insufficient evidence to prove that appellant conspired with another party to assault and rob the victim. 2. The evidence was insufficient to prove that appellant committed the crime of robbery, in that the evidence was clear that another, unidentified individual took the victim's property and there was insufficient evidence presented that appellant acted as an accomplice. 3. The evidence was insufficient to prove beyond a reasonable doubt that appellant was guilty of aggravated assault, in that the Conunonwealth failed to establish that appellant caused or attempted to cause seriously bodily injury to the victim.2

FACTUAL BACKGROUND On June 18, 2017, Shirley Dilliplane ("victim/Ms; Dilliplane") remembers waking up in

Hershey Medical Center.3 Ms. Dilliplane was at Alva Bar and Restaurant on 4th Street in

Harrisburg. N.T. at 6. She was sitting alone when two gentlemen were trying to "accost" (come

on to) her. Id. She noticed a gentleman to her right and to her left and she had her purse with her

at the time. These gentlemen tried talking to her several times and Ms. Dilliplane described the

one gentleman as being.6'2", black, and wearing a hat, a Hawaiian shirt (tan and brown) and had

glasses. The other gentleman was a little shorter with a white sweat suit on. N.T. at 7.4 The victim

was also able to identify the Defendant as the individual who was wearing the white sweat suit.

N.T. at 11. After several drinks, the victim left Alva's and began walking to the Presbyterian

Apartments nearby.5 The victim went down Market Street to Court Street and remembers being

2 Appellant's concise statement filed January 2, 2019. 3 Transcript of Proceedings, Jury Trial (Testimony only), September 25-26, 2018, page 6 (hereinafter ''N. T. at "). 4 The Commonwealth introduced, as Commonwealth's Exhibit 1, a video of the inside of Alva. 5 The Commonwealth introduced, as Commonwealth's Exhibit 2, a map with the route the victim took.

2 by a barber shop at the comer of Walnut and Court Street. N.T. at 14. The next thing the victim

remembers is waking up at the Hershey Medical Center with multiple facial breaks. N.T. at 15.

There was a group of friends who were walking home when they came upon the victim

and a man (later identified as the Defendant) holding the victim. A.L., a 17 year old, testified that

he saw a man holding a lady and that the lady was not moving. N.T. at 41. A.L. saw this man slam

the victim, punch her, and noticed this man's hand go towards the face of the victim. N.T. at 42.

A.L. ran over to help and saw a man wearing a white shirt with shorts and then called for help.

N.T. at 44. Although not able to positively identify the Defendant, A.L. did recognize the face a

little bit. N.T. at 45. On cross-examination, A.L. testified that it was another guy who picked up

the victim's purse and ran off while the guy in the white just stood there. N.T. at 47. A.L.'s friend,

D.R., who was 15 years old at the time, also witnessed a man "dropping the girl." N.T. at 51. D.R.

testified that it looked like the victim was "falling from air." Id. D.R. went over to the victim and

noticed that she was unconscious. N.T. at 52. He noticed that there were two men there, one was

standing over the victim and had a white shirt and shorts on. N.T. at 53. This man was trying to

grab her stuff. The other man took off running. N.T. at 54.

The Commonwealth introduced several law enforcement individuals who testified to the

events on June 18, 2017. William Dorgan, an employee of Paragon Systems, responded to a call

from an associate and was the first to arrive on the scene.6 N.T. at 58-61. Mr. Dorgan took the

Defendant into custody while the other male took off running. N.T. at 61. Mr. Dorgan testified that

the Defendant was covered in blood and that he recognized the juveniles but never had a problem

with them. N.T. at 63-64. Patrol Officer Wesley Feduke, of Harrisburg City Police, also arrived

on the scene and noticed that the victim had a flat, bloody lip, was unconscious, was bleeding from

6 Paragon Systems contracts with the Department of Homeland Security to provide security services to government office buildings. Mr. Dorgan was patrolling the Ronald Reagan Federal Office building in downtown Harrisburg. 3 her nose, and that her head was swollen. N.T. at 69. Corporal Brian Henry, patrol supervisor with

Harrisburg City Police, also anived on the scene and stood next to the Defendant. N.T. at 76. The

Defendant repeatedly stated that he did not do this but when Corporal Henry asked the Defendant

what happened, the Defendant responded that he strangled and dropped the victim. N.T. at 78.

Finally, the Commonwealth introduced the testimony of Officer Nicholas Herbster, a

Harrisburg City Police Officer. Officer Herbster arrived on the scene and later interviewed the

victim at the hospital. N.T. at 84 Through Officer Herbster, the Commonwealth introduced

photographs of the Defendant covered in blood. See Commonwealth's Exhibits 3-15.

Additionally, the Commonwealth introduced the Defendant's clothes. Commonwealth's Exhibit

16. Photographs of the victim's face after the assault were also introduced. See Commonwealth's

Exhibits 17 and 18.

DISCUSSION

When reviewing a sufficiency claim, we employ the following standard of review:

The standard we apply when reviewing the sufficiency of the evidence 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 the fact-finder. In addition, we note that the facts and circumstances established by the Commonwealth need not preclude every possibility of innocence. Any doubts regarding a 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 trier of fact while passing upon the.credlbility of witnesses and the weight of the evidence produced is free to believe all, part or none of the evidence.

4 Commonwealth v. Matthews, 870 A.2d 924, 928 (Pa.Super.2025)(citing Commonwealth

v. Nahavandian, 849 A.2d 1221, 1229-30(Pa.Super.2004)(citations omitted).

Appellant asserts that the evidence was insufficient to sustain his conviction for criminal

conspiracy to commit aggravated assault and aggravated assault. A criminal conspiracy conviction

and the elements of aggravated assault requires proof of:

(I) 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. 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. Galindes, 786 A.2d 1004, 1010 (Pa.Super.2001) (quoting Commonwealthv. Spotz, 562 Pa. 498, 756 A.2d 1139, 1162 (2000)). 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 Aggravated assault, the crime underlying Appellant's conspiracy conviction, occurs when a person "attempts to cause serious bodily injury to another, or causes such injury intentionally, knowingly, or recklessly under circumstances manifesting an extreme indifference to the value of human life." 18 Pa.C.S.A. § 2702(a)(l). 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. § 2301.7

The testimony and evidence presented at trial, together with all reasonable inferences

derived therefrom, is sufficient to sustain Appellant's convictions of aggravated assault and

conspiracy to commit aggravated assault. Here, there was ample testimony provided to show that

the victim sustained a serious bodily injury to her face. The victim testified that the Defendant and

another male had tried to come after her while she was at the bar. After the victim left the bar, the

7 Quoting Commonwealth v. Thomas, 65 A.3d 939, 943-44 (Pa. Super. 201&}.

5 Defendant and an unidentified male proceeded to follow the victim.8 The next thing the victim

remembers is waking up at Hershey Medical Center. There was a group of young men who

witnessed the assault and tried to help. Two young men witnessed the Appellant dropping the

victim and punching her. These juveniles also witnessed an unidentified male run away from the

scene with the victim's purse. When local law enforcement arrived, the victim was unconscious

and had to be transported to the hospital. The Appellant was apprehended at the scene and was

covered in blood while his co-conspirator fled the scene. The evidence suggests that the Appellant

and another unidentified male targeted the victim in Alva Bar and Restaurant, followed her out of

the bar, assaulted her leaving her badly injured and stole her purse while the victim was walking

to a friend's apartment. Accordingly, there was sufficient evidence to establish the elements of

aggravated assault and conspiracy to commit aggravated assault and the jury properly returned a

guilty verdict.

Appellant also asserts that the evidence was insufficient to sustain a conviction for robbery

and conspiracy to commit robbery. Appellant was charged with robbery under 18 Pa.C.S.A. §

370l(a)(l). Under section 3701(a)(l), "a person is guilty ofrobbery if, in the course of committing

a theft, he: inflicts serious bodily injury upon another." We have already set forth the .elements of

conspiracy above, but we note the factors that our Superior Court has set forth in determining

whether a conspiracy exists. Those factors are "(1) an association between alleged conspirators;

(2) knowledge of the commission of the crime; (3) presence at the scene of the crime; and (4) in

some situations, participation in the object of the conspiracy.', Commonwealth v. Lambert, 795

8 The victim testified that one of the males at the bar was wearing a white sweat suit. Several witnesses stated that the Defendant, who was taken into custody, was also wearing a white sweat suit. Additionally ,this white sweat suit was introduced as a Commonwealth's exhibit.

6 A.2d 1010, 1016 (Pa. Super. 2002). Additionally, A person is an accomplice of another person in

the commission of an offense if:

(1) with the intent of promoting or facilitating the commission of the offense, he: (i) solicits such other person to commit it; or (ii) aids or agrees or attempts to aid such other person in planning or committing it; or

(2) his conduct is expressly declared by law to establish his complicity.

(d) Culpability of accomplice.-

When causing a particular result is an element of an offense, an accomplice in the conduct causing such result is an accomplice in the commission of that offense, if he acts with the kind of culpability, if any, with respect to that result that is sufficient for the commission of the offense.

18 Pa.C.S. § 306(c)-{d). Accomplice liability "may be established wholly by circumstantial

evidence. Only 'the least degree of concert or collusion in the commission of the offense is

sufficient to sustain a finding of responsibility as an accomplice.' No agreement is required, only

aid." Commonwealth v. Knox, 50 A.3d 732, 739 (Pa.Super.2012).

Here, the victim testified that while she was at the bar, with her purse clearly visible, two

men tried to "accost" or come onto her. She then proceeded to leave the bar and the next thing she

remembers is waking up in the hospital. However, a group of young men were walking by and

noticed one male assaulting the victim (later identified as the Appellant) while the other male took

the victim's purse and ran away. The jury was able to conclude from the facts presented that these

two gentlemen saw the victim at a bar and connived a plan to follow the victim, beat her, and steal

her purse. Therefore, the evidence presented at trial is sufficient beyond a reasonable doubt to

sustain the conviction ofrobbery and conspiracy to commit robbery. Appellant acting as principal

or accomplice, planned to commit a theft of the victim's personal items, and in the attempt of

committing said theft, inflicting serious bodily injury on the victim.

7 Accordingly, this Court is satisfied that ample evidence existed to support the verdicts of

the jury beyond a reasonable doubt.

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