J-A30011-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
KANIKA OUM
Appellant No. 1939 EDA 2013
Appeal from the Judgment of Sentence June 13, 2013
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0001090-2012
BEFORE: LAZARUS, J., MUNDY, J., and PLATT, J.*
MEMORANDUM BY LAZARUS, J.: FILED JANUARY 30, 2015
Kanika Oum appeals from the judgment of sentence entered in the
Court of Common Pleas of Philadelphia County. We affirm in part, and
vacate and remand in part, and we rely upon the opinion authored by the
Honorable Charles J. Cunningham, III.
On November 1, 2011, Oum and his co-defendant, Samneang
Samneang,1 shot a fifteen-year old boy in the face near the intersection of
75th Street and Buist Avenue in Southwest Philadelphia. Following trial, a
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
Co-defendant’s name is Samneang Sin, however he was charged and tried
as Samneang Samneang. See N.T. Trial, 2/27/13, at 49-50. Samneang’s
related appeal is docketed at 1824 EDA 2013.
J-A30011-14
jury convicted Oum of attempted murder,2 criminal conspiracy,3 aggravated
assault,4 violation of the Uniform Firearms Act (VUFA),5 and possession of an
instrument of crime (PIC).6
The court sentenced Oum to a term of imprisonment of 15-30 years
for attempted murder, a consecutive term of 5-10 years on the conspiracy
conviction, and a consecutive term of 2-5 years on the VUFA conviction, for
an aggregate term of 22-45 years’ imprisonment. The court imposed no
further penalty on the PIC conviction. The court also determined the
aggravated assault conviction merged for sentencing purposes.
Oum filed a timely appeal to this Court. The trial court ordered Oum
to file a Rule 1925(b) statement within 21 days. See Pa.R.A.P. 1925(b).
After seeking an extension of time, which the court granted, Oum filed his
Rule 1925(b) statement on September 12, 2013. He now raises the
following issues for our review:
____________________________________________
2
18 Pa.C.S. §§ 901(a), 2502(a).
3
18 Pa.C.S. §§ 903(a), 2502(a).
4
18 Pa.C.S. § 2702(a).
5
18 Pa.C.S. § 6106.
6
18 Pa.C.S. § 907(a).
-2-
J-A30011-14
1. Did the trial court err in permitting the Commonwealth to
repeatedly elicit hearsay?
2. Did the trial court err in permitting testimony that
Defendant had been seen with a firearm prior to the
shooting, where the incident was remote and unrelated,
and Defendant was not the alleged shooter in the case at
trial, making the probative value of this evidence
outweighed by its prejudicial impact on the jury?
3. Did the trial court err by permitting the prosecutor to elicit
prejudicial testimony that Defendant’s brother had asked a
witness not to come to court?
4. Did the trial court err by refusing to declare a mistrial after
the prosecutor impermissibly implied during his closing
argument that Defendant had a burden to produce
witnesses and evidence in his defense?
5. Should this Court remand the matter for re-sentencing in
light of the lower’s court’s sua sponte recognition that
Defendant’s sentence is improper?
Appellant’s Brief, at 14.
Upon review of the parties’ briefs, the relevant law, and the record as
a whole, we find that the trial court has correctly disposed of issues 1-4 in
his opinion. See Opinion, 2/7/14, at 8-19. Therefore, we affirm the
convictions based on Judge Cunningham’s opinion.
With respect to Oum’s fifth issue, the trial court acknowledged in its
Rule 1925(a) opinion that Oum’s sentence was illegal. The court sentenced
Oum to 15-30 years for attempted murder, and a consecutive term of 5-10
years on the conspiracy to commit murder conviction. As the trial court
recognized, Oum could not be sentenced for two inchoate crimes for conduct
designed to culminate in the same offense, that is, murder. Section 906 of
-3-
J-A30011-14
the Crimes Code precludes conviction of more than one of the inchoate
crimes of criminal attempt, criminal solicitation or criminal conspiracy “for
conduct designed to commit or to culminate in the commission of the same
crime.” 18 Pa.C.S. § 906. See Commonwealth v. Kelly, 78 A.3d 1136
(Pa. Super. 2013) (sentence for conspiracy and attempted murder should
have merged); see also Commonwealth v. Martinez, 438 A.2d 984 (Pa.
Super. 1981) (where criminal conspiracy to commit burglary and subsequent
attempted burglary constituted “conduct designed to culminate in the
commission of the same crime,” that is, burglary, defendant should not have
been sentenced for both attempt and conspiracy, but should have only been
sentenced for one or the other); Cf. Commonwealth v. Jacobs, 39 A.3d
977 (Pa. 2012) (where defendant's convictions for two inchoate crimes had
separate criminal purposes they did not merge.)
We agree with the trial court’s assessment. Therefore, we vacate the
judgment of sentence and remand for resentencing in accordance with 18
Pa.C.S. § 906. See Commonwealth v. Watts, 465 A.2d 1267 (Pa. Super.
(1983). Counsel is directed to attach a copy of the trial court’s opinion in
the event of further proceedings in this matter.
Affirmed in part; vacated and remanded in part. Jurisdiction
relinquished.
-4-
J-A30011-14
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/30/2015
-5-
.' - .... ---~~ -._._._.__._-_._--_ ... __.
.. _.- ---- --
Circulated 01/05/2015 10:31 AM
COURT OF COMMON PLEAS
FIRST JUDlCL