Com. v. Holmes, C.

J-S54005-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee

v.

CURTISHA HOLMES

Appellant No. 2016 EDA 2014

Appeal from the Judgment of Sentence June 4, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0010437-2011

BEFORE: BOWES, PANELLA, AND FITZGERALD,* JJ.

MEMORANDUM BY BOWES, J.: FILED OCTOBER 14, 2015

Curtisha Holmes appeals from the judgment of sentence of eleven and

one-half to twenty-three months incarceration to be followed by five years

probation after a jury found her guilty of aggravated assault, burglary,

criminal trespass, simple assault, conspiracy to commit aggravated assault,

and conspiracy to commit burglary. We affirm on the basis of the opinion of

the learned Judge Donna M. Woelpper.

The trial court delineated the facts as follows.

On June 20, 2011, the complainant Tasha Polk ("Polk")
went to Atlantic City to celebrate her birthday with her friend,
Cocoa. She returned to her apartment building at 2202 North
20th Street in Philadelphia at approximately 1:30 a.m. on June
21, 2011. Polk saw her neighbor Nicole Richardson
("Richardson") seated with the defendants on the front steps of
the building adjacent to Polk's own apartment building. Polk,
Richardson, and Polk's friend "T" walked upstairs to Polk's

*
Former Justice specially assigned to the Superior Court.
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apartment. Polk and T began arguing about Polk having gone to
Atlantic City instead of to a party with T, as originally planned.
While Polk and T screamed at one another, individuals from the
neighborhood came up to Polk's apartment. The defendants and
someone named Britney were among those who came upstairs.

Polk asked the crowd to leave her apartment, but they
refused. Britney replied, "F*** no," and hit Polk in the face
approximately five to ten times, until Polk fell back onto the
couch. Defendant Holmes also hit Polk. Polk saw people
recording the fight with their phones. Everyone left the
apartment after the fight, except for Richardson and Polk. Polk
locked her door but then called out the window to the crowd.
Polk could not recall what she yelled out the window, but she did
remember that she was yelling in anger. Within five minutes,
the defendants, Britney, and fifteen to twenty other people came
running back up to Polk's apartment. Defendant Holmes kicked
in the door, breaking off the handle. Defendant Morgan was
carrying something that looked like a broomstick.

The crowd pursued Polk up her apartment stairs to the
bedroom. Richardson attempted to pull the individuals away
from Polk. The defendants, Britney, and the other girls that Polk
recognized from across the street started kicking at her head.
Polk recalled Defendant Holmes kicking her and repeatedly
threatening to kill her. Polk also recalled Defendant [Kahshima]
Morgan using the broomstick to hit her head and face. Polk
eventually lost consciousness. She estimated that she was hit
with the stick, feet, and/or hands approximately forty times.
When she regained consciousness, she found that the contents
of her purse were missing, including her debit card, social
security card, cash, makeup, and identification. She also
observed damage to the living room walls. Polk testified that
she had called the police, but she could not remember when she
called. She also testified that the police never responded to the
call.

Philadelphia Police Officer Eyleen Archie testified that on
June 21, 2011 she received several radio calls for an assault at
2202 North 20th Street. Officer Archie first reported to the
location at 1:41 a.m. for a call for a "person with a knife."
Officer Archie did not investigate the property after that first call.
She did, however, patrol the area for about two minutes. She

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did not see anyone in the vicinity during those two minutes. She
responded to another call at 3:26 a.m. She still did not see
anyone in the vicinity. She knocked on the front door of Polk's
building with her asp but did not receive an answer. She
returned in response to a third call at 5:10 a.m. There still was
no one in the area and no response to her knocking.

Polk stayed at Richardson's apartment, which was in the
building adjacent to Polk's apartment, until Polk's mother picked
her up and took her to Temple University Hospital that same
day. Polk told the treating physician that she had been
assaulted and beat around her head. Polk was diagnosed with a
dental fracture, a subconjunctival hemorrhage, bruising to her
face, a black eye, and sclera lesions. She was ordered to take
600 mg of Motrin every six hours.

Detective Anthony Anderson interviewed Polk at Central
Detectives on June 22, 2011. During the interview, Polk named
the defendants, as well as Britney, Tiffany, and Jessica, as
people involved in the burglary and assault. Polk drove with
Detective Anderson and pointed out where the defendants lived.
Using the names and addresses, Detective Anderson pulled
photographs of both defendants. Polk positively identified both
as having been involved in the assault. Detective Anderson was
not able to locate Britney, Tiffany, or Jessica because Polk did
not know their last names or addresses. Detective Anderson
executed a search warrant at both of defendants homes for any
of Polk's belongings, or any weapon(s) used during the fight.
Nothing was recovered.

Trial Court Opinion, 11/12/14, at 2-4 (internal citations and footnotes

omitted).

A jury found Appellant guilty of aggravated assault, burglary,

conspiracy to commit aggravated assault, conspiracy to commit burglary,

trespass, and simple assault. The court sentenced Appellant on June 4,

2014. It imposed concurrent sentences of eleven and one-half to twenty-

three months incarceration on the aggravated assault and burglary charges.

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In addition, it imposed concurrent five year periods of probation for the

conspiracy counts. The court did not impose a sentence for trespass and

concluded that the simple assault charged merged with the aggravated

assault crime. On June 18, 2014, the court appointed new counsel for

Appellant, who filed a motion to reinstate her post-sentence motion rights

nunc pro tunc. The court denied that motion. Counsel then filed a timely

notice of appeal on July 2, 2014. The court directed that Appellant file and

serve a Pa.R.A.P. 1925(b) concise statement of errors complained of on

appeal. Appellant complied, and the trial court authored its Rule 1925(a)

decision. The matter is now ready for our review. Appellant raises four

issues for our consideration.

I. Whether the evidence presented at trial was sufficient to
convict Appellant of Aggravated Assault?

II. Whether the evidence presented at trial was sufficient to
convict Appellant of Conspiracy to Commit Aggravated
Assault?

III. Whether the evidence presented at trial was sufficient to
convict Appellant of Burglary?

IV. Whether the evidence presented at trial was sufficient to
convict Appellant of Conspiracy to Commit Burglary?

Appellant’s brief at 3.

Each of Appellant’s issues challenge the sufficiency of the evidence. In

performing a sufficiency review, we consider all of the evidence admitted,

even improperly admitted evidence. Commonwealth v. Watley, 81 A.3d

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108, 113 (Pa.Super. 2013) (en banc). We view the evidence in a light most

favorable to the Commonwealth as the verdict winner, drawing all

reasonable inferences from the evidence in favor of the Commonwealth. Id.

The evidence “need not preclude every possibility of innocence and the

fact-finder is free to believe all, part, or none of the evidence presented.”

Id. When evidence exists to allow the fact-finder to determine beyond a

reasonable doubt each element of the crimes charged, the sufficiency claim

will fail. Id. In addition, the Commonwealth can prove its case by

circumstantial evidence. Where “the evidence is so weak and inconclusive

that, as a matter of law, no probability of fact can be drawn from the

combined circumstances[,]” a defendant is entitled to relief. Id. This Court

does not “re-weigh the evidence and substitute our judgment for that of the

fact-finder.” Id.

Appellant begins her argument by disregarding our standard of review

and maintaining that the victim’s “claims of assault were exaggerated and

clearly contradicted on the record.” Appellant’s brief at 9. She continues

that the record only shows that she was present inside the victim’s

apartment when the victim was attacked, and not that she attacked the

victim or conspired to assault the victim. Appellant maintains that the victim

did not suffer serious injury and treated her injuries with Ibuprofen. In

addition, she contends that a video of one of the fights that transpired does

not show Appellant striking the victim.

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Appellant also argues that there is no evidence that she worked in

concert with the group that physically attacked the victim. She insists that

she was “one of many people who were over Complainant’s apartment for

what appeared to be a very out of control party.” Appellant’s brief at 17. In

her view, the evidence only established a mere association with the

attackers. With respect to her burglary conviction, Appellant avers that

there is no evidence that she entered the victim’s home with intent to

commit a crime. Instead, she posits that “she was simply along for the ride

with a crowd of people.” Id. at 20.

The Commonwealth responds that Appellant has ignored the standard

of review and attempted to recast the evidence in a light most favorable to

her. It contends that considering the evidence in a light most favorable to it,

the evidence was more than sufficient to establish the requisite elements of

the crimes challenged on appeal.

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

Pa.R.A.P. 1925(a) opinion authored by the distinguished Judge Donna M.

Woelpper, we find that she has ably discussed the issues and adopt her

reasoning as our own. Accordingly, we affirm on the basis of her well-

reasoned opinion.

Judgment of sentence affirmed.

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J-S54005-15

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/14/2015

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IN THE COURT OF' COMMON PLEAS
FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
TRIAL DIVISION - CRIMINAL SJ~CTION

COMMONWEALTH OF CP-51-CR-0010437-201 I
PENNSYLV ANlA
FILED
NOV t ·2 2014 SUPERIOR COURT
VS. : U 't NO. 2016 EDA 2014
Criminal AppeaI s rn
First Judicial Distr{ct of PA
CURTISl-lA HOLMES

OPfNION
WOELPPER, J. NOVEMBER 12, 2014

l. PROCEDURAL HlSTOR Y

On March 21, 2014, the defendants Kahshima Morgan ("Defendant Morgan') and

Curtisha Holmes ("Defendant Holmes"), collectively ('idefen-57. The jury reasonably concluded that by repeatedly kicking Polk's

bead Defendant I lolmes was attempting to cause serious bodily injury. See e.g., Commonwealth

1•. Glover, 449 A.2d 662, 665 (Pa. Super. Ct. 1982), affirmed, 458 A.2d 935 (Pa. 1983) (jury

reasonably could infer intent to cause serious bodily injury when defendant and others repeatedly

hit victim in head and kicked him).

The evidence established that Defendant Morgan also targeted Polk's head and face

during the assault. After the first fight, and after Polk yelled out her window to the crowd,

Defendant Morgan not only returned to Polk's apartment, but returned with a broomstick-like

object. N.T., M1w. 19, 2014 al 54. Defendant Morgun used that object to strike Polk's head and

face. Id. at 56. For the reasons above. the jury also reasonably concluded that there wus

sufficient evidence that Defendant Morgan hit Polk's head and face with the intent lo cause

serious bodily injury.

13. Simple Assault

This same evidence was sufficient to sustain the jury's guilty verdict on the simple

assault charges. A defendant is guilty of simple assault if she "intentionally> knowingly or

recklessly causes bodily injury lo another." 18 Pa.C.S. § 270 l (a)(l ). Here, Polk's testimony
, I

established that Defendant Holmes kicked her repeatedly and Defendant Morgan hit her with a

broomstick. Furthermore, the parties stipulated to Polk's injuries as a result of the assault,

including a dental fracture, a subconjunctival hemorrhage, bruising to her face, a black eye, and

sclera lesions. This evidence was sufficient to sustain the jury's verdict.

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C. Burglary

One is guilty of" burglary if she "enters a building or occupied structure ... with [the] intent

to commit a crime therein, unless the premises are at the time open lo the public or the actor is

licensed or privileged to enter." 18 Pa.C.S. § 3502(a). There was sufficient evidence at trial to

establish each of these elements. First, Polk testified that the defendants entered her apartment,

both while she was initially arguing with T, and again after Polk yelled something to the crowd

from her window. N.T., Mar. I 9, 2014 at pp. 4 I; 50-51. Second, there was sufficient evidence

that when the defendants entered Polk's apartment the second time, they were doing so for the

purpose of having a physical fight. The defendants and others came running up the stairs to the

apartment just minutes after Polk had screamed something at them from the upstairs window. Id.

at 50-51. They did not knock on the door or scream for Polk to come outside .. Instead,

Defendant Holmes physically broke in the locked door to Polk's apartment. Id at 51; 53. Then,

. repeatedly assaulting her. Id. at
after forcing Polk into her bedroom, Defendant Holmes began

65. Defendant Morgan had come prepared with a broomstick ··roomstick-like object, and

joined in the assault. Id. at 54; 56. Finally, Polk's apartment ipen to the public, nor

were the defendants licensed or privileged lo enter. Polk har .11Jy told everyone to get

out of her apartment during her argument with T. Id. at 42. ., the crowd finally left, Polk

locked the door to her home. Id. at 43. The defendants were able to enter only after Defendant

Holmes forcibly kicked open the door. Therefore, the evidence was sufficient to sustain the

jury's guilty verdict on the burglary charge.

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D. ConsP-iracy to Commit Aggravated AssauH and Burglary

There was also sufficient evidence to sustain the jury's verdict as to conspiracy to commit

both the aggravated assaults and burglary. A conviction for criminal conspiracy requires the

Commonwealth to prove that "( l) the defendant entered into an agreement to commit or aid in an

unlawful act with another person or persons, (2) with a shared criminal intent, and (J) an overt

act was done in furtherance of the conspiracy." See Commonwealth v. Smith, 69 A.Jd 259, 263

(Pa. Super. Ct. 20 l J ). The overt act need only be committed by one member of the conspiracy,

not necessarily the defendant. Id. Proof of an existing criminal partnership is often based on

circumstantial evidence, because a formal agreement can rarely be proven. id "[Al 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." Id (internal quotations omitted).

While there was no evidence at trial of a formal agreement bet ween the defendants to

commit the burglary and aggravated assault, there was sufficient circumstantial evidence of a

"criminal confederation." Minutes after Polk shouted out her apartment window, the defendants

(together and with others) charged up the stairs lo Polk's apartment door. N.T., Mar. 19, 2014) at

pp. 50-5 I. Finding it locked, Defendant Holmes kicked the door in with enough force lo break

the handle, thereby facilitating their entry and pursuit of Polk. Id. at 51; 53. Both defendants

then proceeded with others to chase Polk up to herbedroom where they physically assaulted her.

Id. at 55-56; 65. From this conduct the jury reasonably concluded that lhc defendants were both

active participants in the same criminal objective: to enter Polk's home (without privilege or

license to do so) intending to physically assault her.

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Finally. the evidence was sufficient 10 convict the defendants or criminal trespass. A

defendant is guilty of criminal trespass if "knowing that [she] is not licensed or privileged to do

so. [she) ... breaks into any building or occupied structure ... " l 8 Pa.C.S. § 3503(a)(ii). "Breaks

into" is defined lo include gaining "entry by force, breaking, intimidation, [or] unauthorized

opening of locks .. ." 18 Pa.C.S. § 3503(b). Both defendants knew that they were not permitted to

enter Polk's apartment. Polk told them to get out when they came up to her apartment during her

argument with T. N.T., Mar. 19, 2014 at p. 42. Additionally, following that incident, Polk

Jocked her front door. Id. at 43. H remained locked when the defendants came up a second time.

It was only after Defendant Holmes kicked open the door that the defendants and others were

able to enter. Although Defendant Morgan was not the individual who physically forced the

door open, as outlined above, she was part of a criminal conspiracy with Holmes at the time of

the forced entry. Therefore, the jury found her liable for theactions of her co-conspirator. See

Smith, 69 A.3d at 263 (overt act of conspiracy need only be committed by one with whom

defendant has conspired, not necessarily by the defendant him or herself). There was sufficient

evidence lo find both defendants guilty of criminal trespass.

IV. CONCLUSION

'.
For the foregoing reasons, the judgment of sentence should be. affirmed.

'lf~
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