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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
KAHSHIMA MORGAN,
Appellant No. 1869 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-0010436-2011
BEFORE: BOWES, PANELLA, AND FITZGERALD, *JJ.
MEMORANDUM BY BOWES, J.: FILED JANUARY 05, 2016
Kashima Morgan appeals from the June 4, 2014 judgment of sentence
of eleven and one-half to twenty-three months incarceration, followed by
five years of reporting probation, imposed after she and co-defendant
Curtisha Holmes were convicted of aggravated assault, burglary, conspiracy
to commit aggravated assault and burglary, criminal trespass, and simple
assault. After careful review, we affirm.
The facts giving rise to Appellant’s convictions are summarized from
the transcript of the February 28, 2014 jury trial. On June 20, 2011,
Complainant Tasha Polk went to Atlantic City to celebrate her birthday with
her friend, Cocoa. N.T., 3/19/14, at 37. She returned to her apartment
building at 2202 North 20th Street the next morning at approximately 1:30
*
Former Justice specially assigned to the Superior Court.
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a.m. Id. at 38. Upon arrival, she encountered her neighbor, Nicole
Richardson, sitting with Appellant on the steps of the building adjacent to
Ms. Polk’s apartment. Id. at 38-39. Ms. Polk, Ms. Richardson, and Ms.
Polk’s friend “T” accompanied Ms. Polk to her apartment. Id. at 39-40. Ms.
Polk and T began arguing about Ms. Polk going to Atlantic City in lieu of a
party with T, as they originally planned. Id. at 40. As their voices rose,
other individuals from the neighborhood entered Ms. Polk’s apartment. Id.
at 41. Appellant entered, together with Holmes and a woman known to Ms.
Polk as Britney. Id.
Ms. Polk asked the crowd to leave her apartment. Britney replied, “F--
- no,” and began striking Ms. Polk in the face several times causing her to
fall onto the couch. Id. at 42-43. Someone used a cell phone to videotape
Holmes hitting Ms. Polk. Id. at 43-44. After the fight, everyone left the
apartment except for Ms. Richardson and Ms. Polk. Id. at 43. Ms. Polk
locked the door and then yelled out the window in anger. Id. at 43, 50.
Just minutes later, Appellant, Holmes, Britney, and fifteen to twenty other
people returned to Ms. Polk’s apartment. Id. at 50-51. Holmes kicked in
the door and entered with Appellant, who was brandishing a broomstick-like
object. Id. at 51, 54.
Ms. Polk ran upstairs to her bedroom with the crowd in pursuit. Id. at
55. Appellant, Holmes, Britney, together with the girls that Ms. Polk
recognized from across the street, repeatedly kicked Ms. Polk in the head as
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Holmes threatened to kill her. Id. at 55-56, 65. Appellant struck her in the
face repeatedly with the broomstick during this attack. Id. at 56. Ms. Polk
eventually lost consciousness after approximately forty blows from the
broomstick, hands, and feet. Id. at 57. When she regained consciousness,
she discovered the contents of her purse were missing, including her debit
card, social security card, cash, makeup, and identification. Id. at 63. Ms.
Polk also observed damage to the walls in her living room. Id. at 64. Ms.
Polk called the police but she stated that they did not respond. Id. at 58.
Philadelphia Police Officer Eyleen Archie testified that, on June 21,
2011, she received several radio calls about an assault at 2202 North 20th
Street. N.T., 3/21/14 at 7, 14, 16. The first occurred at 1:41 a.m. and it
was reported that a person had a knife. Officer Archie proceeded to that
location, patrolled the area for several minutes, but did not see anyone in
the vicinity. Id. at 17-18. The officer returned after receiving another call
at 3:26 a.m., but still did not observe any altercation or see Ms. Polk. Id. at
18. She knocked on the door to Ms. Polk’s apartment building but there was
no answer. Id. at 19. Finally, Officer Archie responded to a third call at
5:10 a.m., but there was still no one in the area and no reply to her
knocking. Id.
Ms. Polk stayed at Ms. Richardson’s apartment located in the adjacent
building until Ms. Polk’s mother arrived and transported her to Temple
University Hospital. N.T., 3/19/14, at 57-58. Ms. Polk informed the treating
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physician that she had been beaten around the head. N.T., 3/21/14, at 23.
She was diagnosed with a dental fracture, a subconjunctival hemorrhage,
bruising to her face, a black eye, and sclera lesions. Id. at 23-24. Ms. Polk
was prescribed 600 mg of Motrin every six hours. Id. at 24.
Detective Anthony Anderson interviewed Ms. Polk at Central Detectives
on June 22, 2011. N.T., 3/19/14, at 178. Ms. Polk named Appellant, as well
as Holmes, Britney, Tiffany, and a girl named Jessica, as people involved in
the burglary and assault. Id. at 178-179. Ms. Polk accompanied Detective
Anderson and pointed out where Appellant and Holmes lived. Id. at 179.
Detective Anderson compiled a photographic array from which Ms. Polk
positively identified Appellant and Holmes as having been involved in the
assault. Id. at 180. Detective Anderson was unable to locate the other
attackers because Ms. Polk did not know their last names or addresses. Id.
A search warrant executed on both Appellant’s and Holmes’s residences did
not yield Ms. Polk’s belongings. Id. at 181.
The jury found Appellant guilty of all charges and the trial court
sentenced her to eleven and one-half to twenty-three months of
incarceration, followed by five years of reporting probation. Appellant timely
appealed, and complied with the court’s order to file a Pa.R.A.P. 1925(b)
concise statement of errors complained of on appeal. She presents the
following sufficiency challenges for this court’s consideration:
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1. Whether the evidence presented at trial was sufficient to
convict Appellant of Aggravated Assault, Burglary, Conspiracy
to Commit Aggravated Assault, Criminal Trespass, Simple
Assault, and Conspiracy to Commit Burglary.
Appellant’s brief at 4.1
In conducting a sufficiency of the evidence review, we examine all of
the evidence admitted, even improperly admitted evidence.
Commonwealth v. Watley, 81 A.3d 108, 113 (Pa.Super. 2013) (en banc).
We consider the evidence in the light most favorable to the verdict winner,
herein the Commonwealth, drawing all possible inferences from the evidence
in favor of the Commonwealth. 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.
The evidence need not preclude the possibility of innocence entirely.
The fact finder is free to believe, in whole or in part, whatever evidence it
chooses. Id. Additionally, the Commonwealth may prove its case by
circumstantial evidence alone. It is only when “the evidence is so weak and
inconclusive that, as a matter of law, no probability of fact can be drawn
from the combined circumstances,” that the defendant is entitled to relief.
Id. This Court is not permitted “to re-weigh the evidence and substitute our
judgment for that of the fact finder.” Id.
____________________________________________
1
Appellant abandoned any challenge to the sufficiency of her conviction for
criminal trespass and simple assault by failing to advance or argue these
claims in her brief to this Court.
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Appellant first challenges her aggravated assault conviction. She
argues that there was insufficient evidence that Ms. Polk sustained serious
bodily injury or that Appellant specifically intended to cause such injury.
Furthermore, according to Appellant, contradictory testimony made it
doubtful that she, one person in the large group of attackers, actually
caused Ms. Polk’s injuries. In support of that position, Appellant directs our
attention to Commonwealth v. Dohner, 441 A.2d 1263, 1270 (Pa.Super.
1982). In Dohner, a victim was attacked by a group of people. Absent
evidence that Dohner himself actually attacked the victim or caused him any
injury, the court held that the evidence was insufficient to convict Dohner of
aggravated assault.
In that same vein, Appellant maintains that Ms. Polk did not sustain
serious bodily injury, and furthermore, that it is unclear whether she caused
any injuries to Ms. Polk’s head and face. Although Appellant concedes that
she need not actually cause serious bodily injury in order to be convicted of
aggravated assault, she argues that she lacked the intent to support
conviction of an attempt to cause serious bodily injury for purposes of that
offense. In support of her position, Appellant cites Commonwealth v.
Alexander, 383 A.2d 887, 889 (Pa.Super. 1978). In Alexander, the
attacker struck his victim once in the face causing injury. The court held
that one isolated punch that did not cause serious bodily injury, without
more, was insufficient to constitute aggravated assault. The court
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enumerated a number of factors that, if present, could demonstrate intent to
cause serious bodily injury. These factors included (i) whether the attacker
was disproportionately larger than the victim; (ii) whether the attacker was
restrained from further escalating his attack; (iii) whether there was a
weapon present; and (iv) whether statements made before or after the
attack indicated intent to do further harm. Id. at 889. Appellant argues
that the circumstances herein did not show intent to cause serious bodily
harm because there was no evidence that she was disproportionately larger
than the victim or that she made statements indicating intent to do further
harm to Ms. Polk.
Preliminarily, Appellant’s contention that a contradiction in testimony
invalidates the sufficiency of other evidence is unavailing. “A mere conflict
in testimony does not render the evidence insufficient.” Commonwealth v.
Spotz, 716 A.2d 580, 585 (Pa. 1988). As the Commonwealth correctly
notes, Appellant’s challenge is actually to the weight of the evidence, not to
its sufficiency. Determining which witness’s testimony is most credible is the
duty of the fact finder, and this Court is not at liberty to re-weigh the
evidence and substitute its judgment for that of the fact finder. Id.
Furthermore, Appellant’s reliance on Dohner is misplaced. In Dohner
as herein, the defendant was part of a large group that attacked the victim.
However, in that case there was no evidence that Dohner attacked the
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victim. In the instant case, both the victim and Nicole Richardson testified
that Appellant struck the victim with her fists and a broomstick.
We find the evidence sufficient to sustain a finding of an attempt to
cause serious bodily injury. A person is guilty of aggravated assault if she
“attempts to cause serious bodily injury 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. § 2702(a)(1).
Serious bodily injury is defined as “[b]odily 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. § 2301. For aggravated assault purposes, an “attempt”
is found where an accused who possesses the required, specific intent acts in
a manner which constitutes a substantial step toward perpetrating a serious
bodily injury upon another. Commonwealth v. Fortune, 68 A.3d 980
(Pa.Super. 2013). Such intent is ordinarily proven through circumstantial
evidence and inferred from acts, conduct or attendant circumstances.
Appellant’s reliance upon the Alexander factors is misplaced as their
application demonstrates the requisite intent to sustain Appellant’s
aggravated assault conviction. Appellant and her co-conspirators delivered
approximately forty blows consisting of punches, kicks, and strikes with a
broom handle to Ms. Polk. Appellant targeted Ms. Polk’s head and face with
the broomstick. See Commonwealth v. Nichols, 692 A.2d 181 (Pa.Super.
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1996) (stating that a baseball bat, when swung at the head can become a
deadly weapon). The assault only ended after Ms. Polk lost consciousness.
Although the record did not show that Appellant was disproportionately
larger than the victim, the fact that the victim was attacked by a group
supplies the disproportionate force factor. See Commonwealth v. Glover,
449 A.2d 662, 665 (Pa.Super. 1982) (acknowledging that the jury could
have inferred the requisite intent from the disproportionate strength of three
men inflicting repeated blows). The jury could reasonably infer from the
circumstances herein that Appellant attempted to cause serious bodily injury
for purposes of 18 Pa.C.S. § 2702, and thus the evidence is sufficient to
support the aggravated assault conviction.
Appellant next challenges the sufficiency of the evidence sustaining
her burglary conviction. A person commits the offense of burglary if, with
the intent to commit a crime therein, the person “enters a building or
occupied structure, or separately secured or occupied portion thereof that is
adapted for overnight accommodations in which at the time of the offense
any person is present.” 18 Pa.C.S. § 3502(a). Appellant argues that she
cannot be convicted of burglary because there was insufficient evidence that
she entered Ms. Polk’s apartment with the intent to commit a crime.
We find this argument unavailing. Intent can be inferred from the
circumstances surrounding the burglary. Commonwealth v.
Williamowski, 633 A.2d 141, 144 (Pa.Super. 1993). After complying with
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Ms. Polk’s orders to leave her apartment, Appellant and her cohorts returned
and broke down the door to re-gain entrance to the apartment. After their
forcible entry, Appellant and her co-conspirators again repeatedly assaulted
and threatened Ms. Polk. The evidence is more than sufficient to prove that
Appellant entered the apartment with the intent to commit a crime.
Finally, Appellant claims that there was insufficient evidence of
conspiracy. She argues that there was no proof of an agreement between
the attackers or that she acted in concert with them, in contrast to the
scenarios in Commonwealth v. French, 578 A.2d 1292 (Pa.Super. 1990)
and Commonwealth v. Poland, 26 A.3d 518 (Pa.Super. 2011). In those
cases, evidence that groups initiated attacks on individuals and then fled as
a group was sufficient to sustain convictions for conspiracy to commit
aggravated assault. Appellant characterizes herself as a “mere associate” of
a large group of attackers and maintains that she was just along for the ride
as in Commonwealth v. Kennedy, 453 A.2d 927, 930 (Pa.Super. 1982).
In Kennedy, we overturned a conspiracy to commit burglary conviction
arising out of a brawl that Kennedy joined spontaneously, rather than as
part of a common design. We held that the Commonwealth failed to show
agreement and established only “mere association” between the defendant
and his alleged conspirator, rather than agreement. Id. at 936.
“A person is guilty of conspiracy with another person or persons to
commit a crime if with the intent of promoting or facilitating its commission
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he: (1) agrees with such other person or persons that they or one or more
of them will engage in conduct which constitutes such crime or an attempt
or solicitation to commit such crime; or (2) agrees to aid such other person
or persons in the planning or commission of such crime or of an attempt or
solicitation to commit such crime.” 18 Pa.C.S. § 903. A criminal conspiracy
conviction requires that a defendant (1) enter into an agreement to commit
or aid in an unlawful act with another person or persons, (2) with shared
criminal intent, and (3) an overt act was done in furtherance of the
conspiracy. Commonwealth v. Smith, 69 A.3d 259,263 (Pa.Super. 2013).
An agreement can be inferred from a variety of circumstances
including, but not limited to, the relation between the parties,
knowledge of and participation in the crime, and the
circumstances and conduct of the parties surrounding the
criminal episode. These factors may coalesce to establish a
conspiratorial agreement beyond a reasonable doubt where one
factor alone might fail.
Commonwealth v. Jones, 874 A.2d 108, 122-23 (Pa.Super. 2005).
We find Kennedy to be factually inapposite to the instant case.
Kennedy joined a fight that had already begun. There was no evidence of a
common design or scheme between the parties and Kennedy had no
knowledge of the fight before he witnessed it happening. The instant case is
far different. Minutes after being expelled from the apartment, Appellant
and her co-conspirator Holmes forcibly broke into Ms. Polk’s home with a
shared criminal purpose: to assault Ms. Polk. Holmes kicked down Ms. Polk’s
apartment door and Appellant entered armed with a weapon. Together they
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chased Ms. Polk up the stairs and beat her. This concerted action is enough
to infer an agreement between the two women and to sustain Appellant’s
conspiracy convictions for both burglary and aggravated assault. Thus, after
a thorough review of the record, we find no merit in Appellant’s contentions
and no relief is due.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/5/2016
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