J-S44019-16
NON -PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, 1 IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
DUNG THACH,
Appellant No. 3024 EDA 2014
Appeal from the Judgment of Sentence August 7, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No: CP- 51 -CR- 0004528 -2013
BEFORE: FORD ELLIOTT, P.J.E., STABILE, and MUSMANNO, JJ.
MEMORANDUM BY STABILE, J.: FILED NOVEMBER 08, 2016
Appellant, Dung Thach, appeals from the August 7, 2014 judgment of
sentence entered in the Court of Common Pleas of Philadelphia County ( "trial
court ") following his convictions of aggravated assault, criminal conspiracy,
terroristic threats, simple assault, and recklessly endangering another
person ( "REAP ").1 Appellant challenges the sufficiency of the evidence. Upon
review, we affirm.
The trial court summarized the facts as follows:
This case involved an incident that occurred on the
night of January 20, 2013, at a residence located at 4261
A Street in Philadelphia. The victim, Thuong Damh
[ "Damh "], a 60 year old man, testified at trial that he was
brought to 4621 A Street at 3 o'clock in the afternoon to
attend a social gathering. []Damh was picked up at his
1 18 Pa.C.S.A. §§ 2702(a)(1), 903, 2706, 2701(a)(1), and 2705,
respectively.
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home on the 4900 block of Old York Road in Philadelphia
in a car by Thuong Thach [ "Thuong "], the son of his friend
Khuol Thach [ "Khuol "], and Thuong's girlfriend. A man
named Savan also got into the car at the time to be
driven to 4621 A Street.
Upon arriving at 4621 A Street, []Damh identified
four others in attendance at the party; Thai, Ut, and the
Appellant. []Damh was at 4621 A Street for about nine
hours until around midnight when the incident occurred.
At midnight, []Damh was sitting on a chair in the living
room of the residence. Thai was sitting on a couch to
[]Damh's right. The Appellant was standing behind
[]Damh. Thuong was standing in front of []Damh. At
that time, Thuong began to threaten []Damh, asking him
why he did not allow Thuong to visit his house the
previous week, and that he would kill []Damh if he did not
tell him. When Thuong threatened him, []Damh stood up
from the chair where he was sitting, at which time Thai
kicked him in the ribs and stood up and punched him in
the left eye. []Damh was then hit in the back of the head
by the Appellant which fractured his skull. After the blow
to his head, []Damh fell to the ground, at which point,
Thai, Thuong, and the Appellant continued to hit and kick
him, after which, []Damh passed out. After []Damh
regained consciousness, Savan assisted him in getting
home. When []Damh arrived at his home, his injuries
were extensive. He was completely numb, he was
bleeding from the head and eyes, and his mouth was
swollen. []Damh believed that he would die that night.
His wife called an ambulance to take him to the hospital.
Upon arriving at the hospital, []Damh had surgery on his
head and was placed into an unconscious state for a
week. Police detectives arrived at the hospital and spoke
with Mrs. Damh, at which point she told them everything
that she knew as well as the fact that [Damh] had left the
house wearing a knit cap but returned without it. After
speaking with Mrs. Damh, Detective Hughes obtained a
warrant to search the house where the incident occurred.
At that time, Detective Hughes recovered a knit cap with
[]Damh's name written in it in the back of the refrigerator
of the house.
Trial Court Opinion, 8/26/2015, at 2 -3 (internal citations omitted).
The trial court summarized the procedural history as follows:
On January 29, 2013, police arrested Appellant,[] for
Attempted Murder, Aggravated Assault, Criminal
Conspiracy, Terroristic Threats, Simple Assault, and
[REAP]. On July 10, 2014, Appellant waived his right to a
jury trial and proceeded to a bench trial before th[e trial
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c]ourt. On that date, the [trial c]ourt found Appellant
guilty of [a]ggravated [a]ssault (F -1), [c]riminal
[c]onspiracy (F -1), [t]erroristic [t]hreats (M -1), [s]imple
Assault (M -2), and [REAP] (M -2).
On August 7, 2014, the [trial c]ourt sentenced
Appellant to four to eight years of incarceration on the
charge of [a]ggravated [a]ssault and two to four years of
incarceration on the charge of [c]riminal [c]onspiracy to
run consecutively for a cumulative sentence of six to
twelve years of incarceration. The [s]imple [a]ssault
charge merged with [a]ggravated [a]ssault and the
Appellant was sentenced to no further penalties on the
charges of [t]erroristic [t]hreats and [REAP]. On August
13, 2014, Appellant filed [p]ost -[s]entence [m]otions
which were denied by the [trial court] without a hearing on
August 20, 2014.
Appellant filed this timely appeal on August 29,
2014. On November 4, 2014, the [trial court] ordered
Appellant to file a Pa.R.A.P. 1925(b) [s]tatement of
[e]rrors [c]omplained of on [a]ppeal within 21 days.
Appellant filed a Pa.R.A.P. 1925(b) [s]tatement of [e]rrors
[c]omplained of on [a]ppeal on November 24, 2014 with a
request to file a [s]upplement[al] 1925(b) [s]tatement
when all the [n]otes of [t]estimony became available. All
the [n]otes of [t]estimony became available in April 2015
and Appellant did not file a [s]upplemental 1925(b)
[s]tatement.
Id. at 1-2.
Appellant raises a sole issue on review.
Was not the evidence insufficient to support the conviction
of [a]ggravated [a]ssault, [c]riminal [c]onspiracy, [s]imple
[a]ssault, [t]erroristic [t]hreats and [REAP] where the
complainant failed to see the punch that Appellant
allegedly thr[e]w or any act of conspiracy between
Appellant and assailants?
Appellant's Brief at 3.
This Court's standard of review for sufficiency of the evidence is well
established.
As a general matter, our standard of review of sufficiency claims
requires that we evaluate the record in the light most favorable
to the verdict winner giving the prosecution the benefit of all
reasonable inferences to be drawn from the evidence. Evidence
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will be deemed sufficient to support the verdict when it
establishes each material element of the crime charged and the
commission thereof by the accused, beyond a reasonable doubt.
Nevertheless, the Commonwealth need not establish guilt to a
mathematical certainty. [T]he facts and circumstances
established by the Commonwealth need not be absolutely
incompatible with the defendant's innocence. Any doubt about
the defendant's guilt is to be resolved by the fact finder unless
the evidence is so weak and inconclusive that, as a matter of
law, no probability of fact can be drawn from the combined
circumstances.
Commonwealth v. Mauz, 122 A.3d 1039, 1040 -41 (Pa. Super. 2015)
(quoting Commonwealth v. Rahman, 75 A.3d 497, 500 -501 (Pa. Super.
2013)). However, in order to address a challenge to the sufficiency of the
evidence, it must be preserved for appeal. See Commonwealth v. Tyack,
128 A.3d 254, 260 (Pa. Super. 2015).
If [a]ppellant wants to preserve a claim that the evidence
was insufficient, then the 1925(b) statement needs to
specify the element or elements upon which the evidence
was insufficient. This Court can then analyze the elements
or elements on appeal. [Where a] 1925(b) statement []
does not specify the allegedly unproven elements[,] . . .
the sufficiency issue is waived [on appeal].
Id. (quoting Commonwealth v. Williams, 959 A.2d 1252, 1257 (Pa.
Super. 2008) (quoting Commonwealth v. Flores, 921 A.2d 517, 522 -523
(Pa. Super. 2007))).
In the matter sub judice, Appellant's 1925(b) statement failed to
specify the element or elements upon which the evidence was insufficient.
Appellant's statement asserts the following boilerplate language
[t]he trial court erred when it found that the evidence was
sufficient to support the conviction of [a]ggravated
[a]ssault, [c]riminal [c]onspiracy, [t]erroristic [t]hreats,
[s]imple [a]ssault, [REAP]. The evidence failed to establish
that [Appellant] was guilty beyond a reasonable doubt of
any of the above stated charges.
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Rule 1925(b) Statement, 11/24/2014, at ¶ 3(a). Appellant's failure to
specify the element or elements upon which evidence was insufficient
extends to each individual offense he challenges on appeal. In his concise
statement, Appellant requested the ability to amend his concise statement
upon the receipt of the notes of testimony; however, Appellant never
attempted to amend his statement upon his receipt of the notes of
testimony. Accordingly, we conclude Appellant did not preserve his claims
adequately for appellate review and are waived. See Tyack, 128 A.3d at
260.
Nonetheless, despite Appellant's failure to specify the elements of each
crime that he believes the evidence was insufficient to support, our review of
Appellant's brief indicates that his challenge to the sufficiency of all offenses
is based upon his single contention that the Commonwealth did not prove
beyond a reasonable doubt that he struck the victim in the back of the head.
Appellant contends the victim conceded he was unable to see the punch that
struck him in the back of the head, but was certain that Appellant was the
individual that struck him. To the extent this argument may address some
element in each of the crimes for which Appellant was convicted, we find
that Appellant's claim lacks merit.
As noted by the trial court, the evidence established that Appellant
was standing behind the victim when the victim was struck on the back of
his head causing a skull fracture. If Appellant was the only person standing
behind the victim when he was struck from behind, especially given the
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circumstances under which this attack occurred, a reasonable inference can
be drawn that it was Appellant who struck the victim from behind.
Appellant's actions immediately thereafter, namely, joining his cohorts in
hitting and kicking the victim after he fell to ground, corroborate the victim's
identification of Appellant as the perpetrator of the skull fracture. Viewing
the evidence in the light most favorable to the prosecution as verdict winner
and giving the prosecution the benefit of all reasonable inferences to be
drawn from the evidence, we conclude, to the extent we may address
Appellant's claim that the evidence was insufficient to prove that he struck
the victim from behind, to have no merit.
Judgment of sentence affirmed.
Judgment Entered.
J:seph Seletyn,
D.
Prothonotary
Date: 11/8/2016
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