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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
KEVIN FORD :
:
Appellant : No. 517 EDA 2018
Appeal from the Judgment of Sentence February 12, 2018
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0005006-2016
BEFORE: GANTMAN, P.J.E., STABILE, J., and STEVENS*, P.J.E.
MEMORANDUM BY GANTMAN, P.J.E.: FILED AUGUST 19, 2019
Appellant, Kevin Ford, appeals from the judgment of sentence entered
in the Philadelphia County Court of Common Pleas, following his jury trial
convictions for aggravated assault, conspiracy to commit aggravated assault,
simple assault, and conspiracy to commit simple assault.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. Procedurally, on February 13, 2018, Appellant’s trial counsel
filed a motion to withdraw, and Appellant filed a pro se notice of appeal.
Following a hearing on February 27, 2018, the court permitted trial counsel to
withdraw. The court appointed appellate counsel on February 28, 2018. On
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1 18 Pa.C.S.A. §§ 2702(a), 903 (section 2702 related), 2701(a), and 903
(section 2701 related), respectively.
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* Former Justice specially assigned to the Superior Court.
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July 12, 2018, the court ordered Appellant to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b).2 Appellant complied
on July 22, 2018.
Appellant raises three issues for our review:
WAS THE EVIDENCE INSUFFICIENT TO SUSTAIN THE
GUILTY VERDICT FOR AGGRAVATED ASSAULT (F2) WITH A
DEADLY WEAPON, AS THERE WAS NO EVIDENCE THAT
APPELLANT INFLICTED OR ATTEMPTED TO INFLICT ANY
BODILY INJURY TO [VICTIM] WITH A DEADLY WEAPON
(FIREARM), AND AT MOST WAS SEEN TUGGING ON
[VICTIM]’S PANTS?
WAS THE EVIDENCE INSUFFICIENT TO SUSTAIN THE
GUILTY VERDICT FOR CONSPIRACY TO COMMIT
AGGRAVATED ASSAULT (F2) WITH A DEADLY WEAPON, AS
THERE WAS NO EVIDENCE THAT APPELLANT ENTERED INTO
ANY AGREEMENT WITH ANOTHER TO COMMIT BODILY
INJURY TO [VICTIM], WITH A DEADLY WEAPON (FIREARM)?
DID THE TRIAL COURT ERR BY ALLOWING INTO EVIDENCE
THE INADMISSIBLE HEARSAY STATEMENT MADE BY
[VICTIM] TO [OFFICER ST.] ONGE, AS [VICTIM] WAS NOT
UNDER THE STRESS OF EXCITEMENT FROM ANY
STARTLING EVENT AT THE TIME THE STATEMENT WAS
ALLEGEDLY MADE TO [OFFICER ST.] ONGE, AND
THEREFORE DID NOT FALL UNDER THE EXCITED
UTTERANCE EXCEPTION?
(Appellant’s Brief at 7).
The law on conspiracy provides:
The general rule of law pertaining to the culpability of
conspirators is that each individual member of the
conspiracy is criminally responsible for the acts of his co-
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2The court mistakenly sent the Rule 1925(b) order to trial counsel on July 5,
2018. The court later reissued the Rule 1925(b) order to appellate counsel
on July 12, 2018.
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conspirators committed in furtherance of the conspiracy.
The co-conspirator rule assigns legal culpability equally to
all members of the conspiracy. All co-conspirators are
responsible for actions undertaken in furtherance of the
conspiracy regardless of their individual knowledge of such
actions and regardless of which member of the conspiracy
undertook the action.
Commonwealth v. Galindes, 786 A.2d 1004, 1011 (Pa.Super. 2001), appeal
denied, 569 Pa. 691, 803 A.2d 733 (2002) (holding it was unnecessary to
determine which of two defendants fired gun; fact that one defendant shot at
victim renders other defendant equally criminally responsible).
After a thorough review of the record, the briefs of the parties, the
applicable law, and the well-reasoned opinion of the Honorable Anne Marie B.
Coyle, 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 December 3, 2018, at 5-11) (finding: (3)
Officer St. Onge’s testimony regarding Victim’s post-attack statement satisfied
excited utterance exception to rule against hearsay; Victim blurted out
statement to Officer St. Onge while on way to hospital for emergency
treatment just after being severely beaten; Victim made statement within
approximately twenty minutes of attack, while intoxicated and still bleeding
from attack wounds; Victim made statement while still under stress of
excitement stemming from attack; (1) police observed Appellant and his
cohort acting together, demonstrating collaborative effort to cause Victim
bodily injury; Officer Winscow credibly testified he saw Victim on ground as
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Appellant’s cohort repeatedly struck Victim in face with handgun while
Appellant forcibly removed Victim’s pants; Victim suffered multiple injuries,
including cuts, bruises, profuse facial bleeding, and eye swelling; both
assailants took advantage of Victim, who was in extremely vulnerable,
inebriated state; police later recovered handgun Appellant’s cohort used to
strike Victim from house where both assailants had hidden themselves after
attack; analysis deemed handgun to be operable firearm, qualifying as deadly
weapon; that Appellant’s cohort wielded handgun during attack does not
absolve Appellant of guilt for use of deadly weapon during attack; (2) direct
and circumstantial eyewitness testimony from police officers, investigators,
and Victim, along with physical evidence in form of attack weapon, medical
records, and photographs, constituted sufficient evidence to convict Appellant
of conspiracy to commit aggravated assault; sufficient evidence supported
jury’s determination Appellant and his cohort entered into agreement to
assault Victim, and each assailant actively assisted in attack of Victim;
Appellant assisted in attack by removing pants of incapacitated Victim, while
cohort struck Victim in face with deadly weapon; Victim suffered significant
injuries as result of attack). Accordingly, we affirm on the basis of the trial
court opinion.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/19/19
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