Commonwealth v. Smith

• Decision Date: 01 July 2013
• Citation: 69 A.3d 259,2013 PA Super 100
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Bruce SMITH, Appellant.
• Court: Pennsylvania Superior Court

69 A.3d 259

2013 PA Super 100

COMMONWEALTH of Pennsylvania, Appellee

v.Bruce SMITH, Appellant.

Superior Court of Pennsylvania.

Argued Oct. 31, 2012.

Filed May 1, 2013.

Reargument Denied July 1, 2013.

Suzanne M. Swan, Public Defender and John Ciroli, Jr., Public Defender, Pittsburgh, for appellant.

Michael W. Streily, Deputy District Attorney and Sandra Preuhs, Assistant District Attorney, Pittsburgh, for Commonwealth, appellee.

BEFORE: MUSMANNO, J., WECHT, J., and COLVILLE, J.^*

OPINION BY WECHT, J.:

Bruce Smith (“Appellant”) appeals from the September 27, 2011 judgment of sentence. After a jury convicted Appellant of criminal conspiracy,¹ fleeing or attempting to elude a police officer,² three counts of recklessly endangering another person (“REAP”),³ and accident involving damage to unattended vehicle,⁴,⁵ the trial court sentenced Appellant to an aggregate sentence of seventeen to thirty-four years' incarceration. For the reasons that follow, we vacate the judgment of sentence, and we remand for a new sentencing hearing.

Appellant's cousin, Melvin Johnson, was murdered shortly before the events that ultimately led to Appellant's arrest in this case. Appellant, along with brothers William and Daniel Hopkins, believed that Johnson's shooter was a man named Sir John Withrow (“Withrow”).

On April 3, 2010, while drinking, Appellant, the Hopkins brothers, and someone known only as “Little Hodge,” became quite upset about the murder. Appellant eventually told the police that the more that the quartet talked about the murder, the more their anger escalated. The group left the house where they were drinking and went to a bar, where they continued to drink for another forty-five minutes. They left the bar and piled into a white SUV. William Hopkins was driving, Appellant was in the passenger seat, and the other two men were in the back seat. They drove to the West End section of Pittsburgh, to a location where either William Hopkins or Little Hodge claimed to have seen Withrow. Eventually, William Hopkins claimed to see Withrow sitting in a car in front of his residence. They pulled around a corner, and the Hopkins brothers exited the SUV.

Patricia Kowaluk was walking down the street in the West End with Withrow, her son, and her son's cousin. Gunshots rang out. Ms. Kowaluk was shot in the lower back. She was unable to see who fired the shots. However, a nearby resident, Benjamin Obusek, heard the shots and grabbed his own weapon. Obusek fired at the gunmen, hitting one of them in the arm.

Appellant was still in the SUV when the Hopkins brothers returned. William Hopkins was shot in the arm. Once everyone got back into the SUV, they hastened from the scene. The crew met up with another individual in a different part of the West End. This individual picked up William Hopkins and Little Hodge, and proceeded to a local hospital.

Appellant drove the SUV away from the area. A police bulletin was issued for the white SUV. The police spotted the SUV and attempted to stop the vehicle. However, Appellant did not stop. Instead, he drove up to the Mount Washington area of Pittsburgh, where he struck two vehicles. The police continued to chase the SUV until Appellant struck a police car and came to a stop. Blood samples from inside the SUV and at the scene of the shooting were submitted for DNA testing. The samples matched William Hopkins.

Based upon this evidence, Appellant was convicted of the above-delineated offenses. At all relevant times, Appellant was represented by an appointed lawyer from the Allegheny County Public Defender's Office. On September 27, 2011, before being sentenced, Appellant attempted to complain about that attorney. However, before Appellant could explain his dissatisfaction with his lawyer, the trial court interrupted Appellant and told Appellant that he should “suck it up.” Notes of Testimony (“N.T.”), 9/27/2011, at 2. The court further instructed Appellant to “[t]ake it up to the Superior Court. Tell them about your rights. Don't tell me. I'm not interested.” Id. at 2–3. The trial court then proceeded to sentence Appellant to seventeen to thirty-four years in prison. The trial court also sentenced Appellant to pay $1,000 in restitution.

On October 27, 2011, Appellant filed a notice of appeal. The following day, pursuant to Pa.R.A.P. 1925(b), the trial court directed Appellant to file a concise statement of errors complained of on appeal. Appellant timely complied. On March 3, 2012, the trial court issued an opinion pursuant to Pa.R.A.P. 1925(a).

Appellant now raises four issues for our consideration:

1. Was [Appellant's] Pennsylvania and United States constitutional right to counsel [ ] violated when, for sentencing on September 27, 2011, the court compelled [Appellant] to use Attorney Dugan over his objection?

2. Was the imposition of the sentence of $1,000.00 restitution illegal where the court awarded restitution in a speculative amount not supported by the record, did not consider [Appellant's] ability to pay restitution and failed to direct how the restitution should be paid?

3. Did sufficient evidence exist to find [Appellant] guilty of conspiracy to commit aggravated assault?

4. Was sufficient evidence presented on the charge for damage to vehicle?

Brief for Appellant at 6.

We begin with Appellant's sufficiency claims because, if successful, they would moot the sentencing claims. See Commonwealth v. Yanoff, 456 Pa.Super. 222, 690 A.2d 260, 263 (1997) (the proper remedy for a successful sufficiency claim is discharge, not a new trial). “Our well-settled standard of review when evaluating a challenge to the sufficiency of the evidence mandates that we assess the evidence and all reasonable inferences drawn therefrom in the light most favorable to the verdict-winner.” Commonwealth v. Whitacre, 878 A.2d 96, 99 (Pa.Super.2005). We must determine whether there is sufficient evidence to enable the fact-finder to have found every element of the crime beyond a reasonable doubt. Commonwealth v. Lambert, 795 A.2d 1010, 1014–15 (Pa.Super.2002) (internal citations and quotation marks omitted).

In applying the above test, we may not weigh the evidence and substitute our judgment for that of the fact-finder. In addition, we note that the facts and circumstances established by the Commonwealth need not preclude every possibility of innocence. Any doubts regarding a defendant's guilt may be resolved by the fact-finder unless the evidence is so weak and inconclusive that as a matter of law no probability of fact may be drawn from the combined circumstances. The Commonwealth may sustain its burden of proving every element of the crime beyond a reasonable doubt by means of wholly circumstantial evidence. Moreover, in applying the above test, the entire record must be evaluated and all evidence actually received must be considered. Finally, the trier of fact while passing upon the credibility of witnesses and the weight of the evidence produced, is free to believe all, part or none of the evidence.

Id.

First, Appellant argues that the evidence was insufficient to establish his guilt of criminal conspiracy beyond a reasonable doubt. Appellant maintains that no agreement existed between himself and the Hopkins brothers to assault Withrow. Appellant argues that he was merely a passenger in a car, nothing more. Thus, Appellant contends that he was merely present at the scene of a crime, and that the evidence did not demonstrate a shared intent to commit the crime. Appellant claims that no evidence was presented demonstrating that he knew, or agreed to, what the Hopkins intended to do when they left the car. In Appellant's view, to find the existence of an agreement in this case would constitute pure conjecture. “To infer Appellant's complicity on the basis of his companionship with the Hopkins brothers and riding in their car, would be tantamount to determining guilt by association.” Brief for Appellant at 31. We disagree.

To sustain a conviction for criminal conspiracy, the Commonwealth must establish, beyond a reasonable doubt, that: (1) 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 (3) an overt act was done in furtherance of the conspiracy. Commonwealth v. Hennigan, 753 A.2d 245, 253 (Pa.Super.2000). “This overt act need not be committed by the defendant; it need only be committed by a co-conspirator.” Id.

With respect to the agreement element of conspiracy, we have explained:

The essence of a criminal conspiracy is a common understanding, no matter how it came into being, that a particular criminal objective be accomplished. Therefore, a conviction for conspiracy requires proof of the existence of a shared criminal intent. An explicit or formal agreement to commit crimes can seldom, if ever, be proved and it need not be, for proof of a criminal partnership is almost invariably extracted from the circumstances that attend its activities. Thus, a 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. The conduct of the parties and the circumstances surrounding their conduct may create a web of evidence linking the accused to the alleged conspiracy beyond a reasonable doubt. Even if the conspirator did not act as a principal in committing the underlying crime, he is still criminally liable for the actions of his co-conspirators in furtherance of the conspiracy.

Commonwealth v. Johnson, 719 A.2d 778, 784–85 (Pa.Super.1998) ( en banc ).

Viewed in the light most favorable to the Commonwealth as verdict winner, the evidence presented at trial was sufficient to prove that Appellant was part of the conspiracy. That evidence demonstrated that Appellant, while imbibing alcohol, became angry while discussing his cousin's murder with the Hopkins brother...