J-A19031-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

 Appellant

v.

JAMIL JOHNSON

No. 2454 EDA 2015

Appeal from the Order July 15, 2015

in the Court of Common Pleas of Philadelphia County Criminal Division

at No(s):CP-51-CR-0011362-2014

BEFORE: FORD ELLIOTT, P.J.E., OTT, and FITZGERALD,*JJ.

MEMORANDUM BY FITZGERALD, J.: FILED DECEMBER 27, 2016

The Commonwealth appeals from the order entered in the Philadelphia 

County Court of Common Pleas granting Appellee’s, Jamil Johnson, motion 

for judgment of acquittal for conspiracy. We reverse and remand for 

reinstatement of the jury verdict and for sentencing. 

The trial court summarized the procedural posture of this case as 

follows:

Defendants, Derrick Harling1and [Appellee], were 

arrested on September 18, 2014, and charged with 

robbery, conspiracy, theft by unlawful taking, receiving 

stolen property, simple and aggravated assault and 

recklessly endangering another person. [Defendant 

Harling and Appellee] were held for court on all charges 

 

*

Former Justice specially assigned to the Superior Court.

1 The Commonwealth’s appeal of the trial court’s grant of relief to Appellee’s 

codefendant, Derrick Harling, is listed at 2453 EDA 2015.
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after a preliminary hearing on October 6, 2014. A joint 

jury trial commenced July 9, 2015. A motion for acquittal 

was presented at the conclusion of the prosecution’s 

case[2] and held in abeyance until after the jury returned a 

verdict. On July 14th, the jury found [Appellee and 

Harling] guilty of conspiracy to commit aggravated assault, 

but acquitted both [of them] of all other charges, including 

aggravated assault. On July 15th, the motion for acquittal 

was granted as to the charge of criminal conspiracy to 

commit aggravated assault.

Trial Ct. Op., 10/28/15, at 1-2. This timely appeal followed. The 

Commonwealth filed a Pa.R.A.P. 1925(b) statement of errors complained of 

on appeal and the trial court filed a responsive opinion.

Preliminarily, we consider whether an appeal properly lies from the 

trial court’s order granting judgment of acquittal. Appellee argues that the 

order constituted an acquittal for double jeopardy purposes and that the 

Commonwealth’s appeal should be barred. Appellee’s Brief at 10-13 (citing, 

inter alia, Commonwealth v. Gibbons, 784 A.2d 776 (Pa. 2001)). The 

Commonwealth responds that its appeal is proper because there is no 

possibility of a successive prosecution implicating the double jeopardy 

clause.3 Commonwealth’s Reply Brief at 4-6. We agree with the 

Commonwealth. 

 

2 Counsel for Appellee moved for judgment of acquittal. See R.R. at 82. 

Defendant Harling’s counsel joined in the motion. See id. For the parties’ 

convenience we refer to the reproduced record where applicable.

3 The Fifth Amendment provides, in pertinent part, that no person “Shall be 

subject for the same offence to be twice put in jeopardy of life or limb.” 

U.S. Const. amend. V. Article 1, Section 10, of the Pennsylvania 
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In Gibbons, the defendant moved for a judgment of acquittal after the 

Commonwealth presented its case, and the trial court granted the motion 

before the defense’s case-in-chief. Gibbons, 784 A.2d at 777. Our 

Pennsylvania Supreme Court held that double jeopardy precluded an appeal 

of a judgment of acquittal granted before a verdict was rendered. Id. at 

778. 

This Court in Commonwealth v. Feathers, 660 A.2d 90 (Pa. Super. 

1995) (en banc) opined:

In United States v. Wilson, [ ] 95 S. Ct. 1013 [ ] (1975), 

the Supreme Court held “that when a judge rules in favor 

of the defendant after a verdict of guilty has been entered 

by the trier of fact, the Government may appeal from that 

ruling without running afoul of the Double Jeopardy 

Clause.” Id. [ ] at 1026 [ ]. The Court said:

[W]here there is no threat of either multiple 

punishment or successive prosecutions, the Double 

Jeopardy Clause is not offended. In various 

situations where appellate review would not subject 

the defendant to a second trial, this Court has held 

that an order favoring the defendant could 

constitutionally be appealed by the Government. 

Since the 1907 Criminal Appeals Act, for example, 

the Government has been permitted without serious 

constitutional challenge to appeal from orders 

arresting judgment after a verdict has been entered 

against the defendant. Since reversal on appeal 

would merely reinstate the jury’s verdict, review of 

such an order does not offend the policy against 

multiple prosecution.

 

Constitution provides, in relevant part, that “no person shall, for the same 

offense, be twice put in jeopardy of life or limb.” Pa. Const. art. 1, § 10.
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Id. [ ] at 1022 [ ] (footnote omitted). 

 * * *

[W]here a court finds as a matter of law the evidence is 

not sufficient to support the verdict, that, like any other 

ruling on a question of law, is subject to review, and an 

order by the reviewing court reversing that conclusion 

and reinstating the jury verdict does not offend the 

proscription against double jeopardy.

Id. at 93-94 (emphases added). 

Instantly, although Appellee raised his motion for judgment of 

acquittal at the close of the Commonwealth’s case, the trial court reserved 

its ruling on the motion until after the defense presented its evidence and 

the jury reached a verdict.4 See Pa.R.Crim.P. 606(A)(1), (B). Thus, an 

appellate reversal would not necessitate a retrial. On the contrary, the jury 

verdict would be reinstated. Feathers, 660 A.2d at 93-94; cf. United 

States v. Scott, 437 U.S. 82, 100 n.13 (1978) (discussing balancing of 

interest in the government’s right to appeal an erroneous conclusion of law 

with the defendant’s in avoiding subsequent prosecutions). Accordingly, the 

trial court’s order is appealable and we address the substantive issue raised 

by the Commonwealth. See id.

The Commonwealth raises the following issue for our review:

 

4 We note that Appellee renewed the motion following the jury verdict. 

Counsel for Appellee stated: “This is a continued motion for directed verdict 

of acquittal.” R.R. at 124. 
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Did the lower court improperly grant [Appellee’s] 

motion for a judgment of acquittal from his conspiracy 

conviction where the evidence established that [Appellee] 

and his codefendant, joined by three other men, 

approached the victim [Martin Samuel Byng] together, 

beat the victim together, fled the scene together, and, a 

short time later, were arrested together?

Commonwealth’s Brief at 2. 

The Commonwealth contends “[t]he evidence, which established that 

[Appellee] and four conspirators viciously beat [Mr. Byng] for fifteen 

minutes, was sufficient to support [Appellee’s] conviction of conspiracy to 

commit aggravated assault.” Id. at 8. The Commonwealth argues that the 

trial court erred in granting Appellee’s motion for judgment of acquittal 

based “on its belief that [Mr. Byng] had not testified credibly.” Id. at 12. 

We are constrained to agree.

Our review is governed by the following principles.

[W]here a trial court has found post-verdict that the 

evidence was insufficient as a matter of law to support the 

verdict, that determination is subject to appellate review . 

. . .

 * * *

To determine the legal sufficiency of evidence supporting a 

jury’s verdict of guilty, this Court must:

view the evidence in the light most favorable to the 

Commonwealth, which has won the verdict, and 

draw all reasonable inferences in its favor. We then 

determine whether the evidence is sufficient to 

permit a jury to determine that each and every 

element of the crimes charged has been established 

beyond a reasonable doubt. It is the function of the 

jury to pass upon the credibility of the witnesses and 
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to determine the weight to be accorded the evidence 

produced. The jury is free to believe all, part or 

none of the evidence introduced at trial. The facts 

and circumstances established by the 

Commonwealth need not be absolutely incompatible 

with [the] defendant’s innocence, but the question of 

any doubt is for the jury unless the evidence be so 

weak and inconclusive that as a matter of law no 

probability of fact can be drawn from the combined 

circumstances.

Feathers, 660 A.2d at 94-95 (quotation marks and citations omitted).

The Pennsylvania Crimes Code defines conspiracy as follows:

(a) Definition of conspiracy.─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 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.

 * * *

(e) Overt act.─No person may be convicted of conspiracy 

to commit a crime unless an overt act in pursuance of such 

conspiracy is alleged and proved to have been done by him 

or by a person with whom he conspired.

18 Pa.C.S. § 903(a), (e).

A criminal conspiracy conviction requires proof of:

(1) an intent to commit or aid in an unlawful act, (2) 

an agreement with a co-conspirator and (3) an overt 

act in furtherance of the conspiracy. Because it is 

difficult to prove an explicit or formal agreement to 
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commit an unlawful act, such an act may be proved 

inferentially by circumstantial evidence, i.e., the 

relations, conduct or circumstances of the parties or 

overt acts on the part of the co-conspirators.

Circumstantial evidence can include, but is not limited to, 

the relationship between the parties, the 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.

* * *

The Commonwealth may meet this burden even if the 

conspirators fail to commit the underlying crime. 

Conspiracy to commit a crime and the underlying crime 

itself are two entirely separate offenses with separate 

elements required for each. Therefore, to sustain the 

conviction for criminal conspiracy, it need not be 

established that [the a]ppellant committed aggravated 

assault, provided that [the a]ppellant had the intent to do 

so.

Commonwealth v. Thomas, 65 A.3d 939, 943-44 (Pa. Super. 2013) 

(quotation marks and citations omitted). 

Instantly, Mr. Byng testified for the Commonwealth as follows:

[The Commonwealth]: Now, Mr. Byng, while you were 

waiting for the bus [on September 18th], did something 

happen?

A: Yes.

Q: What happened?

A: Well, I was approached by two men, one on a bike . . . .

 * * *
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Q: Were they either of the two Defendants who are here 

today?

A: No.

 * * *

Q: What happened when they came up to you . . .?

A: One guy asked did I say something to his cousin and I 

replied no.

Q: You said you didn’t know them. 

Had you ever seen either of them before?

A: No. 

Q: After you said no, what happened?

A: They proceeded to walk off and as they were walking 

off, I was looking to see which direction they were going 

and words were exchanged.

 * * *

Q: When you say words were exchanged, what happened?

A: They must have felt some kind of way at me looking at 

them and all of a sudden they started calling theirs friends 

like I was really a big problem or something.

 * * *

Q: Now were you able to hear anything that they were 

calling out to those people?

A: As far as names, no, just trying to get other people’s 

attention.

Q: As they were calling out to them, were they still 

approaching you?

A: Yes. 
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Q: You mentioned that they were coming kind of 

aggressively, you mentioned like with anger in their faces?

A: Yes.

Q: What happened when they kept coming close to you?

A: I started backing up when I seen [sic] I was basically 

about to be outnumbered. I started to walk up toward 

where the Family Dollar is at. 

Q: Now as they were coming closer to you and you 

mentioned they called out to some other individuals, those 

individuals that you saw down the block, what did you see 

them do, if anything?

A: Basically coming toward me, coming toward me and 

surrounding me and they proceeded to assault me.

 * * *

Q: [A]pproximately how many people in total came up to 

you eventually?

A: Five.

Q: Any of the individuals that came up to you, do you 

recognize anybody in the courtroom from that day?

A: Yes, I do.

Q: Who are those people?

A: Those two gentlemen over there. (Indicating).

 * * *

Q: . . . I will start with [Appellee] who is closer to the 

center of the room. (Indicating).

When did you first notice him?

 * * *
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A: After I got up off the ground.

 * * *

Q: Next, I am going to ask next about Defendant, Harling . 

. . . 

When did you first notice him?

 * * *

Again, if you can just use the photo.

A: Coming from across here, up toward Germantown 

Avenue. (Indicating).

 * * *

Q: Now, you mentioned assault. . . .

What was the first contact?

A: The first contact is when I attempted to cover my face 

and I started feeling hits, blows toward my body and 

toward my head.

 * * *

Well, I just felt multiple hits coming from just about 

every direction.

Q: Where were you feeling the hits on your body?

A: More toward my head.

Q: Did you feel any hits on your body, itself, or were they 

all around your head?

A: When I was covering my head, I felt hits on my body . . 

. .

 * * *

Q: Did you feel hits from just one person or multiple 

people?
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A: Multiple.

 * * *

Q: Mr. Byng, your glasses, did they stay on the entire 

time?

A: No.

Q: Do you recall at what point they came off?

A: When I fell to the ground in front of the bus stop.

Q: How did they come off?

A: They were knocked off.

Q: How were they knocked off?

A: From a punch.

Q: While you were on the ground, what were the 

individuals doing?

 * * *

Did the punches stop at that time?

A: The punches did stop at that time and I was getting up.

 * * *

Q: As you are getting up, were the individuals still there?

A: They started splitting up and stuff. As words were 

exchanged again and stuff, people started coming closer, 

still talking more aggressively. It was just a mess.

Q: I want to go back to [Appellee]. You mentioned when 

you got up, that is when you noticed him?

A: Yes.
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Q: What, if anything, did you see him do?

A: He came across the street toward me.

 * * *

Q: Now was that after─

A: I fell?

Q: Yes.

A: Yes.

Q: When he came across the street toward you, did you 

hear him say anything?

A: I don’t recall the words exactly but I know that when he 

approached me, he had his hands up in a fighting stance.

Q: You can indicate for the jury how he had his hands up.

A: Just like ready to throw punches at me. (Indicating).

Q: As he came across the street, was he directing his 

attention to anybody but you?

A: No, no.

Q: You say that he came across the street looking like he 

was ready to fight.

What happened as he came across the street?

A: I was about to defend myself and then another 

gentleman said don’t put your hands on him.

Q: The gentleman that you say said don’t put your hands 

on him, do you see that individual in court today?

A: Yes, I do. 

Q: Who is that person?
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A: The gentleman on the far right. (Indicating).

[The Commonwealth]: Indicating the Defendant, Harling.

Q: Now when the Defendant, Harling, said that, where was 

he?

A: He was, as I was in the street right here and getting up, 

the Defendant was coming across. . . .

Q: How far away was he from you?

A: About 8 feet. 

 

 * * *

Q: When he said that, what did you take that to mean?

A: That I was getting ready probably to get assaulted 

again if I even threw a swing.

Q: After he said that, what happened?

A: I was hit again.

Q: Who were you hit by?

A: By [Appellee] right there. (Indicating).

Q: [Appellee], the one closer?

A: Yes.

Q: Where were you hit at that time?

A: In my face.

 * * *

Q: When [Appellee] hit you, did he just hit you one time or 

did something else happen?

A: Two hits.
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Q: Where were these two hits? . . .

A: [T]o my head and to my jaw.

 * * *

Q: After you got back up, what happened?

A: I was looking for my glasses. A couple of my family 

members came up because they heard about the incident 

through a friend who was driving by and maybe two 

minutes later, the police arrived and that was basically the 

incident.

Q: Now, Mr. Byng, during this whole altercation, did you 

see what, if anything, Defendant, Harling, did he ever 

throw a punch at you?

A: When he was approaching me in the beginning, he was 

one of the guys who was approaching me.

Q: So that first fight I guess we can call it when you 

mentioned you were kind of going toward Family Dollar 

that ended up back toward the bus stop─

A: Correct.

Q: During that fight─

A: Yes.

Q:─you are saying Defendant, Harling, was there?

A: Yes.

Q: He also threw a punch?

A: Yes.

 * * *

Q: Now, after the punches stopped, could you try and 

engage or tell how long the entire attack took?
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A: More or less, 15, maybe 25 minutes, around that time 

frame.

 * * *

Q: Now after the assault, you said everybody kind of 

scattered?

A: Yes.

Q: At the point when they scattered, did you hear any 

sirens, any police sirens?

A: Yes, like two minutes later.

 * * *

Q: During that time, you said it was about two minutes, 

what were you doing during that time?

 * * *

A: I was mainly looking for my glasses and I realized my 

phone wasn’t on me.

Q: Did you look for your phone?

A: I did.

Q: Were you able to find it?

A: I didn’t and I realized my whole pocket was ripped and 

my shirt was ripped. Basically everything was just 

bloodied and ripped on me.

 * * *

Q: How did you physically feel after the assault?

A: Violated.

Q: Did you feel any pain at all? Did you feel fine?
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A: I felt pain and stuff. My whole inner lip was cut and 

later on got infected but [sic] bruising on my head, a 

closed eye.

 * * *

Q: . . . When the police got there, what happened?

A: They asked me the situation that happened. I told 

them the situation. The ambulance had checked on me 

and they checked my bruising and scar and they said I am 

able to comprehend and all that, so I can go with the 

police to see if I can identify the subjects before they ran 

anywhere else or anything like that and I told the police 

officer I was fine at the time, fine enough to go and get in 

the back of the police car and identify.

 * * *

Q: Do you know where you went?

A: Down Germantown Avenue . . . .

 * * *

Q: As you went in that direction, what happened?

A: I noticed to the right of me going down Germantown 

Avenue one of the assailants was sitting outside with a 

female.

Q: The person that you saw sitting outside, do you see 

that individual in court today?

A: Yes, I do.

Q: Who is that?

A: The gentleman to the far right. (Indicating)

 * * *

[The Commonwealth]: Indicating the Defendant, Harling, 

for the record.
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 * * * 

Q: I want to briefly just go back for a moment.

After you got up, you said you saw [Appellee], and that is 

when he was kind of squared with you.

Was there anything covering his face?

A: No. 

 * * *

Q: Was Defendant, Harling, behind [Appellee] at that point 

in time?

A: No.

Q: Where was he?

A: To the side.

 * * * 

Q: Now, you mentioned that the police car did a U-turn?

A: Yes.

Q: What happened as it did the U-turn?

A: The police car did the U-turn, stopped directly in front 

of the house, got out of the car, attempted to knock on the 

door. Someone answered. The police went in and pulled 

out [Defendant Harling and Appellee].

 * * *

Q: What happened when the brought them out?

A: They came out and I identified them as two of the five 

men that assaulted me and they proceeded to arrest them.

R.R. at 30-39. 
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Police Officer Leo Jackson testified that on September 18, 2014 he was 

working the 4:00 p.m. to midnight shift. Id. at 66. He testified to the 

following.

[The Commonwealth]: Officer Jackson, around 10:20 p.m. 

on September 18, 2014, did you get a radio call?

A: Yes.

Q: What was it for?

A: It was for a robbery in progress at 5200 Germantown 

Avenue.

 * * *

Q: When you got that radio call, what did you do?

A: We turned our lights and sirens on and proceeded to 

5200 Germantown Avenue.

Q: About how long did it take you to get there?

A: I would say about a minute-and-a-half to two minutes.

Q: When you got there, what did you see?

What happened?

A: I observed the victim, the complainant standing on, I 

believe, the east corner of Germantown and Ashmead. I 

observed him standing there. He flagged us down and I 

also observed the swollen─pretty bad swelling to his left 

eye. He was also bleeding. I believe he had a cut on his 

eyebrow and there was blood all over his shirt.

Q: When you came into contact with him, what was his 

demeanor like? What was going on?

A: He appeared pretty calm but also a little shaken up. He 

also told us he was jumped by a group of males and they 

had taken his cell phone.
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Q: After he gave you that information, what did you do?

A: We got the information, the description of the males, 

gave that description over radio and then he got into the 

back of our car and we started driving around, looking for 

the males with the complainant.

 * * *

Q: Now you said complainant, would that be Mr. Martin 

Byng?

A: Yes.

 * * *

Q: Where did you go?

A: We started surveying─ . . .we pretty much immediately 

made a U-turn and began driving southbound on 

Germantown from Ashmead Street, which is the 5200 

block.

At that point, . . . we passed the house and I don’t 

remember his exact words but Mr. Byng stated, oh, that’s 

one of the guys that was sitting out front of the house and 

he kind of pointed over his right shoulder. So we quickly 

made another U-turn. At that point, we saw the door close 

from the house.

 * * *

Q: Officer, after Mr. Byng indicted to you that he saw one 

of the guys, what did you do?

A: We stopped the car, turned around and then we called 

over radio to let other units know that the complainant 

saw a male suspected of being involved in the crime go 

into the house.

 * * *
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[Defendant, Harling’s counsel]: Now you said that other 

officers entered 5118?

A: Yes.

Q: There were approximately four or five officers that 

entered this address?

A: I believe around that. I’m not sure of the exact 

number.

Q: When they exited the address, two officers were 

holding Mr. Harling?

A: I don’t remember the exact number of officers holding.

Id. at 66-68, 70-71. 

Officer Dennis Murtha testified that he was with his partner and 

responded to a radio call that a man “was struck numerous times and 

robbed of his cell phone.” Id. at 72.

[The Commonwealth]: Based on the information that came 

over [sic] radio . . . what did you and your partner do?

A: We responded to 5118 Germantown Avenue. . . . [W]e 

knocked on the door. An occupant came down. She 

stated that she was the owner of the property.

 

We explained to her that a robbery just happened 

around the corner and that the offenders were seen 

running into this location. We asked if we could come in 

and take a look. She happily agreed. We went inside.

Id. Officer Murta testified that he and the other officers “went up the stairs” 

and “there was a bedroom at the top of the steps.” Id. at 73. They went 

inside and found Appellee and Defendant Harling in the room. Id. Mr. Byng 

positively identified Appellee. Id. at 74.
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The trial court granted Appellee’s motion for judgment of acquittal 

finding that:

[t]he prosecution’s case was based on the testimony of 

Martin Byng, the complainant in this matter. Mr. Byng was 

the sole witness as to the alleged assault/robbery, and his 

testimony was incongruent at best.

 * * * 

Byng’s testimony was inconsistent at best. Two males 

approached him and asked him a question. After they 

walked away, Byng started to yell and curse them. They 

came back. After that, the testimony of Byng is so 

conflicting as to be irreconcilable.

 * * *

Byng’s testimony is so incongruent that the charge of 

criminal conspiracy to commit aggravated assault was not 

made out. . . . There is no rational, dependable testimony 

from which to find that [Appellee and Defendant Harling] 

conspired to commit aggravated assault of Byng.

 

Trial Ct. Op. at 2, 7-8. The court further questioned the reliability of Byng’s 

identifications noting Byng testified that his glasses were knocked off and he 

could only see a few feet without them. Id. at 4. 

Following our review, we cannot agree with the trial court that the 

evidence was so weak and inconclusive that as a matter of law, no 

probability of fact could have been drawn from it. See Feathers, 660 A.2d 

at 94-95. The Commonwealth was entitled to have its evidence credited and 

all reasonable inferences drawn in its favor. See id. In this light, the jury 

could have reasonably concluded that Appellee and Defendant, Harling acted 

together with three other men and beat Byng for fifteen minutes. They fled 
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and Appellee and Defendant Harling were apprehended in the same house. 

Byng identified Appellee, without hesitation. Additionally, the circumstances 

of and inconsistencies in Byrd’s testimony generally go to the weight rather 

than sufficiency of the evidence.5 See Commonwealth v. Minnis, 458 

A.2d 231, 233-34 (Pa. Super. 1983). Thus, we conclude that the 

Commonwealth’s evidence was sufficient to sustain Appellee’s conviction for 

conspiracy to commit aggravated assault. See Thomas, 65 A.3d at 943-45. 

Accordingly, we must reverse the judgment of acquittal and reinstate the 

jury verdict. See Feathers, 660 A.2d at 96. We remand for the imposition 

of sentence. See id.

Order reversed. Jury verdict reinstated. Case remanded for 

sentencing. Jurisdiction relinquished. Commonwealth’s Petition to File 

Post-Argument Communication Pursuant to Pa.R.a.P. 2501 is denied as 

moot.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/27/2016

 

5 We note that the trial court issued a Kloiber instruction. See 

Commonwealth v. Kloiber, 106 A.2d 820 (1954). R.R. at 110.