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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

TERRY DAVID KLINE, JR.,

Appellant No. 148 MDA 2009

Appeal from the Judgment of Sentence Entered December 19

, 2008

In the Court of Common Pleas of Berks County

Criminal Division at No(s): CP

- 06

- CR -0005241-2007

BEFORE: BENDER, J., GANTMAN, J., and FREEDBERG, J. *



### MEMORANDUM BY BENDER, P.J.: FILED AUGUST 08, 2014

Terry David Kline, Jr., appeals from the judgment o f sentence of

twenty to forty years’ imprisonment, imposed after he was convicted of

conspiracy to commit third degree murder, aggravated ass ault, and

conspiracy to commit aggravated assault. We affirm.

The facts of this case, as summarized from the trial court ’s opinion,

are that on the night of September 6, 2007, five me n including Appellant,

his brother, Kenneth Kline (he reinafter referred to as “Kenneth”), Timothy

Gearhart, Derik Houser, and Andrew Weber, planned to go to Shorty’s Bar in

Kutztown to celebrate Appellant’s twenty -fourth birthday. Houser drove the

____________________________________________

* 

### Judge Freedberg did not participate in the consider ation or decision of this

case.

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five men in his vehicle and the group arrived at the bar between midnight

and 12:30 a.m. on the morning of September 7, 2007. After the bar closed

at approximately 2:00 a.m., the five men congregated outside near Houser’s

car. A witness, who was also standing outside of the bar, claimed that

Appellant, Kenneth, a nd Gearhart were “hyped up” and “excited,” and that

Appellant wanted to fight someone just for the sake of fighting. N.T. Trial,

11/3-7/08, at 167. The witness also stated that Appel lant was out of control

and argued with another individual in the vicinity o f the group. Houser

interceded, however, and at his urging, Appellant, Ke nneth, Gearhart, and

Weber got into Houser’s car to go home.

Once underway, however, Appellant began accusing House r of

“disrespect[ing] him,” and challenging him to a fight. Id. at 326. Appellant

then jumped out of Houser’s car, took off his shirt, an d urged Houser to get

out of the car to fight him. Houser was able to calm A ppellant down and

convince him to get back into the vehicle.

As the group resumed their journey home, they came upo n three

individuals standing on the sidewalk speaking to one an other. Gearhart

suggested that if they wanted to start a fight, they sh ould provoke one of

these three people. Appellant, Kenneth, and Gearhar t told Houser to stop,

at which p oint the three men got out of Houser’s car, said “[l]et ’s fuck

somebody up,” and approached the three individuals. Id. at 331. Houser

and Weber drove around the corner and parked near th e intersection of Main

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and Noble Streets. Meanwhile, Appellant, Kenneth, a nd Gearhart began to

aggressively accuse the three individuals of making dero gatory statements

to them. One of the individuals claimed that the men were yelling and

getting close enough to make her feel threatened. W hen a police car drove

down a n earby alley and someone yelled, “cops,” id. at 218, Appellant,

Kenneth, and Gearhart left the scene and walked towa rd Houser’s car parked

on Main Street.

When the three men reached Main Street, they encounte red another

bystander, Kyle Quinn. Quinn, who was walking to hi s dormitory, was

talking on his cell phone when he was confronted by Ken neth. Kenneth

asked Quinn to whom he was speaking, and when Quinn r esponded that he

was not speaking to Kenneth, Kenneth grabbed Kyle’s cel l phone and threw

it into the street. Appellant, Gearhart, and Kennet h surrounded Quinn and

began yelling at him. Eventually, Appellant threw a punch at Quinn. In the

midst of the fight, Gearhart picked up a table leg, which he found in the

vicinity, and swung it with great force, striking Quin n on the left side of his

face. Quinn fell to the sidewalk, bleeding profusely . The blow to Quinn’s

head tore the artery at the base of his brain, which ca used massive bleeding

resulting in his death.

After Quinn fell to the ground, Ken neth and Gearhart got into Houser’s

car, but Appellant continued to stand over Quinn’s body , saying, “I don’t

hear you talking anymore, bitch,” and calling Quinn ot her derogatory names.

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When Appellant finally returned to the car, he and h is two cohorts

en couraged Houser to drive away. However, before they could flee, Police

Officer Corporal Paul Clery of the Kutztown Borough Police Department

pulled alongside Houser’s car and blocked their escape. W ithin minutes,

additional police officers arrived at the scene and each of the five men were

taken into custody.

Both Appellant and Kenneth subsequently gave statement s to police

on September 7, 2007, and again on September 10, 20 07. While the men

initially denied any involvement in the attack on Qu inn, Appellant eventually

admitted that Kenneth approached Quinn and exchanged words, after which

Kenneth took Quinn’s phone and threw it across the stree t. Appellant also

confessed that he began arguing with Quinn, and that h e saw Gearhart pick

up an object and hit Quinn with it. He stated that Q uinn fell to the ground

and he, Kenneth, and Gearhart got into Houser’s car to flee. Appellant told

police that he began arguing with Quinn in order to protect his brother, but

acknowledged that Quinn did not strike at any of the three men.

Appellant, Kenneth, and Gearhart were all charged w ith various

offenses in connection with Quinn’s assault and death. G earhart

subsequently entered a guilty plea to third-degree mu rder and conspiracy to

commit aggravated assault. He was sentenced to an agg regate term of 20

to 40 years’ incarceration, followed by 20 years’ prob ation. Appellant and

Kenneth proceeded to trial as co-defendants, both charg ed with third-degree

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murder, conspiracy to commit third-degree murder, aggra vated assault, and

conspiracy to commit aggravated assault. While the jury ultimately

acquitted both Appellant and Kenneth of third-degree murder, it returned

guilty verdicts on the remaining charges. Appellant wa s subsequently

sentenced to 20 to 40 years’ im prisonment for the conspiracy to commit

third- degree murder conviction, as well as a concurrent term of 20 years’

probation for the crime of aggravated assault. The o ffense of conspiracy to

commit aggravated assault was deemed to merge for sente ncing purposes.

Appellant filed a timely notice of appeal, as well a s a timely concise

statement of matters complained of on appeal pursuant t o Pa.R.A.P.

1925(b). Herein, he raises the following two issues fo r our review:

A. The evidence was insufficient as a matter of law and aga inst

the weight of the evidence to convict [] Appellant of

[conspiracy to commit] third[-]degree murder, aggravate d

assault and conspiracy [to commit aggravated assault] whe re

there was no evidence presented that [] Appellant had the

intent to kill or ... that he was implicated in any conspiracy o r

accomplice liability.

B. The sentence was excessive and an abuse of discretion based

on the sentencing guidelines and the social history that was

presented to the court. The sentence also violated the State

and Federal Constitutions in that it constitutes cruel an d

unusual punishment.

Appellant’s Brief at 6.

Our Court filed an initial memorandum decision in t his case on

February 10, 2011. Therein, we concluded that the o ffense of conspiracy to

commit third degree murder was a legal nullity. Commonwealth v. Kline

,

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148 MDA 2009, unpublished memorandum at 6-8 (Pa. Sup er. filed February

10, 2011). 1 

### We felt compelled to reach this result based on this Cour t’s

prior decision in Commonwealth v. Clinger , 833 A.2d 792 (Pa. Super.

2003) (stating “third degree murder is a killing done with malice that is

neither intentional nor committed in the course of a felony”), and our

Supreme Court’s interpretation of Clinger in Commonwealth v. Weimer

,

977 A.2d 1103, 1105 (Pa. 2009) (stating, in a parent hetical accompanying a

citation to Clinger , that Clinger stands for the proposition that “because it

is impossible for one to intend to commit an unintentio nal act, it is

impossible to commit [the] crime of conspiracy to commit th ird degree

murder”).

Because we concluded in our initial memorandum decision that there

was no such offense as conspiracy to commit third degree mu rder, we

vacated Appellant’s judgment of sentence for that offe nse and remanded for

resentencing. Consequently, we did not address the meri ts of Appellant’s

sentencing issue. We did, however, assess the merits of his challenge to the

____________________________________________

1 

### We acknowledged that Appellant did not challenge hi s conviction for

conspiracy to commit third degree murder on this basis. However, we

reasoned that we were required to raise this issue sua sponte , as it impacted

the legality of Appellant’s sentence and the jurisdic tion of the trial court to

impose a sentence for that offense. Id. at 6 n.2 (citing Commonweatlh v.

Kozrad , 499 A.2d 1096, 1097- 98 (Pa. Super. 1985) (“[I]t is required of this

[C]ourt to correct an illegal sentence sua sponte .”); Commonwealth v.

Boerner , 422 A.2d 582, 588 n.11 (Pa. Super. 1980) (finding that where it is

beyond the power of the court to impose a sentence, an issue regarding the

court’s jurisdiction is raised)).

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sufficiency and weight of the evidence to support his con victions for

aggravated assault and conspiracy to commit aggravated assault. We

concluded that the evidence was sufficient to support App ellant’s convictions

for those crimes, and that the jury’s verdict was not against the weight of

the evidence. See Kline , 148 MDA 2009, at 8-13.

On October 30, 2013, our Supreme Court issued Commonwealth v.

Fisher , 80 A.3d 1186 (Pa. 2013), which abrogated Clinger and held that

conspiracy to commit third degree murder is a cognizable offense. Id. at

1195. On March 5, 2014, our Supreme Court issued a per curiam order

granting allowance of appeal in this case and vacating our decision pursuant

to Fisher . The Court remanded this matter to our Court for f urther

proceedings.

Now, upon remand, we will examine the merits of Appellant ’s claims

that the evidence was insufficient to support his convict ions for conspiracy to

commit third degree murder, aggravated assault, and co nspiracy to commit

aggravated assault; that all three of these convictions were contrary to the

weight of the evidence; and that the court abused its d iscretion in fashioning

his sentence.

We begin by addressing Appellant’s challenge to the su fficiency of the

evidence to sustain his convictions.

The standard we apply in reviewing the sufficiency of t he

evidence is whether viewing all evidence admitted at trial in the

light most favorable to the verdict winner, there is su fficient

evidence to enable the fact-finder to find every elem ent of the

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crime beyond a reasonable doubt. In applying [the ab ove] test,

we may not weigh the evidence and substitute our judgm ent for

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 re garding 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 reasonabl e doubt

by means of wholly circumstantial evidence. Moreover, in

applying the above test, the entire record must be eva luated and

all evidence actually received must be considered. Final ly, th e

trier of fact while passing upon the credibility of t he witnesses

and the weight of the evidence produced, is free to believe all,

part or none of the evidence.

Commonwealth v. Troy , 832 A.2d 1089, 1092 (Pa. Super. 2003)

(citations omitted).

Here, Appellant maintains that the evidence was insuf ficient to prove

he conspired with Kenneth and Gearhart to attack Quin n. Instead, he claims

that he was merely present during the assault, which wa s demonstrated by

the evidence that he did not physically touch Quinn. Appellant also

maintains that he “had no knowledge that Gerhart [ sic ] intended to harm

Quinn.” Appellant’s Brief at 15. Thus, he avers that the evidence was

insufficient to support his convictions.

Appellant’s argument is unconvincing. Crimin al conspiracy is defined

by our Crimes Code as follows:

(a) Definition of conspiracy.-- A person is guilty of conspiracy

with another person or persons to commit a crime if wit h the

intent of promoting or facilitating its commission he:

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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). Our Court has also summarized t he elements of

criminal conspiracy as follows:

To sustain a conviction for criminal conspiracy, the

Commonwealth must establish that the defendant (1) ent ered

into an agreement to commit or aid in an unlawful ac t with

another person or persons, (2) with a shared criminal in tent and

(3) an overt act was done in furtherance of the conspira cy. This

overt act need not be committed by the defendant; it need only

be committed by a co-conspirator.

Commonwealth v. McCall , 911 A.2d 992, 996 (Pa. Super. 2006) (citations

and quotation marks omitted).

In regard to Appellant’s sp ecific conviction for conspiracy to commit

aggravated assault, this Court has stated that to sustain such a conviction,

“the Commonwealth need only establish intent to commit or aid in the

commission of aggravated assault, an agreement with a c o-conspirator, and

an overt act in furtherance of the conspiracy.” Commonwealth v.

Thomas , 65 A.3d 939, 945 (Pa. Super. 2013). Moreover, f or the offense of

conspiracy to commit third degree murder, our Supreme Court has clarified:

If a defendant acts with his co- co nspirators in brutally attacking

the victim with the intention of killing him, he consp ires to

commit first degree murder; if the defendant perform s the same

action but does not care whether the victim dies or not, he

conspires to commit third degree murder. In the latter example,

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the defendant did not ... intend to aid an unintentio nal murder;

rather, he intended to aid a malicious act resulting in a killing.

Malice is not the absence of any intent, just the specific intent to

kill. Where ... the defendant int ends the underlying act (the

beating) which results in death, the evidence supports t he

charge of conspiracy to commit third degree murder.

Fisher , 80 A.3d at 1195 (emphasis in original).

In this case, it is clear from the factual summary, stated supra , that

the evidence was sufficient to enable the jury to find , beyond a reasonable

doubt, that Appellant conspired with Gearhart and Ke nneth to commit the

aggravated assault and third degree murder of Quinn. Namely, witnesses

testified that after Appellant left the bar, he was l ooking for a fight and tried

to engage several people in altercations, including hi s companion, Houser.

When Appellant and his cohorts came upon Quinn, they e ncircled him and

Appellant threw the first punch. Appellant admitted that during the course

of the fight, he saw Gearhart pick up an object and hi t Quinn hard from

behind. After Quinn fell to the sidewalk, Appellant stood over his body

taunting Quinn with insults. Appellant then got bac k into Houser’s vehicle

and directed him to leave the scene, admittedly in an attempt to run from

the police.

This evidence proved that Kenneth, Gearhart, and Appe llant conspired

to viciously attack Quinn, with the intent of causing h im serious bodily

injury, and without regard for whether Quinn lived or died. Therefore, the

evidence was sufficient to convict Appellant of the crimes of conspiracy to

commit aggravated assault and conspiracy to commit third degree murder.

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Consequently, Appellant is also criminally liable for t he aggravated assault

committed by Gearhart. See Commonwealth v. Lambert , 795 A.2d 1010,

1016 (Pa. Super. 2002) (“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 ta ken in furtherance of the conspiracy.”) (citations

omitted).

Appellant next contends that his convictions are contrar y to the weight

of the evidence, and simply reiterates the arguments pr offered in support of

his challenge to the sufficiency of the evidence.

A claim alleging the verdict was against the weight of the

evidence is addressed to the discretion of the trial cour t.

Accordingly, an appellate court reviews the exercise of the trial

court's discretion; it does not answer for itself whether the

verdict was against the weight of the evidence. It is w ell settled

that the jury is free to believe all, part, or none of the evidence

and to determine the credibility of the witnesses, and a new trial

based on a weight of the evidence claim is only warra nted where

the jury's verdict is so contrary to the evidence that i t shocks

one's sense of justice. In determining whether this stan dard has

been met, appellate review is limited to whether the trial judge's

discretion was properly exercised, and relief will only be granted

where the facts and inferences of record disclose a palpabl e

abuse of discretion.

Commonwealth v. Houser , 18 A.3d 1128, 1135-1136 (Pa. 2011) (citations

and internal quotation marks omitted).

Here, in denying Appellant’s challenge to the weight of the evidence,

the trial court stated:

For the reasons set forth in the previous section [addre ssing

Appellant’s challenge to the sufficiency of the evidence ], it is

clear that the verdict is in no way contrary to the ev idence.

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Clearly, the verdict of the jury in this case could not shock

anyo ne’s sense of justice. It certainly does not shock the

[c]ourt’s.

Trial Court Opinion (TCO), 6/30/09, at 18. Based on our discussion of the

evidence proffered by the Commonwealth in support of Appellant’s

convictions, we ascertain no abuse of discretion in the trial court’s

determination. Accordingly, Appellant’s weight of th e evidence claim is

meritless.

Finally, Appellant alleges that the trial court abuse d its discretion in

imposing a sentence of 20 to 40 years’ incarceration. T he Honorable Paul M.

Yatron of the Court of Common Pleas of Berks County t horoughly addressed

Appellant’s sentencing issue in his Pa.R.A.P. 1925(a) op inion, explaining the

factors he considered in fashioning Appellant’s sentence, a nd citing to the

portion of the record where he expressed his rationale for the sentence

imposed. See TCO at 18-21 (citing N.T. Sentencing Hearing, 12/19/0 8, at

74 -80). After thoroughly reviewing the briefs of th e parties, the applicable

case law, and the sentencing transcript, we are satisfie d th at Judge Yatron’s

opinion adequately disposes of Appellant’s sentencing cl aim. Accordingly,

we adopt that portion of Judge Yatron’s opinion as ou r own and conclude, on

the grounds set forth therein, that Appellant’s sente nce was not an abuse of

the court’ s discretion.

Judgment of sentence affirmed.

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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/8/2014