J-A27035-10

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 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

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

conspiracy to commit third degree murder, aggravated assault, 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 men including Appellant, 

his brother, Kenneth Kline (hereinafter 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 consideration 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, and 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 Appellant was out of control 

and argued with another individual in the vicinity of the group. Houser 

interceded, however, and at his urging, Appellant, Kenneth, Gearhart, and 

Weber got into Houser’s car to go home. 

Once underway, however, Appellant began accusing Houser 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, and urged Houser to get 

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

convince him to get back into the vehicle. 

As the group resumed their journey home, they came upon three 

individuals standing on the sidewalk speaking to one another. Gearhart 

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

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

at which point 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 the intersection of Main 
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and Noble Streets. Meanwhile, Appellant, Kenneth, and Gearhart began to 

aggressively accuse the three individuals of making derogatory statements 

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

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

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

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

on Main Street. 

When the three men reached Main Street, they encountered another 

bystander, Kyle Quinn. Quinn, who was walking to his dormitory, was 

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

asked Quinn to whom he was speaking, and when Quinn responded that he 

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

it into the street. Appellant, Gearhart, and Kenneth 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 Quinn 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 caused massive bleeding 

resulting in his death. 

After Quinn fell to the ground, Kenneth 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 other derogatory names. 
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When Appellant finally returned to the car, he and his two cohorts 

encouraged 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. Within minutes, 

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

taken into custody. 

Both Appellant and Kenneth subsequently gave statements to police 

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

initially denied any involvement in the attack on Quinn, Appellant eventually 

admitted that Kenneth approached Quinn and exchanged words, after which 

Kenneth took Quinn’s phone and threw it across the street. Appellant also 

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

up an object and hit Quinn with it. He stated that Quinn 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 with various 

offenses in connection with Quinn’s assault and death. Gearhart 

subsequently entered a guilty plea to third-degree murder and conspiracy to 

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

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

Kenneth proceeded to trial as co-defendants, both charged with third-degree 
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murder, conspiracy to commit third-degree murder, aggravated 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 was subsequently 

sentenced to 20 to 40 years’ imprisonment 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 offense of conspiracy to 

commit aggravated assault was deemed to merge for sentencing purposes. 

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

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

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

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

the weight of the evidence to convict [] Appellant of 

[conspiracy to commit] third[-]degree murder, aggravated 

assault and conspiracy [to commit aggravated assault] where 

there was no evidence presented that [] Appellant had the 

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

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 and 

unusual punishment. 

 

Appellant’s Brief at 6.

 Our Court filed an initial memorandum decision in this case on 

February 10, 2011. Therein, we concluded that the offense 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. Super. filed February 

10, 2011).1

 We felt compelled to reach this result based on this Court’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 parenthetical accompanying a 

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

is impossible for one to intend to commit an unintentional act, it is 

impossible to commit [the] crime of conspiracy to commit third degree 

murder”). 

Because we concluded in our initial memorandum decision that there 

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

vacated Appellant’s judgment of sentence for that offense and remanded for 

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

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

____________________________________________ 

1

 We acknowledged that Appellant did not challenge his 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 jurisdiction 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 convictions for 

aggravated assault and conspiracy to commit aggravated assault. We 

concluded that the evidence was sufficient to support Appellant’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 further 

proceedings. 

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

that the evidence was insufficient to support his convictions for conspiracy to 

commit third degree murder, aggravated assault, and conspiracy to commit 

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

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

his sentence. 

We begin by addressing Appellant’s challenge to the sufficiency of the 

evidence to sustain his convictions. 

The standard we apply in reviewing the sufficiency of the 

evidence is whether viewing all evidence admitted at trial in the 

light most favorable to the verdict winner, there is sufficient 

evidence to enable the fact-finder to find every element of the 
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crime beyond a reasonable doubt. In applying [the above] test, 

we may not weigh the evidence and substitute our judgment 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 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 the 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 insufficient to prove 

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

that he was merely present during the assault, which was 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. Criminal 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 with the 

intent of promoting or facilitating its commission he:
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(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. 

18 Pa.C.S. § 903(a). Our Court has also summarized the elements of 

criminal conspiracy as follows: 

To sustain a conviction for criminal conspiracy, the 

Commonwealth must establish that the defendant (1) 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. 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 specific 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 co-conspirator, and 

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

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

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

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

the victim with the intention of killing him, he conspires to 

commit first degree murder; if the defendant performs 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 unintentional 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 intends the underlying act (the 

beating) which results in death, the evidence supports the 

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 Kenneth to commit the 

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

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

to engage several people in altercations, including his companion, Houser. 

When Appellant and his cohorts came upon Quinn, they encircled him and 

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

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

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

taunting Quinn with insults. Appellant then got back 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 Appellant conspired 

to viciously attack Quinn, with the intent of causing him 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 the 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 taken in furtherance of the conspiracy.”) (citations 

omitted). 

Appellant next contends that his convictions are contrary to the weight 

of the evidence, and simply reiterates the arguments proffered 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 court. 

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 well 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 warranted where 

the jury's verdict is so contrary to the evidence that it shocks 

one's sense of justice. In determining whether this standard 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 palpable 

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 [addressing 

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

clear that the verdict is in no way contrary to the evidence. 
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Clearly, the verdict of the jury in this case could not shock 

anyone’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 the evidence claim is 

meritless. 

 Finally, Appellant alleges that the trial court abused its discretion in 

imposing a sentence of 20 to 40 years’ incarceration. The Honorable Paul M. 

Yatron of the Court of Common Pleas of Berks County thoroughly addressed 

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

factors he considered in fashioning Appellant’s sentence, and 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, 12/19/08, at 

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

case law, and the sentencing transcript, we are satisfied that Judge Yatron’s 

opinion adequately disposes of Appellant’s sentencing claim. Accordingly, 

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

the grounds set forth therein, that Appellant’s sentence 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