### J-S43008- 14

______________________________

*Former Justice specially assigned to the Superior Court

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 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

SHARIFFA STEPHENS

Appellant No. 2930 EDA 2013

Appeal from the Judgment of Sentence August 13

, 2013

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP

- 51

- CR -0002834-2012

MC

- 51

- CR -0043809- 2011

BEFORE: GANTMAN, P.J., ALLEN, J., and FITZGERALD, J .*

MEMORANDUM BY GANTMAN, P.J.: FILED AUGUST 04, 2014

Appellant, Shariffa Stephens, appeals from the judgm ent of sentence

entered in the Philadelphia County Court of Common Pleas, following her

bench trial conviction for aggravated assault, simple a ssault, recklessly

endangering another person (“REAP”), and criminal consp iracy. 1 

### We affirm.

The relevant facts and procedural history of this appea l are as follows.

On October 13, 2011, Appellant and two cohorts drove t o an area near 2100

South Olden Street in Philadelphia, where Saprina J ackson was taking a

walk. Appellant and her companions exited the vehicl e together and quickly

____________________________________________

1 

### 18 Pa.C.S.A. §§ 2702(a), 2701(a), 2705, and 903, re spectively.

### J-S43008- 14

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approached Ms. Jackson. Appellant, or one of her cohor ts, immediately

struck Ms. Jackson in the head with a brick several times, causing Ms.

Jackson to fall to the ground. For approximately ten to fifteen minutes,

Appellant and her cohorts punched and kicked Ms. Jackson as she lay on the

ground. The attack ended when one of Appellant’s coho rts took Ms.

Jackson’s pocketbook. Appellant and her cohorts returned to the vehicle and

fled the scene together.

That same day, the police drove to Appellant’s home t o question

Appellant after they received information that connect ed Appellant and two

other women, Nicole Doughty and Kayana Blunt, with the earlier incident.

When the police asked Appellant if she knew anything about the incident,

Appellant simply described the incident as a “fair figh t.” When the police

asked Appellant if she knew where to find Ms. Doughty and Ms. Blunt,

Appellant told the police that Ms. Doughty and Ms. Bl unt were upstairs in

Appellant’s home. Upon questioning, Ms. Doughty and M s. Blunt also

maintained that whatever happened was a fair fight. The police handcuffed

Appellant, Ms. Doughty, and Ms. Blunt, and drove them to the hospital,

where Ms. Jackson was receiving treatment. After Ms. Ja ckson positively

identified Appellant, Ms. Doughty, and Ms. Blunt as th e women who had

attacked her and took her pocketbook, the police arrest ed Appellant, Ms.

Doughty, and Ms. Blunt. Subsequently, the police search ed Appellant’s

residence and discovered Ms. Jackson’s pocketbook.

### J-S43008- 14

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Following a one-day bench trial on April 24, 2013, the court found

Appellant guilty of aggravated assault, simple assault , REAP, and criminal

conspiracy. On August 13, 2013, the court sentenced Appel lant to an

aggregate term of twenty-four (24) to forty- eight (48) months’

imprisonment, followed by forty- two (42) months’ probation. On August 20,

2013, Appellant timely filed post-sentence motions, w hich the court

subsequently denied by order dated August 21, 2013. A ppellant timely filed

a notice of appeal on September 10, 2013. The court ordered Appellant on

September 25, 2013, to file a concise statement of erro rs complained of on

appeal pursuant to Pa.R.A.P. 1925(b). Appellant tim ely complied.

Appellant raises the following issues for our review:

WHETHER THE TRIAL COURT ERRED WHEN IT FOUND

[APPELLANT] GUILTY [OF] AGGRAVATED ASSAULT,

SIMPLE ASSAULT AND RECKLESS ENDANGERING OF

ANOTHER PERSON (REAP) WHEN IN FACT THE EVIDENCE

PRESENTED ESTABLISHED THAT [APPELLANT] WAS

MERELY PRESENT WHILE THE OTHER CHARGED CODEFENDANTS, KAYLA BLUNT AND NICOLE DOUGHTY, HIT

THE [VICTIM], SAPRINA JACKSON, WITH A BRICK AND

KICKED HER REPEATEDLY. [MS.] JACKSON TESTIFIED

THAT IT WAS HER BELIEF THAT [APPELLANT] WAS NOT

INVOLVED AND TRIED TO BREAK UP THE FIGHT.

WHETHER [THE] TRIAL COURT ERRED WHEN IT FOUND

[APPELLANT] GUILTY [OF] CONSPIRACY TO COMMIT

AGGRAVATED ASSAULT WHEN THE EVIDENCE WAS

INSUFFICIENT TO ESTABLISH THAT [APPELLANT] AND

HER CO-DEFENDANTS, KAYLA BLUNT AND NICOLE

DOUGHTY ACTED WITH INTENT OF PROMOTING OR

FACILITATING THE COMMISSION OF THE OFFENSE AND

THE EVIDENCE DID NOT ESTABLISH THAT DEFENDANTS

WERE IN AGREEMENT TO COMMIT A CRIME. THE

EVIDENCE PRESENTED WAS THAT [APPELLANT] WAS

### J-S43008- 14

- 4 - MERELY PRESENT AND ATTEMPTED TO BREAK UP THE

FIGHT BETWEEN CO-DEFENDANTS AND MS. JACKSON.

WHETHER [THE] COURT ERRED IN FINDING [APPELLANT]

GUILTY, WHICH WAS AGAINST THE WEIGHT OF THE

EVIDENCE SINCE IT WAS CLEAR THAT THE [VICTIM], MS.

JACKSON, EXONERATED [APPELLANT] WITH HER

TESTIMONY BY STATING THAT SHE BELIEVED

[APPELLANT] WAS MERELY PRESENT AND ATTEMPTED TO

BREAK-UP THE ALTERCATION BETWEEN THE [VICTIM]

AND THE CO-DEFENDANTS WHO SHE TESTIFIED WERE

MORE INVOLVED [THAN] [APPELLANT]. MORE

IMPORTANTLY BASED ON EVIDENCE ILLUMINATING CODEFENDANT, KAYLA BLUNT’S, CLEAR INVOLVEMENT SHE

WAS FOUND NOT GUILTY BY THE COURT ON ALL

CHARGES.

(Appellant’s Brief at 3).

In her first issue, Appellant argues Ms. Jackson’s own test imony

consistently exonerated Appellant. Appellant claims Ms. Jackson repeatedly

stated that Appellant was not part of the group that attacked her.

Furthermore, Appellant contends Ms. Jackson suggested Ap pellant tried to

break up the fight. Appellant also asserts police offi cer testimony regarding

Appellant’s description of the incident as a “fair fight ” does not contradict

Ms. Jackson’s testimony. Appellant concludes the evidence was insufficie nt

to convict Appellant of aggravated assault, simple assau lt, and REAP; and

this Court should reverse.

In her second issue, Appellant argues Ms. Jackson testified that

Appellant tried to break up the fight rather than a id the assailants.

Appellant contends the evidence actually gives rise to t he inference that

Appellant worked to stop the crime rather than facilit ate it. Furthermore,

### J-S43008- 14

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Appellant contends the court’s finding that Appellant’ s co -defendant, Ms.

Blunt, was not guilty on all counts is contra ry to the court’s finding that

Appellant did participate in a criminal conspiracy to co mmit aggravated

assault. Appellant concludes the evidence was insufficien t to convict

Appellant of criminal conspiracy; and this Court should reverse and dismiss

the case with prejudice.

In her third issue, Appellant argues the victim consisten tly testified

that Appellant tried to break up the fight and Appe llant’s co -defendant

participated in the attack. Appellant avers her convict ion and co- defendant’s

acquittal ar e inconsistent with Ms. Jackson’s testimony. Appellant co mplains

the court’s findings are so contrary to the testimony th at they can be

justified only by concluding the court was confused about the identity of

each co-defendant. Appellant suggests her co nviction shocks one’s sense of

justice and is made even more shocking when one considers t he court found

her co-defendant not guilty. Appellant concludes her co nviction was against

the weight of the evidence, and this Court should inva lidate the verdict a nd

dismiss the case with prejudice.

A challenge to the sufficiency of the evidence implicate s the following

legal principles:

The standard we apply in reviewing the sufficiency of the

evidence is whether viewing all the evidence admitted at

trial in the light most favorable to the verdict winn er, there

is sufficient evidence to enable the fact-finder to f ind every

element of the crime beyond a reasonable doubt. In

applying [the above] test, we may not weigh the evid ence

### J-S43008- 14

- 6 - and substitute our judgment for the fact-finder. In

addition, we note that the facts and circumstances

established by the Commonwealth need not preclude eve ry

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 beyo nd 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 [finder] of fact

while passing upon the credibility of witnesses and the

weight of the evidence produced, is free to believe al l, part

or none of the evidence.

Commonwealth v. Barnswell Jones , 874 A.2d 108, 120-21 (Pa.Super.

2005) (quoting Commonwealth v. Bullick , 830 A.2d 998, 1000 (Pa.Super.

2003)).

Our standard of review for a challenge to the weight of the evidence is

as follows:

The weight of the evidence is exclusively for the fin der of

fact who is free to believe all, part, or none of the evidence

and to determine the credibility of the witnesses. An

appellate court cannot substitute its judgment for that of

the finder of fact. Thus, we may only reverse the low er

court’s verdict if it is so contrary to the evidence as to

shock one’s sense of justice. Moreover, where the trial

court has ruled on the weight claim below, an appella te

court’s role is not to consider the underlying question of

whether the verdict is against the weight of the evid ence.

Rather, appellate review is limited to whether the t rial

court palpably abused its discretion in ruling on the w eight

claim.

Commonwealth v. Champney

, 574 Pa. 435, 444, 832 A.2d 403, 408

(2003), cert. denied , 542 U.S. 939, 124 S.Ct. 2906, 159 L.Ed.2d 816 (20 04)

### J-S43008- 14

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(internal citations omitted). We also observe:

A challenge to the sufficiency of the evidence is entire ly

distinct from a challenge to the weight of the eviden ce.

The distinction between these two challenges is

critical. A claim challenging the sufficiency of the

evidence, if granted, would preclude retrial under th e

double jeopardy provisions of the Fifth Amendment

to the United States Constitution, and Article I,

Section 10 of the Pennsylvania Constitution, whereas

a claim challenging the weight of the evidence if

granted would permit a second trial.

A claim challenging the sufficiency of the evidence is

a question of law. Evidence will be deemed sufficient

to support the verdict when it establishes each

material element of the crime charged and the

commission thereof by the accused, beyond a

reasonable doubt. Where the evidence offered to

support the verdict is in contradiction to the physical

facts, in contravention to human experience and the

laws of nature, then the evidence is insufficient as a

matter of law. When reviewing a sufficiency claim

the court is required to view the evidence in the ligh t

most favorable to the verdict winner giving the

prosecution the benefit of all reasonable inferences

to be drawn from the evidence.

A motion for new trial on the grounds that the

verdict is contrary to the weight of the evidence,

concedes that there is sufficient evidence to sustain

the verdict. Thus, the trial court is under no

obligation to view the evidence in the light most

favorable to the verdict winner. An allegation that

the verdict is against the weight of the evidence is

addressed to the discretion of the trial court. A new

tr ial should not be granted because of a mere conflict

in the testimony or because the judge on the same

facts would have arrived at a different conclusion. A

trial judge must do more than reassess the

credibility of the witnesses and allege that he would

not have assented to the verdict if he were a juror.

Trial judges, in reviewing a claim that the verdict i s

### J-S43008- 14

- 8 - against the weight of the evidence do not sit as the

thirteenth juror. Rather, the role of the trial ju dge is

to determine that notwithstanding all the facts,

certain facts are so clearly of greater weight that to

ignore them or to give them equal weight with all t he

facts is to deny justice.

Commonwealth v. Smith , 853 A.2d 1020, 1028 (Pa.Super. 2004) (quoting

Commonwealth v. Widmer , 560 Pa. 308, 318-20, 744 A.2d 745, 751- 52

(2000) (internal citations omitted)). See Commonwealth v. Wilson , 825

A.2d 710, 713-14 (Pa.Super. 2003) (holding sufficien cy of evidence review

does not include assessment of credibility; review of wit ness testimony

constitutes weight of evidence challenge; because defendant’s sufficie ncy of

evidence challenge implicated review of witness credibili ty, claim was

actually weight challenge and deemed waived, for fail ure to preserve it in

Pa.R.Crim.P. 607 motion before trial court).

The Crimes Code defines aggravated assault in relevant part as

follows:

§ 2702. Aggravated assault

(a) Offense defined.

ろ A person is guilty of aggravated

assault if he:

(1) attempts to cause serious bodily injury to another, or

causes such injury intentionally, knowingly or recklessly

under circumstances manifesting extreme indifference to

the value of human life;

* * *

18 Pa.C.S.A. § 2702(a)(1). The court must evaluate e ach case on its own

particular facts, but under appropriate circumstances, eve n a single punch to

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the face can constitute aggravated assault. Commonwealth v. Lewis , 911

A.2d 558, 564 (Pa.Super. 2006). Probative circumstan ces in this inquiry

have included evidence that the assailant was dispropor tionately larger or

stronger than the victim, that the assailant had to be restrained from

escalating the attack, that the assailant had a weapon or other implement to

aid the attack, or that the assailant made statements before, during, or after

the attack which might indicate an intent to inflict fu rther injury.

Commonwealth v. Bruce , 916 A.2d 657, 663 (Pa.Super. 2007), appeal

denied , 593 Pa. 754, 932 A.2d 74 (2007). Evidence showing that an

appellant intended to strike a dazed and helpless vict im again can establish

intent to cause serious bodily injury. Id. The Pennsylvania Crimes Code

defines simple assault as follows:

§ 2701 Simple Assault

(a) Offense defined.

— A person is guilty of assault if

he:

(1) attempts to cause or intentionally, knowingly or

recklessly causes bodily injury to another;

(2) negligently causes bodily injury to another with a

deadly weapon;

(3) attempts by physical menace to put another in

fear of imminent serious bodily injury; or

* * *

18 Pa.C.S.A. § 2701(a)(1)-(3).

The Pennsylvania Crimes Code defines the offense of RE AP as follows:

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-

“A person commits a misdemeanor of the second degree if h e recklessly

engages in conduct which places or may place another person in danger of

death or serious bodily injury.” 18 Pa.C.S.A. § 2705 . “Serious bodily injury”

is defined as, “[b]odily injury which creates a substantia l risk of death or

which causes serious, permanent disfigurement, or protracte d loss or

impairment of the function of any bodily member or organ.” 18 Pa.C.S.A . §

2301. A person is guilty of REAP when that person: (1 ) possessed a mental

state of recklessness; (2) committed a wrongful act; and (3 ) created the

danger of death or serious bodily injury in the perfo rmance of the wrongful

act. Commonwealth v. Emler , 903 A.2d 1273, 1278 (Pa.Super. 2006).

This statutory provision was directed against reckless

conduct entailing a serious risk to life or limb out of

proportion to any utility the conduct might have. The

crime of REAP is a crime of assault which requires the

creation of danger. As such, ...there must be an actual

present ability to inflict harm.

Commonwealth v. Reynolds , 835 A.2d 720, 727-28 (Pa.Super. 2003).

“The mens rea for recklessly endangering another person is ‘a conscious

disregard of a known risk of death or great bodily ha rm to another person.’”

Commonwealth v. Martuscelli , 54 A.3d 940, 949 (Pa.Super. 2012).

Section 903(a)(1) of the Crimes Code provides:

§ 903 Criminal Conspiracy

(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 person or persons that they or one

or more of them will engage in conduct which constitute s

such crime or an attempt or solicitation to commit such

crime;

* * *

(b) Scope of conspiratorial relationship.ふ If a person

guilty of conspiracy, as defined by subsection (a) of this

se ction, knows that a person with whom he conspires to

commit a crime has conspired with another person or

persons to commit the same crime, he is guilty of

conspiring with such other person or persons, to commit

such crime whether or not he knows their identity.

18 Pa.C.S.A. § 903(a)(1), (b). To sustain a conviction for criminal

conspiracy, the Commonwealth must establish the defendan t: 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. Jones, supra at 121. Additionally:

Circumstantial evidence may provide proof of the

conspiracy. The conduct of the parties and the

circumstances surrounding such conduct may create a

“web of evidence” linking the accused to the alleged

conspiracy beyond a reasonable doubt. An agreement can

be inferred from a variety of circumstances including, bu t

not limited to, the relation between the parties, kn owledge

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.

Id. at 121-22.

The essence of a criminal conspiracy is the common

understanding that a particular criminal objective is t o be

accomplished. Mere association with the perpetrators,

mere presence at the scene, or mere knowledge of the

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- crime is insufficient. Rather, the Commonwealth must

prove that the defendant shared the criminal intent, i.e.,

that the [defendant] was an active participant in the

criminal enterprise and that he had knowledge of the

conspiratorial agreement. The defendant does not need to

commit the overt act; a co-conspirator may commit the

overt act.

Commonwealth v. Lambert , 795 A.2d 1010, 1016 (Pa.Super. 2002),

appeal denied , 569 Pa. 701, 805 A.2d 521 (2002) (internal citatio ns and

quotation marks omitted) (emphasis added). Circumstan ces such as an

association between alleged conspirators, knowledge of th e commission of

the crime, presence at the scene of the crime, and/or pa rticipation in the

object of the conspiracy, are relevant to prove a conspi racy, when “viewed in

conjunction with each other and in the context in which they occurred.” Id.

After a thorough review of the record, the briefs o f the parties, the

applicable law, and the well-reasoned opinion of the Honorable Chris R.

Wogan, we conclude Appellant’s issues merit no relief. The trial court

opinion comprehensively discusses and properly disposes of t he questions

presented. ( See Trial Court Opinion, filed October 28, 2013, at 2-6 )

(finding: (1) victim identified Appellant as member of group tha t exited

vehicle together; one member of group struck victim in head with brick; one

or more than one member of group struck victim several more times with

brick; all members of group surrounded victim and punche d and kicked

victim while victim lay on ground; assault continued u ntil one member of

group took victim’s pocketbook; victim positively iden tified Appellant as

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-

assailant; victim could not explicitly identify which blows she received from

individual group members, but evidence was sufficient to establish

Appellant’s involvement in assault; s everity of blows rose to level required

for aggravated assault, even if Appellant did not use brick to beat victim;

Appellant was properly convicted of aggravated assault , simple assault,

REAP; (2) victim identified Appellant as having exited vehicle with other

women; victim’s testimony that all women from vehicle surrounded her

during assault is sufficient for finding that Appellant was engaged in conduct

of assault; all women, including Appellant, left scene of crime together in

vehicle they arrived in af ter they took victim’s pocketbook; victim’s

testimony that Appellant exited van with other women , remained present at

scene, surrounded victim, and fled from scene with other women sufficiently

established Appellant did aid in commission of crime; Ap pellant was properly

convicted of conspiracy to commit aggravated assault; (3) testimony by

victim and police officers was sufficient to establish crim e; record does not

show verdict so contrary to evidence as to shock one’s sense of justice; new

trial is not imperative and justice was properly served) . 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: 8/4/2014Circulated 07/08/2014 03:51 PMCirculated 07/08/2014 03:51 PMCirculated 07/08/2014 03:51 PMCirculated 07/08/2014 03:51 PM