Commonwealth v. Kelly
78 A.3d 1136
| Pa. Super. Ct. | 2013Background
- On June 13, 2008, Jahmel Kelly and Philip Hummel approached a 16‑year‑old victim and his girlfriend; Kelly opened fire, seriously wounding the victim and ending his ability to play football.
- Kelly disappeared before trial; he and Hummel were tried in absentia and a jury convicted Kelly of attempted murder, aggravated assault, criminal conspiracy (general), carrying a firearm without a license, and person not to possess a firearm.
- Kelly was sentenced in absentia to concurrent and consecutive terms totaling 18 to 37 years; he did not appeal timely but had his direct‑appeal rights reinstated via PCRA and then appealed.
- Kelly challenged (1) the sufficiency of the evidence for several convictions and (2) the propriety of being tried in absentia.
- The Commonwealth relied largely on the victim’s in‑court identification and circumstantial evidence of Kelly’s willful absence (failed service, returned letter, custody and hospital checks).
- The trial court had sua sponte attempted to vacate the conspiracy sentence under merger principles; the Superior Court reviewed sufficiency and in‑absentia issues and addressed merger, ultimately vacating the conspiracy sentence.
Issues
| Issue | Plaintiff's Argument (Commonwealth) | Defendant's Argument (Kelly) | Held |
|---|---|---|---|
| Sufficiency of the evidence for attempted murder, aggravated assault, conspiracy, and firearms offenses | Evidence (victim ID at trial plus circumstantial proof) supports convictions; factfinder may credit victim | Victim was inconsistent with police/preliminary hearing statements; testimony unreliable so evidence insufficient | Convictions affirmed — evidence sufficed; credibility was for the jury, not appellate reweighing |
| Trial in absentia: was Kelly absent "without cause"? | Commonwealth showed by preponderance Kelly willfully absented himself (failed service, returned defense letter, counsel‑signed subpoena, custody/hospital checks) | Kelly argued he lacked notice of trial date and thus was not absent without cause (relied on Hill and Sullens) | Trial court did not err; sufficient evidence supported finding Kelly knowingly and voluntarily absented himself |
| Legality/merger of conspiracy sentence under 18 Pa.C.S. § 906 | Commonwealth did not brief; trial court sua sponte vacated conspiracy sentence; sentencing papers indicate conspiracy to commit aggravated assault | Kelly did not specifically raise merger but court may address legality of sentence sua sponte | Superior Court vacated the conspiracy sentence because the jury’s verdict was ambiguous and conspiracy to murder (if meant) would merge with attempted murder; remand not required because sentence was concurrent |
| Judicial consideration of unraised merger argument | Commonwealth urged forfeiture by failure to raise; appellee argued merger is a legality issue | Kelly benefitted from court addressing merger sua sponte because merger implicates legality of sentence | Court addressed merger sua sponte (permitted) and vacated conspiracy sentence as required by legality/merger principles |
Key Cases Cited
- Commonwealth v. Brown, 52 A.3d 320 (Pa. Super. 2012) (sufficiency review standard)
- Commonwealth v. Hill, 737 A.2d 255 (Pa. Super. 1999) (absence without cause analysis when defendant unaware of trial date)
- Commonwealth v. Sullens, 619 A.2d 1349 (Pa. 1992) (trial in absentia upheld where defendant knew trial date)
- Commonwealth v. Wilson, 712 A.2d 735 (Pa. 1998) (defendant on bail must appear or advise court; presence is expected absent valid excuse)
- Commonwealth v. Jacobs, 39 A.3d 977 (Pa. 2012) (merger and sentencing for multiple inchoate crimes)
- Commonwealth v. Riley, 811 A.2d 610 (Pa. Super. 2002) (ambiguous general verdict on conspiracy favors defendant and may require sentencing only for less serious underlying offense)