Commonwealth v. Thoeun Tha
64 A.3d 704
| Pa. Super. Ct. | 2013Background
- Appellant Thouen Tha appeals a June 30, 2011 judgment of sentence following a June 2011 conviction for criminal conspiracy to commit aggravated assault.
- The incident occurred on September 22, 2009, when Hang was assaulted by five individuals; three were Cambodian and two were Black males; Hang identified three Cambodians including Tha.
- Hang’s boyfriend Cao identified Tha and others; he observed the attack from a window and testified to the participants.
- Police Officer Schoch and Officer Schoeniger responded, detained four suspects, and recovered a gun from Carlton Finney; one female suspect fled.
- Appellant denied participation; co-defendants testified; trial court admitted and excluded various evidence; verdict was for conspiracy to commit aggravated assault with Appellant receiving five years’ probation upon sentencing.
- Appellant timely appealed raising sufficiency, inconsistency/weight, mistrial/identification/severance/ineffective assistance, jury instructions on identification and flight, and use of the term “assault.”
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence for conspiracy to commit aggravated assault | Commonwealth | Tha | Sufficient evidence supporting conspiracy conviction |
| Conspiracy verdict inconsistent with co-defendants or weight/grading | Tha | Tha | Inconsistent verdicts allowed; conspiracy felony proper; weight argument waived; Riley inapplicable |
| Mistrial/severance/ineffective assistance related to identification | Tha | Tha | Waived or unpreserved; severance and ineffective-assistance claims rejected |
| Jury instruction on identification and flight | Tha | Tha | Flight instruction proper; curative identification instruction waived by agreement to curative instruction |
| Preclusion of referring to incident as an “assault” | Tha | Tha | Waived for lack of proper development of the argument |
Key Cases Cited
- Commonwealth v. Ratsamy, 934 A.2d 1233 (Pa. 2007) (conspiracy elements and standard of review; circumstantial evidence admissibility)
- Commonwealth v. French, 578 A.2d 1294 (Pa. Super. 1990) (circumstantial evidence may establish conspiratorial agreement)
- Commonwealth v. Stokes, 38 A.3d 846 (Pa. Super. 2011) (inconsistent verdicts not reversible; supremacy of jury’s verdict choices)
- Commonwealth v. Frisbie, 889 A.2d 1271 (Pa. Super. 2005) (inconsistent verdicts; legal principle on convictions vs. underlying crimes)
- Commonwealth v. Johnson, 719 A.2d 778 (Pa. Super. 1998) (conspiracy requires intent, agreement, and overt act; underlying crime not required)