Case Information

NON -PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA, ^[1] IN THE SUPERIOR COURT OF PENNSYLVANIA

Appellee

v.

DUNG THACH, No. 3024 EDA 2014

Appeal from the Judgment of Sentence August 7, 2014

In the Court of Common Pleas Philadelphia County

Criminal Division at No: CP- 51 -CR- 0004528 -2013 BEFORE: FORD ELLIOTT, P.J.E., STABILE, and MUSMANNO, JJ. FILED NOVEMBER 08, 2016

MEMORANDUM BY STABILE, J.: Appellant, Dung Thach, appeals from the August 2014 judgment sentence entered the Court of Common Pleas Philadelphia County ( "trial court ") following convictions of aggravated assault, criminal conspiracy, terroristic threats, simple assault, recklessly endangering another person ( "REAP ").1 challenges the sufficiency of the evidence. Upon review, affirm.

The trial court summarized the facts follows: case involved an incident occurred

night of January 2013, at residence located at 4261 A Street Philadelphia. victim, Thuong Damh [ "Damh "], 60 year old man, testified at brought 4621 A Street at 3 o'clock afternoon attend social gathering. []Damh was picked up his 18 Pa.C.S.A. §§ 2702(a)(1), 2701(a)(1), 2705, respectively.

home on the 4900 block of Old York Road in Philadelphia in a car by Thuong Thach [ "Thuong "], the son his friend Khuol Thach [ "Khuol "], and Thuong's girlfriend. A man named Savan also got into the car at the time to be driven to 4621 A Street.

Upon arriving at A Street, []Damh identified four others in attendance at the party; Thai, Ut, and the []Damh was at 4621 A Street for about nine Appellant. hours until around midnight the incident occurred. At midnight, []Damh was sitting on chair in the living room of the residence. Thai was sitting couch to []Damh's right. The was standing behind []Damh. Thuong standing in front []Damh. At that time, Thuong began threaten []Damh, asking him why he did not allow Thuong visit his house previous week, and that he would kill []Damh if he not tell him. When Thuong threatened him, []Damh stood up from the chair where he sitting, at which time Thai kicked him in the ribs and stood up and punched him in left eye. []Damh then hit in the back of the head which fractured his skull. After blow his head, []Damh fell to the ground, at which point, Thai, Thuong, and the Appellant continued hit and kick him, after which, []Damh passed out. After []Damh regained consciousness, Savan assisted him getting home. When []Damh arrived at his home, his injuries were extensive. He completely numb, was bleeding from the head and eyes, and his mouth []Damh believed that would die that night. swollen. His wife called an ambulance take him hospital. Upon arriving at the hospital, []Damh had surgery his head and was placed into an unconscious state a week. Police detectives arrived at the hospital spoke with Mrs. Damh, at which point she told them everything she knew as well as fact [Damh] had left the house wearing knit cap but returned without it. After speaking with Mrs. Damh, Detective Hughes obtained a warrant to search house where the incident occurred. At time, Detective Hughes recovered knit cap with []Damh's name written it back refrigerator of the house.

Trial Court Opinion, 8/26/2015, 2 -3 (internal citations omitted). trial court summarized the procedural history follows:

On January police arrested Appellant,[] for Attempted Murder, Aggravated Assault, Criminal Conspiracy, Terroristic Threats, Simple Assault, [REAP]. On July waived right jury proceeded to bench trial before th[e trial

J-S44019-16 c]ourt. On date, the [trial c]ourt found Appellant guilty of [a]ggravated [a]ssault (F -1), [c]riminal [c]onspiracy (F -1), [t]erroristic [t]hreats (M -1), [s]imple Assault (M -2), and [REAP] (M -2).

On August 7, 2014, the [trial c]ourt sentenced Appellant four to eight years of incarceration on the charge of [a]ggravated [a]ssault and two four years of incarceration on the charge of [c]riminal [c]onspiracy to run consecutively for a cumulative sentence of six to twelve years of incarceration. [s]imple [a]ssault charge merged with [a]ggravated [a]ssault and the Appellant sentenced to further penalties on charges of [t]erroristic [t]hreats and [REAP]. On August Appellant filed [p]ost -[s]entence [m]otions which were denied [trial court] without a hearing on August 2014.

Appellant filed this timely appeal on August 29, 2014. On November 2014, the [trial court] ordered file Pa.R.A.P. 1925(b) [s]tatement Appellant [e]rrors [c]omplained of on [a]ppeal within days. Appellant filed Pa.R.A.P. 1925(b) [s]tatement of [e]rrors [c]omplained of [a]ppeal on November 24, 2014 with a request file [s]upplement[al] 1925(b) [s]tatement [n]otes of [t]estimony became available. All [n]otes of [t]estimony became available April 2015 not file [s]upplemental 1925(b) [s]tatement.

Id. at 1-2. raises sole issue review.

Was not the evidence support the conviction [a]ggravated [a]ssault, [c]riminal [c]onspiracy, [s]imple [a]ssault, [t]erroristic [t]hreats [REAP] where the punch complainant failed see allegedly thr[e]w or any act of conspiracy between assailants? Appellant's Brief 3. Court's standard of review sufficiency of the evidence well

established.

As general matter, our standard of review of sufficiency claims requires evaluate the record light most favorable winner giving the prosecution the benefit all reasonable inferences evidence. Evidence

J-S44019-16 will be deemed sufficient support when it establishes each material element crime charged commission thereof by accused, beyond reasonable doubt. Nevertheless, the Commonwealth need not establish guilt mathematical certainty. [T]he facts circumstances established by the Commonwealth need not be absolutely incompatible with the defendant's innocence. Any doubt about the defendant's guilt is be resolved fact finder unless the evidence is so weak inconclusive that, matter of law, probability fact can be the combined circumstances.

Commonwealth v. Mauz, 122 A.3d 1039, 1040 -41 (Pa. Super. 2015) (quoting Commonwealth v. Rahman, A.3d 500 -501 (Pa. Super. 2013)). However, order to address challenge the sufficiency of the evidence, it must preserved appeal. See Commonwealth v. Tyack, 128 A.3d 254, 260 (Pa. Super. 2015).

If [a]ppellant wants preserve the evidence insufficient, then the 1925(b) statement needs to specify the element or elements upon which the evidence insufficient. Court can then analyze the elements [Where a] 1925(b) statement [] or elements appeal. does not specify the allegedly unproven elements[,] . . . the sufficiency issue waived [on appeal].

Id. (quoting Commonwealth v. Williams, 959 A.2d 1252, 1257 (Pa. Super. 2008) (quoting Commonwealth v. Flores, 921 A.2d 522 -523 (Pa. Super. 2007))).

In the matter sub judice, Appellant's 1925(b) statement failed specify the element or elements upon which the evidence insufficient. statement asserts the following boilerplate language

[t]he trial court erred when it found evidence [a]ggravated sufficient support the conviction of [a]ssault, [c]riminal [c]onspiracy, [t]erroristic [t]hreats, [s]imple [a]ssault, [REAP]. evidence failed establish [Appellant] guilty beyond reasonable doubt any of the above stated charges.

-4

J-S44019-16 Rule 1925(b) Statement, 11/24/2014, ¶ 3(a). Appellant's failure specify the element or elements upon which evidence was insufficient extends each individual offense he challenges appeal. In his concise statement, Appellant requested the ability amend his concise statement upon the receipt of the notes of testimony; however, Appellant never attempted to amend his statement upon his receipt of the notes of testimony. Accordingly, we conclude Appellant did not preserve his claims adequately for appellate review are waived. See Tyack, 128 A.3d at 260.

Nonetheless, despite Appellant's failure specify the elements of each crime that he believes the evidence was support, our review of Appellant's brief indicates that his challenge the sufficiency of offenses based upon single contention that the Commonwealth not prove beyond reasonable doubt that he struck the victim the back of the head. Appellant contends the victim conceded was unable to see punch that struck him back head, but was certain that was individual struck him. To extent this argument may address some element each of the crimes which was convicted, find lacks merit.

As noted court, the evidence established standing behind victim when the victim struck back his head causing skull fracture. If the only person standing behind victim struck from behind, especially given the

J-S44019-16 circumstances under which this attack occurred, reasonable inference can drawn it who struck victim from behind. Appellant's actions immediately thereafter, namely, joining cohorts in hitting kicking the victim after fell ground, corroborate the victim's identification as perpetrator of the skull fracture. Viewing the evidence light most favorable the prosecution winner giving the prosecution the benefit reasonable inferences be from the evidence, conclude, extent we may address the evidence prove struck

the victim behind, to have merit.

Judgment of sentence affirmed.

Judgment Entered.

J: seph D. Seletyn,

Prothonotary

Date: 11/8/2016

-6