Com. v. Nhep, T.

C
J-S52011-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    TONY NHEP                                  :
                                               :
                       Appellant               :   No. 3458 EDA 2018

       Appeal from the Judgment of Sentence Entered November 1, 2018
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0007868-2017


BEFORE:      PANELLA, P.J., McCAFFERY, J., and STEVENS, P.J.E.*

MEMORANDUM BY PANELLA, P.J.:                          FILED: MARCH 15, 2021

        Tony Nhep appeals from the judgment of sentence entered on

November 1, 2018, in the Court of Common Pleas of Philadelphia County,

made final by the denial of post-sentence motions on November 8, 2018. The

trial court imposed an aggregate term of five to ten years’ incarceration,

followed by two years’ probation, after a jury convicted him of burglary

(overnight accommodations, person present), criminal conspiracy (burglary),

and possession of an instrument of crime (“PIC”).1 The court also found him

guilty of one count of persons not to possess a firearm (“Section 6105”).2 On


____________________________________________


*   Former Justice specially assigned to the Superior Court.

1   18 Pa.C.S.A. §§ 3502(a)(1)(i), 903, and 907(a), respectively.

2   18 Pa.C.S.A. § 6105(a)(1). Nhep was ineligible due to a prior conviction.
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appeal, Nhep challenges the sufficiency of the evidence supporting his Section

6105 conviction and the verdict was against the weight of the evidence as to

all his convictions. After careful review, we affirm.

        Nhep’s convictions stem from a burglary that took place on June 30,

2017. On that date, at approximately 11:00 p.m., the complainant, Yuexiao

Jiang, was in one of the upstairs bedrooms of her South Philadelphia row home

with her mother-in-law, her two young children, and her four-year-old

nephew. Jiang’s son heard the bedroom door open and observed a person’s

head peep inside. The son asked Jiang if his grandfather had come home.

Jiang went into the hallway and looked down the stairs. She saw the back of

an unfamiliar man leaving the house.

        Jiang then called her husband and father-in-law, and asked them if they

were recently home and whether they had gone outside. Both men indicated

that they had not been home. Jiang’s husband sent her a clip of video

surveillance footage from inside the home, which revealed that three unknown

men had been in the residence.3 The couple then called the police.

        Subsequently, on July 27th, Probation and Parole Agent Starnetta

Streaty viewed surveillance footage of the burglary, and she identified Nhep

as one of the three men inside the home. She knew Nhep personally and had

met him approximately ten times between January and June of 2017. She also



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3   The men did not take anything from the residence.

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identified two of his tattoos from still shots of the video. Police Officers Chris

Lai and Brian Ho positively identified Nhep’s cohorts, David Men and Vutha

Mok, as the other men in the surveillance video. The video also showed that

Mok had a firearm in his right hand as he walked around the home.

        All three men were arrested and charged with numerous crimes

following the burglary. Nhep and Men were tried jointly4 before a jury and

adjudged guilty of burglary, criminal conspiracy, and PIC on August 17, 2018.

Previously agreeing to bifurcate their cases as to the Section 6105 charge and

to waive their right to a jury trial on that offense, Nhep and Men were found

guilty of the gun possession crime. Nevertheless, in finding them guilty, the

court stated the following:

               I want to put something on the record about this. The
        prosecution theory of guilt on the [Section 6105] charge in this
        case rests entirely on the theory of conspiratorial liability for this
        possessory offense. The evidence at the trial made it clear, or at
        least there was no evidence at the trial that suggested that either
        Mr. Men or Mr. Nhep, themselves, possessed a firearm at any time
        during the course of this case.

              As counsel is aware, under present Pennsylvania law, which
        I am constrained to follow, as I charged the jury, the defendants
        are criminally liable for the possession of a firearm even though it
        was carried by one of their co-conspirators. This is a verdict, which
        I must say, I regret to have to enter, because it is contrary to my
        view of what the law ought to be and where the law is going. But
        I have no choice under the existing law but to find you, Mr. Men,
        and you, Mr. Nhep, guilty of the [Section 6105] charges.

N.T., 8/17/2018, at 90.


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4   Mok pled guilty to burglary and weapon offenses on July 18, 2018.

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        On November 1, 2018, the court sentenced Nhep to concurrent terms

of five to ten years for the burglary and conspiracy convictions, following by

two years of probation. The court also imposed a term of two years’ probation

on the Section 6105 offense, to be served concurrently with the probation for

the other crimes. No further penalty was imposed on the PIC conviction.

        Nhep filed a post-sentence motion, raising challenges to the sufficiency

of the evidence and the discretionary aspects of sentencing. The trial court

denied the motion on November 8, 2018. This timely appeal followed.5, 6

        Following Nhep’s notice of appeal, his counsel filed three extensions of

time to file an appellate brief. After the third request, on September 5, 2019,

this Court issued a per curiam order granting the extension but stating that

no further extensions would be permitted absent extraordinary extensions.

After not receiving an appellate brief by the allotted deadline, this Court

dismissed Nhep’s appeal on November 4, 2019. Nhep subsequently filed an

application to reinstate his appeal, which this Court granted on December 4,

2019. We also directed the appointment of new counsel. The trial court

appointed new counsel, who subsequently filed an appellate brief on March

26, 2020. The matter is now properly before us.


____________________________________________


5The trial court directed Nhep to file a concise statement of errors complained
of on appeal pursuant to Pa.R.A.P. 1925(b) on December 6, 2018. Nhep
complied with the order by filing a statement on December 28, 2018.
Thereafter, the trial court issued a Pa.R.A.P. 1925(a) opinion on May 10, 2019.

6   Men also filed a direct appeal, which is docketed at No. 307 EDA 2020.

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      In Nhep’s first argument, he claims there was insufficient evidence to

support his Section 6105 conviction because the Commonwealth’s evidence

demonstrated that he never held a gun during the incident at issue. See

Appellant’s Brief, at 22. In support of this assertion, he points to the

surveillance video, which showed Mok holding the purported handgun, but

neither Nhep nor Men ever touched the gun. See

id., at 23-24.

      Furthermore, the crux of Nhep’s argument is that there was insufficient

evidence to support his Section 6105 conviction based upon the theory of co-

conspirator liability. See

id., at 27-35.

In support of this assertion, Nhep relies

on Commonwealth v. Chambers, 

188 A.3d 400

(Pa. 2018). In Chambers,

the defendant and the victim were involved in a physical altercation with other

individuals watching. At one point, one of these individuals sprayed the victim

in the face with mace. The defendant was charged and eventually found guilty

by the trial court of, inter alia, aggravated assault with a deadly weapon,

conspiracy, and PIC. The trial court explained that for both aggravated assault

and PIC, because the defendant never used or possessed the mace, his

convictions were premised upon a theory of conspiratorial liability.

      After granting the defendant’s petition for allowance of appeal, the

Pennsylvania Supreme Court explained that the “the principle of conspiratorial

liability [is] a theory in which one conspirator is criminally liable for the

substantive offenses committed by other members of the conspiracy that are




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undertaken in furtherance of the conspiracy.”

Id., at 408

(citations omitted).

The Supreme Court further stated:

      This form of vicarious criminal liability is not codified in
      Pennsylvania’s Crimes Code. See 18 Pa.C.S. § 306 (outlining the
      circumstances in which a person can be liable for conduct of
      another, which contains no mention of the concept of
      conspiratorial liability); § 903 (setting forth the elements of the
      substantive offense of criminal conspiracy, and again, omitting
      any reference to an offender’s liability for acts committed by
      others in furtherance of the conspiracy). Yet, the maxim routinely
      is utilized in courtrooms across Pennsylvania as a basis to convict
      one person for the acts of another, and is faithfully applied by this
      Court.

Chambers, 188 A.3d at 408

(some citations omitted).

      The Chambers Court stated that an issue in the case was “whether such

common law liability exists in our statutorily codified system of substantive

criminal law.”

Id., at 409.

Nevertheless, the Court did not decide the issue

because it found that before that question could be answered, the Court must

first examine whether the record supported the existence of a conspiracy and

based on the facts in that case, the petitioner was not involved in a conspiracy

pursuant to 18 Pa.C.S.A. § 903. See

id. Turning to the

present matter, Nhep complains that like in Chambers,

conspiratorial liability is no longer viable in this Commonwealth, and therefore,

it should not apply to his case. See Appellant’s Brief, at 32. Nhep pointed to

the trial court’s comments at sentencing as evidence of agreement with this

notion.

Id., at 33;

see also N.T., 8/17/2018, at 90.




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        Lastly, arguing in the alternative, Nhep complains that even if

conspiratorial liability was viable, it could not form the basis for his Section

6105 conviction. See

id. He states the

evidence did not establish that Mok,

who possessed the gun, was disqualified from doing so under Section 6105

and therefore, Nhep should not be convicted of the same crime.

        Before we may address the substantive issue, we must address whether

Nhep has properly preserved this argument. Notably, Nhep never alleged in

his concise statement that his Section 6105 conviction was insufficient based

on the notion that the theory of co-conspirator liability is no longer viable or

that because the evidence did not establish that Mok was not disqualified from

doing so under Section 6105, Nhep should not be convicted of the same crime.

Rather, in his concise statement, Nhep set forth the following issues:

        1. The verdict was against the weight and sufficiency of the
        evidence.

        2. The verdict of gun possession should not be upheld on legal
        grounds because [Nhep] was never in possession of firearm.

Appellant’s Concise Statement of Errors Complained of on Appeal in

Accordance with Pa.R.A.P. 1925, 12/28/2018, at 1.7


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7   In a footnote to his concise statement, Nhep stated:

        In this Statement, Appellant has tried in good faith to strike the
        proper balance between providing the court with the required
        notice and doing so in a concise manner. Should the court remain
        unsure in any respect about the nature of any of the issues that



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         It is clear from comparing both his concise statement and his appellate

brief that Nhep is now presenting new theories regarding the sufficiency of the

evidence as to his Section 6105 conviction on appeal than he did with the trial

court.

         However, it is well-settled that issues not included in a court-ordered

concise     statement     are   deemed         waived   on   appeal.   See   Pa.R.A.P.

1925(b)(4)(vii); see also Commonwealth v. Jones, 

191 A.3d 830

, 834–

835 (Pa. Super 2018) (waiving defendant’s challenge identification testimony

on appeal under different theories than those previously raised in concise

statement because trial court did not have opportunity to review those

theories). Accordingly, we conclude that to the extent Nhep raises his

sufficiency argument in terms of these newly raised theories, it is waived.




____________________________________________


         Appellant wishes to pursue on appeal, counsel would be happy to
         supplement this Statement upon order of the Court.

Appellant’s Concise Statement of Errors Complained of on Appeal in
Accordance with Pa.R.A.P. 1925, 12/28/2018, at 1 n.1. The court did not
request Nhep to supplement the statement.

       Furthermore, it merits mention that in his post-sentence motion, Nhep
set forth the following relevant claims: (1) the evidence was insufficient to
prove his identity as one of the perpetrators; and (2) the evidence was
insufficient to prove him guilty of a Section 6105 offense because he did not
possess a gun during the incident. See Defendant’s Post-Sentence Motion,
11/8/2018, at ¶¶ 2-3.

                                           -8-
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      Therefore, we confine our analysis to the following claim – whether there

was sufficient evidence to support Nhep’s Section 6105 conviction because the

evidence demonstrated that he never held a gun during the incident.

      Our standard of review regarding a sufficiency of the evidence claim is

well-settled:

      The standard we apply ... is whether viewing all the 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 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 witnesses and the
      weight of the evidence produced, is free to believe all, part or none
      of the evidence.

Commonwealth v. Edwards, 

229 A.3d 298

, 305-306 (Pa. Super. 2020)

(quotation and internal brackets omitted).

      In order to convict an individual pursuant to Section 6105, the

Commonwealth must prove beyond a reasonable doubt that the individual

possessed a firearm and that he was convicted of an enumerated offense that

prohibits him from, inter alia, possessing, using, and controlling the firearm.

See 18 Pa.C.S.A. § 6105(a)(1). A “firearm” is defined as any weapon that is


                                      -9-
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“designed to or may readily be converted to expel any projectile by the action

of an explosive or the frame or receiver of any such weapon.” 18 Pa.C.S.A. §

6105(i).

      Here, the trial court indicated that because Nhep “did not physically

possess the gun, the Commonwealth proceeded under a theory of constructive

possession.” Trial Court Opinion, 5/10/2019, at 8.

      Regarding constructive possession, we are guided by the following:

      Constructive possession is a legal fiction, a pragmatic construct to
      deal with the realities of criminal law enforcement. Constructive
      possession is an inference arising from a set of facts that
      possession of the contraband was more likely than not. We have
      defined constructive possession as conscious dominion. We
      subsequently defined conscious dominion as the power to control
      the contraband and the intent to exercise that control. To aid
      application, we have held that constructive possession may be
      established by the totality of the circumstances.

Commonwealth v. Brown, 

48 A.3d 426

, 430 (Pa. Super. 2012).

      In Commonwealth v. Knox, 

105 A.3d 1194

(Pa. 2014), the

Pennsylvania Supreme Court opined that where a weapon is utilized in

furtherance of a crime, constructive possession of that weapon is attributable

to a co-conspirator despite who actually possessed it. See

id., at 1197-1198.

Therefore, to impute constructive possession to Nhep, the Commonwealth was

required to prove that Nhep and Mok were involved in a criminal conspiracy.

      In order to convict a defendant of criminal conspiracy,

      the Commonwealth must prove: (1) the defendant intended to
      commit or aid in the commission of the criminal act; (2) that the
      defendant entered into an agreement with another to engage in
      the crime; and (3) the defendant or one or more of the other co-

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      conspirators committed an overt act in furtherance of the agreed
      upon crime. As it is often difficult to prove an explicit or formal
      agreement, the agreement generally is established via
      circumstantial evidence, such as by the relations, conduct, or
      circumstances of the parties, or the overt acts on the part of co-
      conspirators.

Commonwealth v. Le, 

208 A.3d 960

, 969 (Pa. 2019). See also 18 Pa.C.S.A.

§ 903.

      Applying those principles, the trial court found that the Commonwealth

had presented sufficient evidence of conspiracy:

      [Nhep] was part of a conspiracy to burglarize the complainant’s
      home. [Nhep]’s co-conspirator/accomplice, Vutha Mok, visibly
      possessed a firearm during the course of the burglary. [Nhep] and
      Men were beside Mok when he entered and walked around the
      complaint’s home, gun in hand. They were aware of Mok’s illegal
      possession of a firearm. Moreover, they benefitted from the
      “protection” the gun afforded them in the event they were
      confronted by the homeowners.

Trial Court Opinion, 5/10/2019, at 8-9.

      We agree with the court’s well-reasoned analysis. Moreover, Nhep does

not dispute that the evidence was sufficient to conclude an armed burglary

transpired, that he took part in the crime, and that Mok did possess a firearm.

Viewed in the light most favorable to the Commonwealth as the verdict winner,

the evidence was sufficient to find that Nhep constructively possessed the gun

at issue as a co-conspirator. Accordingly, his sufficiency claim fails.

      In Nhep’s second argument, he claims the verdict was against the

weight of the evidence and so contrary to the evidence that his convictions

shock one’s sense of justice. See Appellant’s Brief, at 35-39. Like with Nhep’s


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sufficiency argument, we must determine whether he has properly preserved

this claim.

       It is well-settled law that a defendant must raise a claim asserting the

verdict is against the weight of the evidence before the trial court, either orally

or in writing, at or before sentencing or in a written post-sentence motion.

See Pa.R.Crim.P. 607. “The purpose of this rule is to make it clear that a

challenge to the weight of the evidence must be raised with the trial judge or

it will be waived.”

Id., Comment. Here, Nhep

did neither.8 Therefore, he

waived any potential weight of the evidence claim. Commonwealth v.

Jones, 

191 A.3d 830

, 834-835 (Pa. Super. 2018) (challenge to weight of

evidence must be raised in timely pre or post-trial motion). Accordingly, we

need not address Nhep’s second argument any further.

       Judgment of sentence affirmed. Jurisdiction relinquished.




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8 It merits mention that Nhep admitted he did not raise a weight claim in any
post-sentence motion, but presented it for the first time in his concise
statement. See Appellant’s Brief, at 36-38. Nevertheless, he indicates that he
is preserving the waived argument as an ineffective assistance of counsel
claim to be raised on collateral review. See

id., at 38-39;

see also
Commonwealth v. Holmes, 

79 A.3d 562

(Pa. 2013) (holding claims of
ineffective assistance of counsel should be deferred until collateral review
pursuant to the Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546).

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/15/21




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