OPINION BY WECHT, J.
Christopher Thomas ["Appellant"] appeals his June 30, 2011 judgment of sentence. On March 21, 2011, a jury convicted Appellant of simple assault,
The trial court summarized the factual history of this case as follows:
Trial Court Opinion ["T.C.O."], 12/01/11, at 3-7 (citations to Notes of Testimony omitted).
As noted above, Appellant was found guilty of simple assault, recklessly endangering another person, and criminal conspiracy to commit aggravated assault. On March 23, 2011, Appellant filed a motion for extraordinary relief regarding the conspiracy to commit aggravated assault conviction. On June 30, 2011, the trial court denied Appellant's motion and sentenced Appellant to six to twenty months of house arrest and a consecutive three year term of probation. On July 28, 2011, Appellant timely appealed. Appellant timely filed a Pa.R.A.P.1925(b) concise statement of errors complained of on appeal. On December 1, 2011, the trial court filed a Rule 1925(a) opinion.
Appellant raises a single issue for our review:
Appellant's Brief at 4.
Appellant's issue presents a challenge to the sufficiency of the evidence. A claim challenging the sufficiency of the evidence presents a question of law. Commonwealth v. Widmer, 560 Pa. 308, 744 A.2d 745, 751 (2000). We must determine "whether the evidence is sufficient to prove every element of the crime beyond a reasonable doubt." Commonwealth v. Hughes, 521 Pa. 423, 555 A.2d 1264, 1267 (1989). We "must view evidence in the light most favorable to the Commonwealth as the verdict winner, and accept as true all evidence and all reasonable inferences therefrom upon which, if believed, the fact finder properly could have based its verdict." Id.
Our Supreme Court has instructed:
Commonwealth v. Ratsamy, 594 Pa. 176, 934 A.2d 1233, 1236 n. 2 (2007).
Appellant asserts that the evidence was insufficient to sustain his conviction for criminal conspiracy to commit aggravated assault. A criminal conspiracy conviction requires proof of:
Commonwealth v. Galindes, 786 A.2d 1004, 1010 (Pa.Super.2001) (quoting Commonwealth v. Spotz, 562 Pa. 498, 756 A.2d 1139, 1162 (2000)). Circumstantial evidence can include, but is not limited to, the relationship between the parties, the knowledge of and participation in the crime, and the circumstances and conduct of the parties surrounding the criminal episode. Commonwealth v. French, 396 Pa.Super. 436, 578 A.2d 1292, 1294 (1990). "These factors may coalesce to establish a conspiratorial agreement beyond a reasonable doubt where one factor alone might fail." Id. Aggravated assault, the crime underlying Appellant's conspiracy conviction, occurs when a person "attempts to cause serious bodily injury to another, or causes such injury intentionally, knowingly, or recklessly under circumstances manifesting an extreme indifference to the value of human life." 18 Pa.C.S.A. § 2702(a)(1). Serious bodily injury is defined
Appellant asserts that the evidence was insufficient to support his conspiracy conviction because neither he nor his co-defendants committed an overt act in pursuit of aggravated assault. Appellant claims that, because he and his co-conspirators did not cause serious bodily injury, the Commonwealth was required to prove that Appellant and his co-conspirators committed an overt act in an
A conviction for conspiracy requires only an intent to commit a crime, an agreement with a co-conspirator, and an overt act in furtherance of the conspiracy. Galindes, 786 A.2d at 1010. The Commonwealth may meet this burden even if the conspirators fail to commit the underlying crime. "Conspiracy to commit a crime and the underlying crime itself are two entirely separate offenses with separate elements required for each." Commonwealth v. Johnson, 719 A.2d 778, 791 (Pa.Super.1998). Therefore, to sustain the conviction for criminal conspiracy, it need not be established that Appellant committed aggravated assault, provided that Appellant had the intent to do so.
Appellant is incorrect in asserting that, because the jury acquitted Appellant of aggravated assault, we must deem the evidence insufficient to sustain a finding of conspiracy to commit aggravated assault. "[T]he mere fact that appellant was acquitted of the underlying crime is irrelevant to his guilt on the conspiracy charge." Johnson, 719 A.2d at 791 (Pa.Super.1998). Further, "[a]n acquittal cannot be interpreted as a specific finding in relation to some of the evidence." Commonwealth v. Bricker, 397 Pa.Super. 457, 580 A.2d 388, 389 (1990).
Appellant avers: "Had Appellant been found guilty of conspiracy to commit simple assault, Appellant would have no objection as a matter of law." Appellant's Brief at 17. Appellant misses the point. "[T]he ultimate gradation of the crime accomplished does not in and of itself delimit the degree of crime originally planned — the crime ultimately accomplished does not retroactively limit the scope of the original conspiracy." Commonwealth v. Weimer, 602 Pa. 33, 977 A.2d 1103, 1105 (2009). The jury may have found that Appellant and his co-conspirators had the intent to commit aggravated assault, and may further have found that they failed in the commission of the crime. Or the jury may simply have reached an inconsistent verdict. Inconsistent verdicts are permissible:
Commonwealth v. Stokes, 38 A.3d 846, 855 (Pa.Super.2011) (quoting Commonwealth v. Frisbie, 889 A.2d 1271, 1273 (Pa.Super.2005) (internal citations omitted)).
Regardless, our inquiry remains the same, notwithstanding Appellant's attempt to reframe the issue. In order to sustain a conviction of criminal conspiracy to commit aggravated assault, the Commonwealth need only establish intent to commit or aid in the commission of aggravated assault, an agreement with a co-conspirator, and an overt act in furtherance of the conspiracy. Galindes, 786 A.2d at 1010. We have found the evidence sufficient to sustain a conviction for conspiracy to commit aggravated assault in circumstances similar to the case before us.
In French, four defendants were convicted of various crimes, including criminal conspiracy to commit aggravated assault. 578 A.2d at 1293-94. The group included two siblings and their paramours. Id. at 1293. The four defendants assaulted a lone man, pinned him to the ground, and continued to beat him. Id. When police arrived at the scene, the four defendants turned their attack against the officers. Id. We determined that all individuals involved acted as a group in concert. Id. at 1294. We held that "the actors' relationships and their conduct before, during and after the criminal episode established a unity of criminal purpose sufficient for the jury to find a conspiracy beyond a reasonable doubt." Id. at 1294-95.
In Commonwealth v. Poland, the defendant, along with a group of other individuals, attacked a passer-by on the subway, battering her face and knocking out one of her teeth. 26 A.3d 518, 519 (Pa.Super.2011). Together, the group fled the scene of the attack. Id. at 520. Shortly thereafter, the victim and a police officer identified the individuals who participated in the attack. Id. at 520. In Poland, as in French, we determined that the group of attackers had established a "unity of criminal purpose." Id. at 523; see also French, 578 A.2d at 1294-95. We held that acting together before, during, and after an attack on another individual suffices to show a unity of criminal purpose for purposes of sustaining a conviction for criminal conspiracy to commit aggravated assault. Id.
In the present case, Appellant and his co-conspirators established a unity of criminal purpose similar to that shown by the defendants in French and Poland. See Poland, 26 A.3d at 523; French, 578 A.2d at 1294-95. Appellant and four other individuals approached the victim together from behind, and one of the defendants placed a cold, metal object against her waist. The victim testified that all five individuals punched her repeatedly on her head, face, and the entire left side of her body. Appellant and the other individuals left the scene of the incident together. When police arrived, the victim identified the five individuals walking away from the scene together. Notes of Testimony ["N.T."], 3/11/11, at 23-32. Officers close to the scene of the incident apprehended four of the five individuals, including Appellant. N.T., 3/16/11 Vol.2, at 92-93.
The Commonwealth presented evidence that defendant and his co-conspirators approached the victim as a group, beat the victim, walked away from the scene together, and were arrested together. This evidence was sufficient to establish that Appellant and the four additional co-conspirators acted with a "unity of criminal purpose." French, 578 A.2d at 1294-95. Additionally, all individuals involved in the
Appellant compares the facts of the case before us to several inapposite cases that discuss materially different facts and that do not contemplate a conviction for conspiracy. See Commonwealth v. Robinson 817 A.2d 1153 (Pa.Super.2003) (evidence insufficient to sustain aggravated assault conviction where defendant's accomplice struck victim in the back with a handgun); Commonwealth v. Bryant, 282 Pa.Super. 600, 423 A.2d 407 (1980) (evidence insufficient to sustain aggravated assault conviction where defendant threw one victim to the ground and kicked different victim once); Commonwealth v. Alexander, 477 Pa. 190, 383 A.2d 887 (1978) (evidence insufficient to sustain aggravated assault conviction where defendant punched victim's face once). Appellant's discussion of cases involving a defendant who inflicted a single punch or kick to a victim is irrelevant. Appellant was with a group of four other individuals who repeatedly kicked and punched the victim, causing her to collapse to the ground, where they continued their attack. We find the evidence sufficient to sustain the conspiracy to commit aggravated assault conviction.
Judgment of sentence affirmed. Jurisdiction relinquished.