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Commonwealth of Pennsylvania v. Thoeun Tha

April 2, 2013

COMMONWEALTH OF PENNSYLVANIA APPELLEE
v.
THOEUN THA APPELLANT



Appeal from the Judgment of Sentence of June 30, 2011 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0001303-2010

The opinion of the court was delivered by: Wecht, J.

BEFORE: SHOGAN, J., WECHT, J., and STRASSBURGER, J.*fn1

OPINION BY WECHT, J.

Thouen Tha ["Appellant"] appeals her June 30, 2011 judgment of sentence. On March 21, 2011, a jury convicted Appellant of criminal conspiracy to commit aggravated assault.*fn2 On June 30, 2011, Appellant was sentenced to five years' probation. We affirm.

The trial court summarized the history of this case as follows:

Testifying through a Cambodian interpreter, the complainant Dany Hang (Hang) recounted that in the early evening of September 22, 2009, she left her apartment in the 5700 block of North 5th Street to retrieve a baby bottle from her car, which was parked on the street. When bending down into the car to find the bottle, she felt something cold against her waist and heard someone say that if she turned around she would be shot.

She was then punched and kicked by five people. She saw that three of her assailants were Cambodian and that the other two were black males. From the stand, she identified the Cambodians as Thoeun Tha, Rithy Tha and Thea Tha. She did not recognize the black males and could not remember their faces.

Rithy Tha was the first to punch her. Then the other four people joined in. She fell to the ground after multiple blows and her assailants began to kick her. She called to Vu Cao, her boyfriend, who was in the apartment they shared with her toddler son. She remembered that someone said, "Right now this is all we're going to hit you. Next time we're going to shoot you" and then the five walked away.

Bloodied, Hang stood up, moved toward the intersection, and called out for help; two police officers who happened to be parked in the parking lot of a school at that location heard her cries. Hang directed the two officers' attention to five people walking down the street, indicating that they had assaulted her. She remembers an officer placing Thea Tha in a police car. She fainted and awoke in the hospital.

Also testifying through an interpreter, Hang's boyfriend, Vu Cao (Cao), said that when he heard Hang call for him, he looked out from the apartment kitchen window on the second floor and saw five people; two of whom were pulling Hang's hair and punching her. He ran downstairs, deposited the child with the landlord who was on the first floor and went outside. He encountered the police who were responding to Hang's cries and told them that the five people who were walking away had assaulted Hang. He testified that he recognized Thea Tha and Thoeun Tha among the five. From the stand, he identified the males as Rithy Tha, Christopher Thomas and Carlton Finney.

Cao does not know what the police did then. He recalls that Hang was taken away by ambulance and that he was taken to a police station where he gave a statement. Cao knew the three Cambodians because they were the adult children of his former girlfriend, Mao Inn (Inn).

Henry Schoch (PO Schoch) and Nicholas Schoeniger (PO

Schoeniger) were the uniformed officers in the marked patrol car in the Lowell Elementary School lot in the 5800 block of 5th Street at the time of the incident. PO Schoch was the driver and PO Schoeniger was seated in the passenger seat. Responding to Hang's calls for help, PO Schoch drove out of the lot to 5th and Grange Streets where they found Hang. PO Schoch attempted to speak to Hang who pointed to the five defendants who were walking away. Almost immediately, Cao appeared and he too pointed to the departing five. As they walked away, the five were looking in PO Shoch's direction. There were no other pedestrians on the street. After ordering the group to stop, PO Schoeniger apprehended four of the five: Rithy Tha, Thea Tha, Carlton Finney and Christopher Thomas. The police recovered a gun from Carlton Finney.

PO Schoch did not know the identity of the fifth person who walked away; he could say only that she was an Asian female. PO Schoeniger knew only that the person was a female. The police did not pursue the departing female because their "hands were full" with the other four defendants, the witness and the victim.

Cao and Hang also testified that two days before the September 22 incident, there had been a confrontation between Mao Inn and Hang at a temple where Cao, Hang and Inn worshiped. The dispute arose out of the relationship that Cao had with Inn before he became Hang's boyfriend. That relationship also accounted for Cao's personal knowledge of Inn's adult children, defendants Thea Tha, Rithy Tha and [A]ppellant Thoeun Tha.

[Appellant] Thoeun Tha testified that she was not at the scene of the crime. Defendant Thea Tha testified that she alone was responsible for the attack on Hang and none of the other defendants were involved. None of the other defendants took the stand.

Regarding the assault and conspiracy charges, the verdict sheet asked the jury to answer with respect to each defendant the question whether he or she was guilty of (a) aggravated assault, (b) simple assault and (c) criminal conspiracy to commit aggravated assault.

Defense counsel made various objections during the trial. First, there was a motion for mistrial on the ground that the Commonwealth had committed a discovery violation by failing to turn over an affidavit in support of an arrest warrant. The court denied this motion, but barred its admission into evidence. Second, the court denied a motion for mistrial on the ground that a photo identification of Thoeun Tha by Hang was unduly suggestive. Third, the court denied a motion for mistrial stemming from the Commonwealth's use of the word "assault" during her examination of witnesses. Fourth, over objection, the court allowed Detective Steven Grace to read a statement that Hang had given a few days before she testified at trial. Finally, the court rejected defense objections to jury charges on the photo identification evidence and on "flight."

Trial Court Opinion ["T.C.O."], 12/1/11, at 3-7 (citations to Notes of Testimony omitted).

Appellant was found guilty of criminal conspiracy to commit aggravated assault. On March 29, 2011, Appellant filed post-verdict motions, which were denied on April 27, 2011. On June 30, 2011, Appellant was sentenced to five years' probation. On July 15, 2011, Appellant filed a timely notice of appeal. Appellant submitted a timely concise statement of errors complained of on ...


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