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Commonwealth v. Ty Kinney

Superior Court of Pennsylvania

March 13, 2017

COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
TY KINNEY, Appellant

         Appeal from the Judgment of Sentence February 3, 2016 In the Court of Common Pleas of Lycoming County Criminal Division at No(s): CP-41-CR-0000304-2015

          BEFORE: GANTMAN, P.J., SHOGAN and STRASSBURGER,[*] JJ.

          OPINION

          SHOGAN, J.

         Ty Kinney ("Appellant") appeals from the judgment of sentence entered on February 3, 2016, in the Court of Common Pleas of Lycoming County. We affirm.

         The trial court set forth the history of this case as follows:

On January 26, 2015, Matthew Alexander and Daniel Pepperman, who are brothers, were walking on High Street when three individuals turned onto High Street from Rose Street. Alexander and Pepperman moved over so these individual[s] could pass by them. Two of the individuals passed, but the third individual, who both Alexander and Pepperman subsequently identified as Appellant, hit Alexander in the head with brass knuckles and shoved him to the ground. Appellant then kicked Alexander in the side and hit him in the head. One of the other individuals also started kicking Alexander until Pepperman started to run away to get help. Appellant demanded that Alexander give him everything he had. Alexander gave Appellant a pack of cigarettes, his wallet, and an orange Taurus lighter.
The other individuals chased Pepperman, tripped him and then began kicking and punching Pepperman in the side and the face. Appellant, who was wearing a dark coat with fur on it and Timberland boots, got off of Alexander and participated in the assault of Pepperman.
Pepperman saw a tan boot come towards him and strike his face "non–stop until his eye was swollen shut." He was kicked and punched repeatedly until he lost consciousness. Alexander was afraid his brother was going to die, so Alexander yelled for the individuals to stop and "play acted" like he was pulling a gun from his waistband and said he would kill all of them if they didn't stop. The individuals then ran away.
When Pepperman regained consciousness, he was spitting blood and his nose felt like it was completely congested but when he attempted to blow his nose, nothing but blood came out. The beanie he had been wearing was missing.
The police were called. The police observed footprints in the snow, which they followed to 655 Wildwood Boulevard. They saw males at different times looking out of the windows of the residence at 655 Wildwood Boulevard. The police knocked on the door and made contact with Stacy Fillman. The police told Fillman that they were investigating a serious crime scene, but she told them to come back the next day. The police told Fillman that wasn't an option; she could either consent to let them in or they would get a search warrant. Fillman slammed the door in their face.
The police obtained a search warrant for the residence. They took three males out of the residence, including Appellant. The police discovered a soaking wet pair of boots with the same sole or tread pattern as the footprints in the snow. They also found an orange Taurus lighter in the pocket of a long, green coat with fur around the hood, homemade brass knuckles in an upstairs bedroom dresser drawer, and a beanie in the dining room.
Appellant was arrested and charged with eight counts of robbery, two counts of aggravated assault, two counts of simple assault, two counts of theft, two counts of receiving stolen property, two counts of conspiracy and one count of prohibited offensive weapons.
A jury trial was held on November 17, 2015. The jury convicted Appellant of seven counts of robbery, two counts of aggravated assault, two counts of simple assault, one count of theft, one count of receiving stolen property, and one count of possession [of] a prohibited offensive weapon.
On February 3, 2016, the court sentenced Appellant to incarceration in a state correctional facility for 9 to 25 years, consisting of 7½ to 20 years for aggravated assault, a felony of the first degree, and 1½ to 5 years for possessing a prohibited offensive weapon (brass knuckles), a misdemeanor of the first degree. The remaining convictions either merged for sentencing purposes or the court imposed a concurrent sentence.
Appellant did not file any post sentence motions. He did, however, file a notice of appeal on February 26, 2016.

         Trial Court Opinion, 9/30/16, at 1–3. Subsequently, Appellant and the trial court complied with Pa.R.A.P. 1925.

         On appeal, Appellant raises the following issues for our consideration:

1. Whether the evidence was sufficient to sustain a verdict of guilty beyond a reasonable doubt that it was [Appellant] who committed the offense; namely, two counts of aggravated assault, one count of ...

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