J-S50021-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                          Appellee

                    v.

LAWRENCE J. HANDLOVIC

                          Appellant                  No. 3519 EDA 2014


              Appeal from the PCRA Order November 24, 2014
           In the Court of Common Pleas of Northampton County
            Criminal Division at No(s): CP-48-CR-0002298-2013


BEFORE: PANELLA, J., MUNDY, J., and JENKINS, J.

MEMORANDUM BY MUNDY, J.:                        FILED NOVEMBER 10, 2015

      Appellant, Lawrence J. Handlovic, appeals from the November 24,

2014 order, dismissing his first petition filed pursuant to the Post Conviction

Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546.        After careful review, we

affirm.

      Our review of the certified record discloses the following procedural

history of this case.    On April 8, 2009, Appellant was charged by criminal

complaint with burglary, graded as a first-degree felony; criminal trespass,

graded as a third degree felony; theft by unlawful taking, graded as a

second degree felony; receiving stolen property, graded as a second degree
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felony; and criminal mischief, graded as a summary offense.1 On October

31, 2013, Appellant entered an open plea of guilty to all charges. The trial

court sentenced Appellant that same day to a term of incarceration of 24 to

48 months for the burglary, a concurrent term of incarceration of 12 to 24

months for the criminal trespass, a consecutive term of incarceration of 24

to 48 months for the theft by unlawful taking, for an aggregate sentence of

4 to 8 years’ incarceration. On November 8, 2013, Appellant filed a motion

to reconsider the sentence, which the trial court denied on November 13,

2013. Appellant did not file a direct appeal.

       On April 7, 2014, Appellant filed a timely pro se PCRA petition. The

PCRA court appointed counsel to represent Appellant and subsequently

scheduled an “issue-framing conference” for May 23, 2014.                   At that

conference, Appellant limited his issue to the legality of his sentence based

on a failure to merge the theft charge with the burglary charge.               N.T.,

5/23/14, at 4-5. On July 2, 2014, the PCRA court filed its notice of intent to

dismiss    Appellant’s     PCRA     petition   without   a   hearing,   pursuant   to

Pennsylvania Rule of Criminal Procedure 907.2 On November 24, 2014, the




____________________________________________
1
  18 Pa.C.S.A. §§ 3503(a)(2), 3503(a)(1)(i), 3925(a), and 3304(a)(2),
respectively.
2
  On August 1, 2014, Appellant filed a premature notice of appeal, which this
Court quashed on November 13, 2014. Per Curiam Order, 11/13/14, 2230
EDA 2014.



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PCRA court dismissed Appellant’s PCRA petition.         Appellant filed a timely

notice of appeal on December 2, 2014.3

       On appeal, Appellant raises a single issue for our review.

              Whether plea counsel was ineffective in failing to file
              a motion to reconsider an illegal sentence and/or
              appeal to the Pennsylvania Superior Court where
              [A]ppellant claims that [second-degree felony] theft
              of a firearm merges with burglary where the
              underlying criminal conduct is one single criminal
              act?

Appellant’s Brief at 3.

       We address this issue in compliance with the following standards.

              Our standard of review of the denial of a PCRA
              petition is limited to examining whether the court’s
              rulings are supported by the evidence of record and
              free of legal error. This Court treats the findings of
              the PCRA court with deference if the record supports
              those findings. It is an appellant’s burden to
              persuade this Court that the PCRA court erred and
              that relief is due.

Commonwealth v. Feliciano, 69 A.3d 1270, 1274-1275 (Pa. Super. 2013)

(citation omitted).

              [Our] scope of review is limited to the findings of the
              PCRA court and the evidence of record, viewed in the
              light most favorable to the prevailing party at the
              PCRA court level.      The PCRA court’s credibility
              determinations, when supported by the record, are
              binding on this Court. However, this Court applies a

____________________________________________
3
  Appellant and the PCRA court have complied with Pennsylvania Rule of
Appellate Procedure 1925. The PCRA court referenced its statement of
reasons that accompanied its July 2, 2014 Rule 907 notice of intent as
containing the reasons for its decision.


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              de novo standard of review to the PCRA court’s legal
              conclusions.

Commonwealth v. Medina, 92 A.3d 1210, 1214-1215 (Pa. Super. 2014)

(en banc) (internal quotation marks and citations omitted), appeal granted,

105 A.3d 658 (Pa. 2014). Additionally, in order to be eligible for PCRA relief,

a petitioner must plead and prove by a preponderance of the evidence that

his conviction or sentence arose from one or more of the errors listed at 42

Pa.C.S.A. § 9543(a)(2).        These issues must be neither previously litigated

nor waived.       Id. at § 9543(a)(3).           “Issues concerning the legality of

sentence are cognizable under the PCRA.”4 Commonwealth v. Beck, 848

A.2d 987, 989 (Pa. Super. 2004) (citation omitted).

                    “A claim that crimes should have merged for
              sentencing purposes raises a challenge to the legality
              of the sentence. Therefore, our standard of review is
              de novo and our scope of review is plenary.”
              Commonwealth v. Quintua, 56 A.3d 399, 400 (Pa.
              Super. 2012) (citation omitted). “An illegal sentence
              must be vacated.      In evaluating a trial court’s
              application of a statute, our standard of review is
              plenary and is limited to determining whether the
              trial   court  committed     an    error   of    law.”
____________________________________________
4
  Appellant couches his issue as an ineffective assistance of counsel claim.
However, as stated, the legality of a sentence may be challenged directly
through the PCRA, and it is in this posture that Appellant’s argument is
developed.     We therefore address Appellant’s issue simply as a PCRA
challenge to the legality of the sentence imposed by the trial court. “It is
settled that a legality-of-sentence issue may be reviewed sua sponte by this
Court, due to the fact that an illegal sentence must be vacated.”
Commonwealth v. Stradley, 50 A.3d 769, 774 (Pa. Super. 2012) (citation
omitted).




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          Commonwealth v. Poland, 26 A.3d 518, 523 (Pa.
          Super. 2011) (citation omitted), appeal denied, 37
          A.3d 1195 (2012).

               Our legislature has defined the circumstances
          under which convictions for separate crimes may
          merge for the purpose of sentencing.

               § 9765. Merger of sentences

               No crimes shall merge for sentencing purposes
               unless the crimes arise from a single criminal
               act and all of the statutory elements of one
               offense are included in the statutory elements
               of the other offense. Where crimes merge for
               sentencing purposes, the court may sentence
               the defendant only on the higher graded
               offense.

          42 Pa.C.S.A. § 9765.

          Our Supreme Court determined that

               the plain language of Section 9765 reveals a
               legislative intent “to preclude the courts of this
               Commonwealth from merging sentences for
               two offenses that are based on a single
               criminal act unless all of the statutory
               elements of one of the offenses are included in
               the statutory elements of the other.” … [Our
               Supreme Court] held that when each offense
               contains an element the other does not,
               merger is inappropriate.

          Quintua, supra at 401, quoting Commonwealth v.
          Baldwin, 604 Pa. 34, 985 A.2d 830, 837 (2009). In
          essence, “[o]ur merger statute merely codified the
          adoption by the [Commonwealth v. Tarver, 493
          Pa. 320, 426 A.2d 569 (1981)]/[Commonwealth v.
          Anderson, 538 Pa. 574, 650 A.2d 20 (1994)]
          decisions of the Blockburger[v. United States,
          284 U.S. 299 (1932)] test and upholds the long-
          standing merger doctrine relative to greater and
          lesser-included  offenses.”  Commonwealth       v.

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            Wade, 33 A.3d 108, 120 (Pa. Super. 2011), appeal
            denied, 51 A.3d 839 (2012).

                  To determine whether offenses are greater and
                  lesser-included offenses, we compare the
                  elements of the offenses. If the elements of
                  the lesser offense are all included within the
                  elements of the greater offense and the
                  greater offense has at least one additional
                  element, which is different, then the sentences
                  merge. Commonwealth v. Anderson, 538
                  Pa. 574, 650 A.2d 20, 24 (1994). If both
                  crimes require proof of at least one element
                  that the other does not, then the sentences do
                  not merge. Id.

            Commonwealth v. Johnson, 874 A.2d 66, 70–71
            (Pa. Super. 2005), appeal denied, 587 Pa. 720, 899
            A.2d 1122 (2006).

Commonwealth v. Nero, 58 A.3d 802, 806-807 (Pa. Super. 2012), appeal

denied, 72 A.3d 602 (Pa. 2013). “Accordingly, merger is appropriate only

when two distinct criteria are satisfied: (1) the crimes arise from a single

criminal act; and (2) all of the statutory elements of one of the offenses are

included within the statutory elements of the other.”     Commonwealth v.

Jenkins, 96 A.3d 1055, 1056 (Pa. Super. 2014) (citation omitted), appeal

denied, 96 A.3d 1055 (Pa. 2014).        “The exception to [the elements-based

general rule] is when a statute dictates the manner and method by which

merger will occur.”   Commonwealth v. Springer, 961 A.2d 1262, 1265

(Pa. Super. 2008) (citation omitted).

      Instantly, “Appellant argues that the Court was bound to apply the

elements test of Title 42 Pa.C.S. §9765 in accordance with the plain


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language interpretation of Section 9765 revealed by the General Assembly.”

Appellant’s Brief at 9. Appellant proceeds to aver in conclusory fashion, that

“[h]ere, the criminal acts of [] Appellant involve a theft inside a residence.

The crime of burglary was charged.                 The crime of theft is the underlying

criminal event that is the lesser included element of burglary.”              Id.   We

disagree.

        Contrary to Appellant’s bald assertion, each subject crime contains an

essential element not required to prove the other. In other words, neither

crime is a lesser-included offense of the other. “Under Pennsylvania law the

crime of burglary is defined as an unauthorized entry with the intent to

commit a crime after entry.” Commonwealth v. Alston, 651 A.2d 1092,

1094 (Pa. 1994) (citations omitted).5               “Proof of Theft by Unlawful Taking

____________________________________________
5
    The statute provides as follows.

              § 3502. Burglary

               (a) Offense defined.--A person commits the
              offense of burglary if, with the intent to commit a
              crime therein, the person:

                                               …

              (2) enters a building or occupied structure, or
              separately secured or occupied portion thereof that
              is adapted for overnight accommodations in which at
              the time of the offense no person is present;

                                               …

18 Pa.C.S.A. § 3502(a)(2).


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requires three elements: (1) unlawful taking or unlawful control over

movable property; (2) movable property belongs to another; and (3) intent

to deprive (permanently).” Commonwealth v. Young, 35 A.3d 54, 62 (Pa.

Super. 2011) (citation omitted), appeal denied, 48 A.3d 1249 (Pa. 2012).6

        Here, Appellant claims theft by unlawful taking is a lesser-included

offense of burglary, implicitly acknowledging that burglary includes an

element of proof not required to prove theft, i.e., entry of a structure.

However, the Commonwealth is not required to prove an actual taking,

which is a necessary element of the theft charge, in order to establish a

burglary charge.      Rather, the Commonwealth is only required to prove an

intent to commit a crime upon unlawful entry.

              We do note that the Commonwealth is not required
              to specify what crime a defendant, who is charged
              with burglary [], was intending to commit. Further,
              the Commonwealth need not prove the underlying
              crime    to    sustain    a   burglary   conviction.
              Commonwealth v. Lease, 703 A.2d 506 (Pa.
              Super. 1997) (burglary conviction affirmed where
____________________________________________
6
    The statute provides as follows.

              § 3921. Theft by unlawful taking or disposition

               (a) Movable property.--A person is guilty of theft
              if he unlawfully takes, or exercises unlawful control
              over, movable property of another with intent to
              deprive him thereof.

                                               …

18 Pa.C.S.A. § 3921(a)



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              defendant was acquitted of the underlying crimes of
              theft and receiving stolen property because the
              factfinder could have determined that the defendant
              entered the residence with the intent to steal but did
              not consummate the theft after entry.) See also,
              Commonwealth v. Alston, 651 A.2d 1092, 1095
              ([Pa.] 1994) (Commonwealth is not required to
              allege or prove what particular crime the defendant
              intended to commit after entry into a residence.)

Commonwealth v. Brown, 886 A.2d 256, 260, (Pa. Super. 2005) (parallel

citation omitted), appeal denied, 902 A.2d 969 (Pa. 2006). Therefore, the

charges of burglary and theft by unlawful taking each contain elements of

proof not required by the other. Accordingly, they do not merge pursuant to

Section 9765.7

       Based on the foregoing, we conclude Appellant’s claim that his

sentence was illegal because the trial court failed to merge his burglary and

theft by unlawful taking convictions for the purpose of sentencing is

groundless.      Accordingly, we discern no error by the PCRA court in

dismissing Appellant’s PCRA petition, and we affirm its November 24, 2014

order.
____________________________________________
7
  Appellant acknowledges that the exception to the general elements-based
merger principles of Section 9765 as provided by 18 Pa.C.S.A. § 3502(d)
does not apply to the instant case because the theft by unlawful taking count
is graded as a second-degree felony. See Appellant’s Brief at 10, citing, 18
Pa.C.S.A. § 3502(d) (providing, “A person may not be sentenced both for
burglary and for the offense which it was his intent to commit after the
burglarious entry or for an attempt to commit that offense, unless the
additional offense constitutes a felony of the first or second degree”); see
also PCRA Court’s Rule 907 Notice and Statement of Reasons, 7/2/14, at 1-
3.



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     Order affirmed.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/10/2015




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