J-A23016-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF                            :   IN THE SUPERIOR COURT OF
    PENNSYLVANIA                               :        PENNSYLVANIA
                                               :
                                               :
                v.                             :
                                               :
                                               :
    JOSEPH OESTERLE THIERS,                    :
                                               :   No. 3465 EDA 2015
                       Appellant

             Appeal from the Judgment of Sentence June 22, 2015
             In the Court of Common Pleas of Montgomery County
             Criminal Division at No(s): CP-46-CR-0008292-2013


BEFORE:      PANELLA, J., DUBOW, J., and FITZGERALD, J.*

MEMORANDUM BY DUBOW, J.:                             FILED NOVEMBER 29, 2017

        Appellant, Joseph Oesterle Thiers, appeals from the Judgment of

Sentence entered on June 22, 2015, by the Court of Common Pleas of

Montgomery County following his open guilty plea to four counts of

Aggravated Assault.1 After careful review, we affirm.

        On October 19, 2013, Appellant drove to an establishment named

Double Visions in Horsham Township, Pennsylvania, and shot and wounded

two employees.       Appellant shot Phil Catagnus in the chest and shot Jason

Catagnus in the back. Appellant subsequently fled the scene in his pickup

truck. Police Officers Jose Ortiz and Emmanuel Reguera pursued Appellant.

Appellant failed to heed the police officers’ sirens and emergency lights,

refused to stop, and engaged the police officers in a high-speed chase.
____________________________________________


1   18 Pa.C.S. § 2702(a)(1).
____________________________________
*    Former Justice specially assigned to the Superior Court.
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Appellant finally stopped in a residential driveway on Warwick Road in

Warrington Township, left his truck, and positioned himself behind a tree.

When the police officers exited their vehicle, Officer Reguera saw Appellant

point a gun at him and Officer Ortiz. Appellant then fired his gun at the two

police officers until it ran out of bullets.2 The two officers heard several shots

but were not hit by bullets.

       On January 9, 2015, Appellant entered into an open guilty plea to four

counts of Aggravated Assault; two counts for causing serious bodily injury to

the two victims that were shot, and two counts for attempting to cause serious

bodily injury to the two police officers. Prior to entering his plea in open court,

Appellant reviewed a written colloquy with his attorney, which he then initialed

and signed. The court scheduled a sentencing hearing for June 22, 2015.

Appellant did not seek to withdraw his guilty plea prior to sentencing.

       At the June 22, 2015 sentencing hearing, the court sentenced Appellant

to an aggregate term of twenty-two to forty-four years’ incarceration, which

included two terms of six to twelve years’ incarceration, to be served

consecutively, for the shooting of each civilian victim, and two terms of five

to ten years’ incarceration, also to be served consecutively, for the attempted

shooting of each police officer. All sentences imposed by the trial court were

within the standard range.



____________________________________________


2 The Smith and Wesson .22-caliber revolver had a six bullet chamber and
all six spent shell casings were in the cylinder.

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      Appellant did not file a Post-Sentence Motion to withdraw his guilty plea.

Rather, he filed a timely Post-Sentence Motion requesting only a modification

of sentence, which the trial court denied after a hearing.

      Appellant timely appealed. Both Appellant and the trial court complied

with Pa.R.A.P. 1925.

      Appellant raises the following issues on appeal:

      1. Did the trial court err when it accepted [Appellant]’s guilty plea
         that was not made knowingly, intelligently or voluntarily?

      2. Did the trial court err when it allowed defense counsel to
         prohibit [Appellant] from making a statement at the Guilty Plea
         when [Appellant] stated on the record that he wished to do so?

      3. Did the trial court err when it accepted a guilty plea to Count
         20 and Count 21 as there was insufficient evidence placed on
         the record to sustain convictions on two separate aggravated
         assaults, graded as felonies of the first degree, as it related to
         Officer Ortiz and Officer Reguera?

      4. Did the trial court abuse its discretion when it sentenced
         [Appellant] to two separate, consecutive terms of no less than
         5 years and no more than 10 years on Counts 20 and 21, as
         there lacked a factual predicate on which to sentence on two
         counts of Aggravated Assault, graded as a felony of the first
         degree, as it applied to the two police officers[?]

Appellant’s Brief at 4 (reordered for ease of disposition).

      In his first issue three issues, Appellant challenges the validity of his

guilty plea, averring it was not knowing, voluntary, and intelligent.         See

Appellant’s Brief at 15.     Specifically, Appellant alleges that he did not

understand the nature of the charges to which he was pleading guilty, there

was not a sufficient factual basis for the plea, he was not informed of the

maximum permissible ranges of sentences that he was facing, and he had not

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been permitted to make a statement on the record.             Id. at 16, 20, 24.

Appellant failed to raise these claims before the trial court and, therefore, they

are waived.

      It is well-settled in Pennsylvania that when a defendant enters a guilty

plea, he waives his right to challenge on direct appeal all non-jurisdictional

defects except the legality of his sentence and the validity of his plea.

Commonwealth v. Pantalion, 957 A.2d 1267, 1271 (Pa. Super. 2008). In

order to preserve an issue related to a guilty plea, an appellant must either

object during the plea colloquy, object at the sentencing hearing, or file a

motion to withdraw the plea within ten days of sentencing. Commonwealth

v. Monjaras-Amaya, 163 A.3d 466, 468-69 (Pa. Super. 2017).                    See

Pa.R.Crim.P 720(A)(1), (B)(1)(a)(i); see also Pa.R.A.P. 302 (“Issues not

raised in the lower court are waived and cannot be raised for the first time on

appeal.”). Failure to do so will result in waiver. Commonwealth v. Lincoln,

72 A.3d 606, 610 (Pa. Super. 2013). Further, an appellant “cannot rectify the

failure to preserve an issue by proffering it in response to a Rule 1925(b)

order.” Monjaras-Amaya, supra at 469 (citation, quotation, and emphasis

omitted). “The purpose of this waiver rule is to allow the trial court to correct

its error at the first opportunity, and, in so doing, further judicial efficiency.”

Id.

      Here, Appellant failed to object during the plea colloquy or at

sentencing, and he did not file a motion to withdraw the plea within ten days


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of sentencing. See Pa.R.Crim.P. 720(B)(1)(a)(i). Because Appellant never

challenged his guilty plea in the trial court before raising these issues in his

Rule 1925(b) statement, based on the foregoing authority, we are constrained

to find Appellant’s first three issues waived.

      In his last issue, Appellant avers that the trial court misapplied the

sentencing guidelines because the factual basis for sentencing Appellant to

two counts of Aggravated Assault for the attempted shooting of two police

officers was one criminal act. See Appellant’s Brief at 30. He further avers

that, because the crimes arose from one criminal act, the crimes merged for

sentencing purposes. Id. at 33. We disagree.

      As noted above, Appellant waived his right to challenge the factual basis

of his plea.   However, his assertion of merger presents a non-waivable

challenge to the legality of his sentence. Commonwealth v. Robinson, 931

A.2d 15, 24 (Pa. Super. 2007). Accordingly, our standard of review is de novo

and our scope of review is plenary. Commonwealth v. Martinez, 153 A.3d

1025, 1029-30.

      The Sentencing Code provides: “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.” 42 Pa.C.S. § 9765. Our Supreme Court has stated: “The

statute’s mandate is clear. It prohibits merger unless two distinct facts are

present: 1) the crimes arise from a single criminal act; and 2) all of the


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statutory elements of one of the offenses are included in the statutory

elements of the other.” Commonwealth v. Baldwin, 985 A.2d 830, 833

(Pa. 2009).

      Appellant argues that he committed a single “criminal act” of discharging

one bullet into the ground, a fact which is not supported by the record. See

Appellant’s Brief at 31.     In addition, during the guilty plea proceeding,

Appellant admitted that he “fired shots” at the officers.       N.T. Guilty Plea,

1/9/15, at 10. We will not entertain an argument based on facts not in the

record.

      The record shows that Appellant committed more than one criminal act,

namely, he “fired shots” at two different police officers. Where more than one

person is threatened or injured by a defendant’s actions, the defendant is

criminally liable for the harm done to each victim. Commonwealth v. Yates,

562 A.2d 908, 910 (Pa. Super. 1989). This Court has stated:

      [I]t remains the law of this Commonwealth that the life and safety
      of each citizen is to be protected individually. There is no “two for
      one discount” in the Pennsylvania Crimes Code, and we will not
      permit criminals to imply one through distortion of the common
      law merger doctrine. It shall not be a defense to liability that an
      indiscriminant force employed by a criminal injured or placed at
      risk more or different persons than intended. To the contrary, the
      only effective way for a criminal to limit potential liability in that
      respect is to choose more discriminant tools for achieving the
      criminal objective(s) sought, i.e. to stop using firearms and other
      instruments of crime which place bystanders at risk.




                                      -6-
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Id. at 911 (emphasis in original; footnote omitted). Thus, “[o]ur courts have

long held that where a defendant commits multiple distinct criminal acts,

concepts of merger do not apply.” Robinson, supra at 24.

      Appellant is not entitled to a “two for one discount” for shooting multiple

shots at the two police officers. Based on the foregoing, Appellant’s merger

claim fails.   We, thus, affirm Appellant’s Judgment of Sentence.

      Judgment of Sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/29/2017




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