J-S48008-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    WILLIAM D. MCGREW                          :
                                               :
                       Appellant               :   No. 12 MDA 2017

           Appeal from the Judgment of Sentence November 29, 2016
                 In the Court of Common Pleas of York County
             Criminal Division at No(s): CP-67-CR-0007243-2015


BEFORE:      OTT, J., STABILE, J., and PLATT, J.*

MEMORANDUM BY OTT, J.:                               FILED FEBRUARY 20, 2018

        William D. McGrew appeals from the judgment of sentence entered on

November 29, 2016, in the York County Court of Common Pleas.                  On

September 13, 2016, a jury convicted McGrew of robbery, theft by unlawful

taking, and receiving stolen property (“RSP”).1 The court sentenced McGrew

to an aggregate term of six and one-half to 13 years’ incarceration. On appeal,

McGrew raises sufficiency of evidence, admissibility of certain evidence, and

legality of sentence claims. After a thorough review of the submissions by the

parties, the certified record, and relevant law, we affirm McGrew’s convictions.

However, as indicated and acknowledged by the trial court, it imposed an

____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1   18 Pa.C.S. §§ 3701(a)(1)(ii), 3921(a), and 3925(a), respectively.
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illegal sentence as to the theft crime, and therefore, we vacate the judgment

of sentence on the theft by unlawful taking conviction.

       The facts and procedural history are as follows: Niraj and Mina Ramani2

(“Husband” and “Wife”, respectively), co-owners of King Tobacco Express at

49 Market Street, York City, Pennsylvania, were working at their store on

January 13, 2016, when a male individual rushed in, wearing a blue hooded

jacket/sweatshirt,3 a hat, and a mask covering his face.4 N.T., 9/12/2016 –

9/13/2016, at 67, 72, 75.

       The perpetrator, subsequently identified as McGrew, shouted at Wife to

give him the money, while he had a knife with a 4-to-5 inch blade5 in his hand.

Id. at 68, 88. McGrew then pointed the knife towards Husband several times.

Id. at 68, 76. Husband opened the register and McGrew put his hand inside,



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2 At McGrew’s trial, both Husband and Wife testified via an interpreter because
they have difficulty with the English language. See N.T., 9/12/2016 –
9/13/2016, at 66, 70, 74. Police Officer Michael Davis indicated that because
of the language barrier, he had some difficulty understanding the victims. Id.
at 163.

3 A store customer, Roy Stottlemeyer, also testified the perpetrator was
wearing a blue-hooded sweatshirt. Id. at 98.

4 Wife and Husband both testified they could not see the face of the suspect
at the time.     Id. at 71, 81.     Officer Davis indicated he may have
misinterpreted, but thought Husband told him the perpetrator was a “light-
skinned black male.” Id. at 164.

5   The knife was never recovered. Id. at 120.



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pulled out money, and then fled the scene.6 Id. at 69, 75. Husband followed

McGrew outside the store from Market Street to Beaver Street where there

was an alley, but then returned and called the police. Id. at 76-77.

       After the police arrived, Husband accompanied them in the direction of

where McGrew fled and the officers found a discarded baby-blue sweatshirt

and Baltimore Orioles baseball hat on the ground. Id. at 80. Husband told

Officer Davis the robber wore the discarded items. Id. at 175. A video from

a nearby store’s surveillance camera was played at trial that depicted a man

wearing a baby blue sweatshirt walking on the same side of Market Street as

the convenience store around the time the crime took place. Id. at 105.

       Husband mentioned to police “[t]here was another incident which

happened a few days before, three or four days before this incident, that a

person came to the store, and he tried to run various credit cards on the

machine to purchase something[.]”7 Id. at 81. Husband believed “it might

be the same person[.]” Id. He provided police with credit card transaction

history information,8 and also gave them a blue Aldi grocery plastic bag that

was carried by the suspect to police. Id. at 87, 120.


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6  It was stipulated at trial that $1,350.00 was taken from the convenience
store’s register. Id. at 230.

7 Husband also noted, “It appeared that the card carried a woman’s name.”
Id. at 83.

8 Husband actually provided the officers with credit card information from
November of 2015, and not January of 2016. Id. at 115-116.

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     Detective Paul DeHart traced the credit card information to a woman

named Marilyn Doll, who was living in Maryland.        Id. at 107-108.     In

attempting to contact her, Detective DeHart spoke with Glenn Doll, Marilyn’s

son, who told the detective “that his mother is elderly and he does have a

sister by the name of Laura Strausbaugh who lives in York.”      Id. at 108.

Detective DeHart then contacted Strausbaugh and “she stated that she did

have a boyfriend in the York area, and she gave the name William McGrew,

the same date of birth as Mr. McGrew.” Id. at 108-109. Detective DeHart

learned McGrew used the same address as Strausbaugh, 300 Roosevelt

Avenue. Id. at 109. Detective DeHart indicated the perpetrator fled in the

direction of 300 Roosevelt Avenue. Id. at 112-113. The detective also “had

previous knowledge that Mr. McGrew was from the Baltimore, Maryland, area,

and being that the hat [found at the scene] was a Baltimore hat for a sports

team, when I went to speak to [McGrew] in his apartment, he was also

wearing a Baltimore sports T-shirt.” Id. at 112. The detective made contact

with McGrew at the 300 Roosevelt Avenue residence and requested an

updated DNA sample.     Id. at 111.    McGrew complied with the request at

subsequent date. Id.

     Jillian M. Crouch, a DNA forensic science expert with the Pennsylvania

State Police, testified to the DNA results from McGrew’s sample, the

sweatshirt, and the Orioles hat. She indicated there was a “full DNA profile”

from McGrew on the sweatshirt and hat. Id. at 150-151. She also testified


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other people’s DNA was present was on the items but McGrew’s was the only

“full profile.” Id. at 152.9 Crouch explained the significance:

             The fact that th[e] profile is found as the major means that
       that person potentially wore that article of clothing more than the
       other two or other DNA profiles that were found or that person
       either, you know, was perspiring more than someone else or they
       were shedding more skin cells than someone else.

                                                 …

       If someone were wearing that item, you would expect to get a full
       profile, if they were wearing it for an extended period of time. If
       you’re just putting it on for a second, you’re not going to be
       depositing that much DNA on that piece of clothing.

Id. at 157, 159.

       McGrew testified that he lived at 300 Roosevelt Avenue with his fiancée,

Strausbaugh.      Id. at 184.       He indicated he has a prior criminal record,

including multiple theft convictions.          Id. at 185-186.    He stated he had a

prescription drug problem and at the end of November of 2015, he decided to

enter a rehabilitation facility until January of 2016.           Id. at 188.   McGrew

testified he would let various people live in the home he shared with

Strausbaugh for a certain fee.10         Id. at 189-190.    When asked about the

clothing found by police, McGrew stated they were both his, but the last time

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9 Specifically, a mixture of three individuals’ DNA were detected on the
sweatshirt and two peoples’ DNA on the hat. Id. at 155-156.

10On cross-examination, McGrew could not identify any of these “tenants” by
name. Id. at 201.




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he saw them was before he entered rehab.           Id. at 192.       He also said

Strausbaugh had “bagged up the majority of [his clothing] that [he] didn’t

take to rehab, and at that time [he] didn’t know what happened” but later

found at she had taken his clothing to a thrift store.11 Id. at 195, 218-219.

       McGrew denied having any involvement in the robbery of the

convenience store on January 13, 2016. Id. at 197. He also denied using

Strausbaugh’s mother’s credit card. Id. at 199. McGrew testified he had been

to the convenience store several times, and Strausbaugh may have used her

mother’s credit card but he “rarely paid attention to it[.]”12 Id.

       Lastly, Strausbaugh testified, confirming she gave away McGrew’s

clothing in December of 2015 but could not name specific items, and that her

mother is Doll and she had her mother’s credit card in her possession. Id. at

218-220. She could not recall a time prior to April of 2015 when her mother

visited her in York. Id. at 222-223. She also indicated she shopped at Aldi’s

grocery store and had several blue plastic bags at her residence. Id. at 228-

229.

       McGrew was arrested and charged with numerous crimes related to the

robbery. A two-day jury trial began on September 12, 2016. The next day,

____________________________________________


11 Additionally, he said his residence was burglarized in the beginning of
November 2015. Id. at 204.

12 The credit card records did not indicate any “transactions” were made by
Doll in December of 2015. Id. at 208.



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the jury found McGrew guilty of robbery, theft by unlawful taking, and RSP.13

On November 29, 2016, the court sentenced McGrew to a term of six and one-

half to 13 years’ incarceration for the robbery count, and a concurrent term

of one to two years’ imprisonment for the theft count. 14 McGrew did not file

post-sentence motions, but did file this timely appeal.15

       In McGrew’s first argument, he claims there was insufficient evidence to

convict him of robbery. See McGrew’s Brief at 17. Specifically, he states the

only evidence that connected him to the crime was the following: (1) the DNA

evidence found on the robber’s clothing; and (2) the use of a credit card at

the store months beforehand. Id. With respect to the DNA evidence, McGrew

asserts:

              [There] is very much doubt because there were multiple
       contributors to the clothing that was recovered. Indeed, even the
       Commonwealth’s expert admitted the sweatshirt contained the
       DNA profiles of two other people while the hat contained the
       profile of one other person. These people remained completely
       unknown at the time of trial, and there was no indication that the
       police excluded them as suspects.

             It is true that McGrew left a full profile on the clothing and
       the other contributors did not. This meant he “potentially” wore
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13   The jury acquitted McGrew of simple assault.

14   The RSP count merged with the theft offense for sentencing purposes.

15  On December 30, 2016, the trial court ordered McGrew to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Following an extension of time, McGrew filed a concise statement on February
10, 2017. The trial court issued an opinion pursuant to Pa.R.A.P. 1925(a) on
March 13, 2017.



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       the clothing more than the others, or possibly left more DNA by
       sweating more or shedding more skin cells. But the expert
       admitted it was impossible to determine when the contributors’
       DNA was left on the clothing, or how long they had worn the
       clothing. It was therefore entirely possible that one of the minor
       contributors wore the clothing last, i.e. during the robbery.

Id. at 18-19 (citations omitted). McGrew also attacks the Commonwealth’s

introduction of “touch DNA”16 testimony, arguing, “[T]his is just a theory, and

not a very convincing one. All that is clear from the expert testimony is that

‘a lot of different variables’ determine whether someone deposits DNA on an

article of clothing, and in what quantity.” Id. at 19.

       With regard to the credit card information, McGrew states:

             As for [Husband]’s “hunch” that the robber was the same
       person who used a credit card a few months before, the
       Commonwealth only linked the credit card to McGrew with
       evidence that … was inadmissible hearsay. Further, even if
       McGrew used a credit card at the store in the past, this is hardly
       surprising. He had been there 20 to 25 times.

              The use of the credit card was only incriminating to the
       extent one can believe [Husband]’s hunch that the person who
       used the credit card was the same person who robbed the store.
       And despite the Commonwealth’s dwelling on the subject -- it was
       referenced in opening statement, deliberated elicited through
       several witnesses, and stressed in closing argument -- there was
       too little evidence to support this conclusion.

             Notably, there was no indication that the person who used
       the credit card was masked or otherwise difficult to identify. Yet
       [Husband], despite supposedly finding this person’s behavior so
       suspicious, never identified McGrew in court or before trial as the
       credit card user. In fact, Officer Davis never even asked [the
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16 Crouch testified “touch DNA” is “the theory that anything that you may
touch or handle you can potentially be depositing your DNA on that item.”
N.T., 9/12/2016 – 9/13/2016, at 152.

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      victim] what it was about the robber that reminded him of the
      purchases. As far as he knew, nobody else did, either.

Id. at 20 (record citations omitted).

      Moreover, McGrew attacks certain testimony regarding the Aldi bag and

the fact that the robber ran in the same direction as McGrew’s apartment after

the incident. Id. at 21. He asserts the Commonwealth “neither tested the

bag the robber left at King Tobacco nor did anything else to distinguish

McGrew from the thousands of people who shop at the three Aldi locations

within 20 miles of King Tobacco” and “the robber’s going in the general

direction of McGrew’s home is so insignificant as to add nothing to the

Commonwealth’s evidence.”       Id. at 22.     Lastly, McGrew points to the

testimony of both Husband and Wife who described the robber as black, which

contradicts the fact that McGrew is white. Id. He states, “At best, it certainly

does not add to the shaky evidence against McGrew.” Id.

      Our well-settled standard of review regarding sufficiency of the evidence

claims is as follows:

      The standard we apply in reviewing the sufficiency of the evidence
      is whether viewing all the evidence admitted at trial in the light
      most favorable to the verdict winner, there is sufficient evidence
      to enable the fact-finder to find every element of the crime beyond
      a reasonable doubt. In applying the above test, we may not weigh
      the evidence and substitute our judgment for the fact-finder. In
      addition, we note that the facts and circumstances established by
      the Commonwealth need not preclude every possibility of
      innocence. Any doubts regarding a defendant’s guilt may be
      resolved by the fact-finder unless the evidence is so weak and
      inconclusive that as a matter of law no probability of fact may be
      drawn from the combined circumstances. The Commonwealth
      may sustain its burden of proving every element of the crime

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       beyond a reasonable doubt by means of wholly circumstantial
       evidence. Moreover, in applying the above test, the entire record
       must be evaluated and all evidence actually received must be
       considered. Finally, the finder of fact while passing upon the
       credibility of witnesses and the weight of the evidence produced,
       is free to believe all, part or none of the evidence.

Commonwealth v. Melvin, 103 A.3d 1, 39-40 (Pa. Super. 2014) (citation

omitted), appeal denied, 112 A.3d 651 (Pa. 2015).

       A defendant is guilty of robbery, in relevant part, if in the course of

committing a theft, he “threatens another with or intentionally puts him in

fear of immediate serious bodily injury[.]” 18 Pa.C.S. § 3701(a)(1)(ii).

       We note McGrew’s contention, in toto, goes to the weight rather than

the sufficiency of the evidence as McGrew does not allege the Commonwealth

failed to prove any specific element of the crime for which he was convicted.

Rather, he is asking this Court to reweigh the evidence in his favor. Moreover,

it was the jury’s responsibility to determine the credibility of the DNA expert

and the victims’ testimony. See Commonwealth v. Gallagher, 547 A.2d

355, 357 (Pa. 1988) (“Determinations of credibility … are exclusively the

province of the jury.”).17       Because McGrew did not raise a weight of the

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17   We are guided by the following:

             [I]t is necessary to delineate the distinctions between a
       claim challenging the sufficiency of the evidence and a claim that
       challenges the weight of the evidence. The distinction between
       these two challenges is critical.

                                               …



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evidence claim at sentencing or in a post-sentence motion, he is barred from

raising such an argument now. See Pa.R.Crim.P. 607; Commonwealth v.

Cruz, 71 A.3d 998, 1009 (Pa. Super. 2013) (finding defendant’s weight




____________________________________________




              A claim challenging the sufficiency of the evidence is a
       question of law. Evidence will be deemed sufficient to support the
       verdict when it establishes each material element of the crime
       charged and the commission thereof by the accused, beyond a
       reasonable doubt. Where the evidence offered to support the
       verdict is in contradiction to the physical facts, in contravention to
       human experience and the laws of nature, then the evidence is
       insufficient as a matter of law. When reviewing a sufficiency claim
       the court is required to view the evidence in the light most
       favorable to the verdict winner giving the prosecution the benefit
       of all reasonable inferences to be drawn from the evidence.

              A motion for new trial on the grounds that the verdict is
       contrary to the weight of the evidence, concedes that there is
       sufficient evidence to sustain the verdict. Thus, the trial court is
       under no obligation to view the evidence in the light most
       favorable to the verdict winner. An allegation that the verdict is
       against the weight of the evidence is addressed to the discretion
       of the trial court. A new trial should not be granted because of a
       mere conflict in the testimony or because the judge on the same
       facts would have arrived at a different conclusion. A trial judge
       must do more than reassess the credibility of the witnesses and
       allege that he would not have assented to the verdict if he [or she]
       were a juror. Trial judges, in reviewing a claim that the verdict is
       against the weight of the evidence do not sit as the thirteenth
       juror. Rather, the role of the trial judge is to determine that
       notwithstanding all the facts, certain facts are so clearly of greater
       weight that to ignore them or to give them equal weight with all
       the facts is to deny justice.

Commonwealth v. Widmer, 744 A.2d 745, 751-752 (Pa. 2000) (quotations,
citations and footnote omitted).

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challenge waived for failure to raise it before the trial court), appeal denied,

81 A.3d 75 (Pa. 2013); see also Pa.R.A.P. 302.

      Nevertheless, as the trial court properly found:

            [B]oth store owners described the perpetrator as a male
      wearing a blue, hooded sweatshirt with a mask over his facial
      features and a cap on his head. Mr. Ramani (store owner) further
      indicated that he followed the perpetrator out of the store and saw
      the general direction in which he fled the store. Mr. Ramani then
      returned to the store to call a 911 operator. Upon indicating to
      the investigating officer the area in which the store owner had last
      seen the perpetrator, the police located discarded clothing rolled
      into a ball that matched the description of that which the
      perpetrator was wearing. Additional video evidence was offered
      by the Commonwealth depicting a male in the vicinity of the store
      wearing the same clothing.

            Mr. Ramani also believed that an earlier failed credit card
      transaction might be linked to the perpetrator and provided
      information regarding the credit card to the police. The police
      investigated the ownership of the card and were able to determine
      that the daughter of the named credit card holder was residing in
      York, Pennsylvania.     Upon contacting the daughter, it was
      discovered that she resided with [McGrew]. DNA swabs were
      taken from [McGrew] and matched DNA evidence retrieved from
      the cuffs of the sweatshirt and the interior rim of the ball cap. In
      fact, [McGrew]’s full profile was located on both articles of
      clothing.

            Based upon the circumstantial evidence presented, the jury
      could link [McGrew] to the crimes charged and convict him.

Trial Court Opinion, 3/13/2017, at 3-4.       Accordingly, even if McGrew had

properly presented his sufficiency argument, it would fail because the

Commonwealth did present ample circumstantial evidence to support his

robbery conviction.




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      In McGrew’s second issue, he claims the court erred in admitting

allegedly hearsay evidence that linked him to use of the credit card at King

Tobacco prior to the robbery.     See McGrew’s Brief at 24.      Specifically, he

challenges the testimony, admitted over objection, from Detective DeHart, in

which he stated that Doll’s son told the detective that he had a sister named

Laura Strausbaugh, who lived in York. Id. at 25; see also N.T., 9/12/2016,

at 107-108. McGrew contends his objection to this testimony should have

been sustained because “[t]here was no need for [Detective] DeHart to specify

the exact path leading him to McGrew.” Id. at 26. Moreover, he states “the

evidence was particularly problematic because neither Doll nor her son

testified[,]” and therefore, he was left with no opportunity to confront the

declarant. Id. at 27. Additionally, McGrew argues the trial court erred in

stating he had an opportunity to confront the source because Strausbaugh

testified at his trial.   He states, “But Strausbaugh was not the source of

Detective DeHart’s information; rather, he relayed the statements of Doll’s

son as well as whatever records he viewed. Further, confrontation aside, the

Commonwealth would not have linked the credit card to McGrew at all were it

not for the offending testimony.” Id. at 28 (italics in original).

      The following principles guide our review:

      In reviewing a trial court’s ruling on the admissibility of evidence,
      our standard of review is one of deference. It is firmly established,
      “questions concerning the admissibility of evidence lie within the
      sound discretion of the trial court, and [a reviewing court] will not
      reverse the court’s decision on such a question absent clear abuse
      of discretion.”

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Commonwealth v. Baker, 963 A.2d 495, 503-504 (Pa. Super. 2008)

(citations omitted), appeal denied, 992 A.2d 885 (Pa. 2010). Additionally,

       [i]t is not sufficient to persuade the appellate court that it might have
       reached a different conclusion [;] it is necessary to show an actual abuse
       of the discretionary power. An abuse of discretion will not be found
       based on a mere error of judgment, but rather exists where the court
       has reached a conclusion [that] overrides or misapplies the law, or
       where the judgment exercised is manifestly unreasonable, or the result
       of partiality, prejudice, bias or ill-will.

Commonwealth v. Christine, 125 A.3d 394, 397 (Pa. 2015) (citations

omitted).

       The general admission of evidence is governed by Rule 402 of the

Pennsylvania Rules of Evidence, which provides:

       All relevant evidence is admissible, except as otherwise provided by law.
       Evidence that is not relevant is not admissible.

Pa.R.E. 402.18
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18  The exclusion of relevant evidence is governed by Rule 403 of the
Pennsylvania Rules of Evidence, which provides:

       The court may exclude relevant evidence if its probative value is
       outweighed by a danger of one or more of the following: unfair
       prejudice, confusing the issues, misleading the jury, undue delay,
       wasting time, or needlessly presenting cumulative evidence.

Pa.R.E. 403.

       Additionally,

       “[e]vidence is admissible if it is relevant — that is, if it tends to establish
       a material fact, makes a fact at issue more or less probable, or supports
       a reasonable inference supporting a material fact — and its probative
       values outweighs the likelihood of unfair prejudice.”

Commonwealth v. Hicks, 156 A.3d 1114, 1125 (Pa. 2017) (citations
omitted), cert. denied, 138 S. Ct. 176 (U.S. 2017).

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      Moreover,

      “‘[h]earsay’ is a statement, other than one made by the declarant
      while testifying at the trial or hearing, offered in evidence to prove
      the truth of the matter asserted.” Pa.R.E. 801(c). Thus, any “out
      of court statement offered not for its truth but to explain the
      witness’s course of conduct is not hearsay.” Commonwealth v.
      Rega, 593 Pa. 659, 933 A.2d 997, 1017 (Pa. 2007) (citing
      Commonwealth v. Sneed, 514 Pa. 597, 526 A.2d 749, 754 (Pa.
      1987)).

Commonwealth v. Johnson, 42 A.3d 1017, 1035 (Pa. 2012), cert. denied,

133 S. Ct. 1795 (U.S. 2013).

      Here, the trial court found the following:

            Detective Dehart testified regarding his investigation of the
      credit card supplied by the victim store owner. His investigation
      linked the card to the owner’s daughter, who resided in York,
      Pennsylvania and resided with [McGrew].          Defense counsel
      objected indicating that the statement of the card owner’s son
      providing information regarding his sister’s residence in York,
      Pennsylvania was inadmissible hearsay. The Commonwealth
      responded that the detective was testifying regarding the course
      of his investigation.    This Court agreed and overruled the
      objection.

            [McGrew] argues that he did not have an opportunity to
      confront the son’s statements as to ownership of the credit card.
      However the daughter, Ms. Strausbaugh, who was in possession
      of the credit card, did testify at trial as a witness for [McGrew].
      Ms. Strausbaugh acknowledged that she was in possession of her
      mother’s credit card and that she had used it at the Ramanis’
      store, with [McGrew] present. [McGrew] had every opportunity
      to question Ms. Strausbaugh about the credit card and [McGrew]’s
      use or non-use of it. No error was committed by the detective’s
      testimony regarding how he linked the credit card to [McGrew].

Trial Court Opinion, 3/13/2017, at 4-5.

      Based on our review, we discern no abuse of discretion in the trial court’s

decision.   The trial court determined Detective DeHart’s statement was

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relevant to the case because it was part of explaining the course of the

detective’s investigation, which is permissible. See Johnson, 42 A.3d at 1035

(finding statement made by police sergeant that he collected a piece of

evidence based on a belief made by another detective was permissible

because it was used to explain that police officer’s “course of conduct”).

Furthermore, we conclude the probative value of the statement was not

outweighed by a danger of unfair prejudice. Accordingly, the trial court did

not abuse its discretion in admitting this evidence and McGrew’s second claim

fails.

         In his final argument, McGrew alleges his theft by unlawful taking

conviction should have merged with his robbery conviction for sentencing

purposes. See McGrew’s Brief at 29. Specifically, he states: “Both robbery

and theft by unlawful taking … were premised on the same act: taking money

from Mina Ramani. And because all the elements of theft by unlawful taking

are included in robbery, the theft by unlawful taking conviction should … have

merged.” Id. (citations omitted).

         Here, the trial court concedes that it erred: “Upon further review, this

Court agrees and upon remand for jurisdiction will vacate the sentence

imposed on the theft conviction.” Trial Court Opinion, 3/13/2017, at 5.19




____________________________________________


19 The Commonwealth did not object to the trial court’s determination.
Commonwealth’s Brief at 34.

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      We agree with both parties and the trial court that the separate sentence

for theft was in error.   Accordingly, we vacate the sentence for theft by

unlawful taking because it should have merged with the robbery charge for

sentencing purposes. Nevertheless, McGrew’s sentencing remains the same

because the sentencing scheme is not upset since the sentences were to run

concurrently and the theft sentence was significantly shorter than the robbery

sentence. Therefore, there is no need to remand for re-sentencing.

      Judgment of sentence at 18 Pa.C.S. § 3921(a) vacated. Judgment of

sentence affirmed in all other respects. Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/20/2018




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