J-S18014-16



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                          Appellee

                     v.

GABRIEL ALFONZA CARSON-RIVERA,

                          Appellant                   No. 971 MDA 2015


            Appeal from the Judgment of Sentence January 9, 2013
               In the Court of Common Pleas of Franklin County
                          Criminal Division at No(s):
                           CP-28-CR-0002084-2011
                           CP-28-CR-0002087-2011


BEFORE: BOWES, LAZARUS AND STRASSBURGER,* JJ.

MEMORANDUM BY BOWES, J.:                              FILED APRIL 01, 2016

       Gabriel Alfonza Carson-Rivera appeals nunc pro tunc from the

judgment of sentence of an aggregate term of ten to twenty years

imprisonment that was imposed after a jury convicted him at two related

criminal action numbers of two counts of conspiracy to commit robbery, and

one count each of robbery (serious bodily injury), attempted robbery, and

conspiracy to commit theft.           We reject Appellant’s challenge to the

sufficiency of the evidence supporting his convictions, but remand for

resentencing.

       Appellant was charged at two separate criminal action numbers in

connection with the October 30, 2011 robbery of the Super 8 Motel in

*
    Retired Senior Judge assigned to the Superior Court.
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Chambersburg, Pennsylvania, and the October 31, 2011 attempted robbery

of the Kenmar Motel in Newburg, Pennsylvania.        During the jury trial, the

Commonwealth presented several witnesses that described the two criminal

episodes, the vehicle used in the crimes, and Appellant’s and his co-

conspirator’s statements following their apprehension.        As pertinent to the

claims asserted herein, the witnesses testified as follows.

       Ankit Patel stated that he was working at the front desk of the Super 8

Motel in Chambersburg at approximately 7:00 p.m. on October 30, 2011.

An assailant, Appellant’s co-conspirator Colin Rea,1 ran into the motel lobby,

approached the desk, brandished a small firearm, tossed a plastic shopping

bag at Mr. Patel, and demanded, “give me the money.” N.T., 11/19/12, at

24-25.     Rea, a white male who is approximately six feet tall, wore a

Halloween mask over his face. Id. at 24-25. With the handgun leveled at

his chest, Mr. Patel handed Rea approximately $280. Id at 26. Rea took the

money, and as he turned to leave the motel he revealed the firearm to be

fake. Id. The witness explained, that before Rea left, “he shot the gun and

at that time I feel it’s . . . [a] toy gun.” Id. After the robbery, Mr. Patel

locked the doors to the motel lobby and called the police. Id. at 27. He did

not see the direction of Rea’s flight. Id. at 28.
____________________________________________


1
  The notes of testimony identify the co-conspirator as Colin Ray; however,
on April 24, 2013, the trial court entered an order confirming that the
correct spelling of the co-conspirator’s surname is Rea.



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      Peggy Crouse, the victim in the attempted robbery of the Kenmar

Motel, presented the following testimony.      On October 31, 2011, she was

working alone at the fifteen-room-motel, which she owns with her husband,

Roy. The motel’s office is connected to the Crouse’s residence. The office is

separated from the couple’s kitchen by a Dutch door, i.e., a door divided

horizontally so that the bottom half may remain shut while the top half

opens.   An alarm system emits an audible tone in the home to alert her

when the front door to the motel office is opened.

      At approximately 4:30 p.m., an individual, whom she identified at trial

as Appellant, entered the motel office, inquired about room rates, and then

left. During that exchange, Roy arrived home from work and walked passed

Appellant to enter the residence.    Roy recognized Appellant as a former

athlete at Chambersburg High School.      Since the motel’s room rates are

dependent upon the number of occupants, Roy informed his wife that there

was another male sitting in the car outside.

      Approximately thirty to forty-five minutes later, Appellant returned and

inquired about the estimated cost for him and his girlfriend to stay at the

motel for one week.      After getting that information, Appellant left and

indicated that he would return. Roughly ten minutes later, while Ms. Crouse

was in the residence, the alarm signaled that someone had opened the front

door. When Ms. Crouse entered the office, she was accosted by Rea who

was brandishing a gun. Although the assailant wore a ski mask, she could

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discern that he was white. Initially, Ms. Crouse assumed that the interaction

was a Halloween prank; however, when he demanded, “[G]ive me your

f**king money,” she began to fear for her safety.      N.T., 11/19/12, at 57.

Alerted by the assailant’s menacing command, Roy appeared at the Dutch

door and scared the attacker away by making a shooting gesture and

shouting “get out of here.” Id.

      Roy Crouse’s testimony was consistent with his wife’s. He added that,

when he arrived from work, he observed a dark green car near the road at

the end of the motel parking lot farthest away from the office. The vehicle,

which Mr. Crouse identified at trial in a photographic exhibit, was positioned

perpendicular to the designated parking spaces. It had substantial damage

to the rear and a trunk that would not close. He noted that a white male

was crouched in the front passenger seat.            Simultaneous to these

observations, Mr. Crouse watched an individual, whom he subsequently

identified as Appellant, enter the motel office. Mr. Crouse also recounted his

brief interaction with Appellant in the motel office.      He stated that he

immediately recognized Appellant “as someone [he] should know” but did

not place him as an area athlete until after Appellant left the office with the

information that he had requested. Id. at 68.

      In relation to Rea’s subsequent robbery attempt, Mr. Crouse explained

that when he heard Rea angrily demand, “give me your f**cking money,

now,” he peered around the Dutch door to see Rea leveling his weapon at

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Ms. Crouse. Id. at 70, 71-72. A sportsman, Mr. Crouse realized that Mr.

Rea’s firearm was most likely a BB gun. Hence, he elected to forego his own

loaded shotgun that was sitting nearby and simply reached across the

threshold of the Dutch door, made a pointing motion with his hands, and

shouted, “You!”    Id. at 71-72.   Rea fled.    Mr. Crouse grabbed the loaded

shotgun and initiated pursuit; however, he terminated the chase because his

neighbor’s children were playing nearby.        Mr. Crouse did not observe the

direction of Rea’s flight, but he discerned that the dark vehicle that he had

noticed earlier was no longer parked outside the motel.

        Chambersburg Borough Police Officer Matthew Lynch testified that,

while on patrol on October 31, 2011, he received a police flash alerting him

to “be on the lookout” for Colin Rea, described as a white male with blue

hair.    Rea along with another man, who was later determined to be

Appellant, were suspected of robbing the Kenmar Motel and fleeing in a dark

green car with a heavily damaged rear end.         Id. at 84-85.   Following the

report, Officer Lynch observed the suspected vehicle traveling on Cedar

Street in Chambersburg.

        Officer Lynch was familiar with Rea because he had stopped Rea in the

damaged vehicle on a prior occasion.           Hence, he expected to see Rea

operating the vehicle on that date.    However, when he initiated the traffic

stop, Appellant, whom he also recognized, was driving the car.         Rea was




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apprehended at a nearby hotel, and State Police took the pair to the State

Police Barracks in Chambersburg and impounded Rea’s automobile.

         State Police Troopers Franklin M. Hershey, Jr. and Jason Cachara

testified about the recorded post-Miranda2 statements Appellant and Rea

provided to them during the subsequent investigation.         In relation to the

October 30, 2011 robbery of the Super 8 Hotel, the audio recordings, which

were admitted during trial, indicated that Appellant operated the getaway

vehicle while Rea committed the robbery.

         Colin Rea’s recorded statement detailed Appellant’s participation in the

robbery of the Super 8 Motel.            Rea indicated that the purpose of both

robberies was to obtain money for Appellant’s homeless girlfriend and

daughter. In contrast to Appellant, who indicated that he did not know of

Rea’s intent to rob the Super 8 Motel, Rea stated that Appellant knew that

the robbery would occur and understood his role as the getaway driver. Rea

further clarified that Appellant drove to the designated meeting area, waited

for Rea to return to the car following the robbery, and drove away.

         As noted, supra, the jury convicted Appellant at the two related

criminal action numbers of two counts of conspiracy to commit robbery, and

one count each of robbery, attempted robbery, and conspiracy to commit

theft.     At criminal action number 2084-2011 the trial court sentenced
____________________________________________


2
    Miranda v. Arizona, 384 U.S. 436 (1966).



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Appellant to six to twelve years imprisonment.3 At criminal action number

2087-2011, the trial court imposed separate terms of two to four years

imprisonment on both attempted robbery and conspiracy to commit robbery.

Those sentences were imposed consecutive with each other and consecutive

to the sentences imposed at criminal action number 2084-2011, for a total

of ten to twenty years

       Appellant failed to file a direct appeal; however, he filed a timely PCRA

petition and the trial court granted him leave to file a direct appeal nunc pro

tunc. This appeal followed. His timely Rule 1925(b) statement leveled three

issues, two of which he asserts on appeal as follows:

       1.    Did the trial court’s consecutive sentences at [criminal
       action number] 2087-2011 on Count 1 (attempted robbery) and
       Count 2 (conspiracy robbery) constitute an imposition of a
       sentence greater than the lawful maximum in that “[a] person
       may not be convicted of more than one inchoate crimes of
       criminal attempt, criminal solicitation or criminal conspiracy for
       conduct designed to commit or to culminate in the commission
       of the same crime” pursuant to 18 Pa.C.S. [§] 906?

       2.     Was the evidence produced at trial sufficient to support the
       guilty verdicts?

Appellant’s brief at 7.



____________________________________________


3
   Concurrent sentences were fashioned as follows: (1) five to ten years
imprisonment for conspiracy to commit robbery; (2) six to twelve years
imprisonment for robbery; and (3) conspiracy to commit theft merged for
the purpose of sentencing.



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      As Appellant’s second issue, concerning the sufficiency of the

evidence, would entitle him to discharge if it were established, we address

that argument at the outset.     In conducting a sufficiency of the evidence

review, we examine all of the evidence admitted, even improperly admitted

evidence. Commonwealth v. Watley, 81 A.3d 108, 113 (Pa.Super. 2013)

(en banc).    We consider the evidence in the light most favorable to the

verdict winner, herein the Commonwealth, drawing all possible inferences

from the evidence in favor of the Commonwealth.           Id.   When evidence

exists to allow the fact-finder to determine beyond a reasonable doubt each

element of the crimes charged, the sufficiency claim will fail. Id.

      The evidence need not preclude the possibility of innocence entirely.

The fact finder is free to believe, in whole or in part, whatever evidence it

chooses.     Id. Additionally, the Commonwealth may prove its case by

circumstantial evidence alone. It is only when “the evidence is so weak and

inconclusive that, as a matter of law, no probability of fact can be drawn

from the combined circumstances,” that the defendant is entitled to relief.

Id. This Court is not permitted “to re-weigh the evidence and substitute our

judgment for that of the fact finder.” Id.

      Appellant argues that the Commonwealth failed to adduce sufficient

evidence to support the convictions for robbery (serious bodily injury) and

conspiracy to commit robbery at criminal action number 2084-2011 in

relation to the events that occurred on October 30, 2011, at the Super 8

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Motel. The Crimes Code defines robbery, in pertinent, part as follows: “A

person is guilty of robbery 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).

       Stated plainly, Appellant contends that the Commonwealth failed to

establish beyond a reasonable doubt that the victim, Mr. Patel, was in fear of

immediate serious bodily injury, an element of § 3701(a)(1)(ii) and the

concomitant offense of conspiracy to commit robbery.       He relies upon Mr.

Patel’s testimony that, when Rea fired the weapon immediately prior to

fleeing with the money, the noise it emitted sounded like a toy gun. From

this   statement,   Appellant    extrapolates    the   conclusion   that     the

Commonwealth failed to establish beyond a reasonable doubt that Rea’s

actions placed Mr. Patel in fear of immediate serious bodily injury.       While

Appellant does not expressly invoke this argument to challenge the

sufficiency of the evidence in relation to the attempted robbery of the

Kenmar Motel on the following evening, he refers to the facts of that case,

ostensibly to support his position that his brandishing of an identical replica




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during that ordeal did not place those victims in immediate fear of serious

bodily injury either. No relief is due.4

       The evidence adduced during the trial sustains the jury verdict. First,

it is beyond peradventure that the Commonwealth was not required to

demonstrate      that   Mr.   Patel    was     actually   fearful   of   his   life.   See

Commonwealth v. Nelson, 582 A.2d 1115, (Pa.Super. 1990) (even where

threats did not produce intended fear, robbery conviction was supported by

evidence that defendant announced robbery and brandished weapon in order

to achieve goal). In fact, as we explained in Commonwealth v. Hopkins,

747 A.2d 910 914 (Pa.Super 2000), “For the purposes of subsection

3701(a)(1)(ii), the proper focus is on the nature of the threat posed by an

assailant and whether he reasonably placed a victim in fear of ‘immediate

serious bodily injury.’” We concluded, “The threat posed by the appearance

of a firearm is calculated to inflict fear of deadly injury, not merely fear of

‘serious bodily injury.’” Id. Indeed, as the ultimate arbiter of fact, it was up

to the jury to determine whether “[the] victim was in mortal fear when a[n]

[assailant] visibly brandished a firearm.” Id. at 915-915. Thus, the victims’

actual fear is not dispositive.


____________________________________________


4
  As Appellant challenges only whether Rea placed the respective victims in
immediate fear of serious bodily injury, that is the only element of the
offenses that we address.



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      As noted supra, Mr. Patel testified that, when Rea stormed into the

motel lobby, pointed what appeared to be a handgun at his chest, and

demanded money, he was “really scared.” N.T., 11/19/12, at 25-26. Mr.

Patel had never been robbed before and was not at all familiar with guns.

Id. at 25. In fact, notwithstanding Appellant’s intimation that Mr. Patel was

not affected by what he later discovered was a “toy gun,” the certified record

reveals that Mr. Patel was not aware that the apparent handgun that Rea

had leveled at his chest during the ordeal was anything less than authentic.

He only learned that the weapon was a “toy” after the robbery had been

completed. The fact that the handgun purportedly could not actually inflict

serious bodily injury is therefore irrelevant.

      Furthermore, mindful that Appellant was charged with attempted

robbery for his role in the offenses committed at the Kenmar Motel,

Appellant’s assertion that the evidence was insufficient because Mr. and Mrs.

Crouse never feared immediate bodily injury is erroneous in fact and law.

First, it is obvious that by brandishing an apparent firearm at Ms. Crouse and

commanding, “give me your f**king money,” Rea attempted to place the

woman in fear of immediate serious bodily injury if she did not comply with

his demands.      The fact that Rea’s attempt to scare Ms. Crouse into

compliance might have been ineffectual does not negate the fact that his

actions constituted a substantial step towards executing the robbery.

Hence,   assuming,    arguendo,    that   Ms.    Crouse   never   actually   feared

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immediate serious bodily injury, evidence of Rea’s menacing conduct was

sufficient to sustain the conviction for criminal attempt. Moreover, as noted

supra, the facts of this case established that Ms. Crouse’s belief that Rea

was participating in a Halloween hoax, ceased when he started uttering

obscenities.   She explained, “I did start getting a little afraid when he

demanded money.”           N.T., 11/19/12, at 58.   Thus, both aspects of

Appellant’s claim fails.

      Having found that the certified record supports the trial court’s

conclusion that the evidence adduced during the jury trial was sufficient to

sustain the guilty verdicts for: (1) robbery graded as a first-degree felony

and (2) criminal conspiracy to commit robbery at criminal action number

2084-2011; and (3) attempted robbery at 2087-2011, we next address

Appellant’s assertion that the consecutive sentences imposed at criminal

action number 2087-2011 for the inchoate crimes of criminal conspiracy and

attempted robbery were illegal.

      The determination as to whether the trial court imposed an illegal

sentence is a question of law. Our standard of review in cases dealing with

questions of law is de novo, and our scope of review is plenary.        See

Commonwelath v. Kimmel, 125 A.3d 1272, 1275 (Pa.Super 2015) (en

banc) (“A claim that convictions merge for sentencing is a question of law;

therefore, our standard of review is de novo and our scope of review is

plenary”).

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       Pursuant to 18 Pa.C.S. § 906, regarding multiple convictions of

inchoate crimes, “A person may not be convicted of more than one of the

inchoate crimes of criminal attempt, criminal solicitation or criminal

conspiracy for conduct designed to commit or to culminate in the

commission of the same crime.” Herein, the trial court sentenced Appellant

at 2087-2011 to consecutive sentences for attempted robbery and criminal

conspiracy (robbery) for the crimes committed at the Kenmar Hotel on

October 31, 2011. As the facts supporting both offenses stem from identical

criminal   acts,   the    offense    merged    for   the   purpose   of   sentencing.5

Commonwealth v. Cooke, 492 A.2d 63 (Pa.Super. 1985) (sentence

imposed on criminal conspiracy vacated under § 906 because conviction and

sentence for inchoate crimes of criminal attempt and criminal conspiracy

based on same action violated statute).

       Judgment of sentence affirmed, in part, vacated, in part, and

remanded for resentencing consistent with this memorandum.                     Record

remanded. Jurisdiction relinquished.




____________________________________________


5
  The trial court and Commonwealth concede that the convictions and
sentences on the two inchoate offenses violated 18 Pa.C.S. § 906, and both
agree that a remand is necessary.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/1/2016




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