J-S31006-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    TAVON KIRKLAND                             :
                                               :
                       Appellant               :   No. 1038 WDA 2018

          Appeal from the Judgment of Sentence Entered May 2, 2017
      In the Court of Common Pleas of Beaver County Criminal Division at
                        No(s): CP-04-CR-0001318-2016


BEFORE: OLSON, J., STABILE, J., and McLAUGHLIN, J.

MEMORANDUM BY OLSON, J.:                                  FILED JULY 12, 2019

        Appellant, Tavon Kirkland, appeals from the judgment of sentence

entered on May 2, 2017, following his jury trial convictions for simple assault,

robbery, conspiracy to commit robbery, and conspiracy to commit aggravated

assault.1 Although we leave Appellant’s convictions undisturbed, we vacate

the punishments imposed as part of Appellant’s judgment of sentence and

remand for resentencing consistent with this memorandum.

        We briefly summarize the facts and procedural history of this case as

follows. On April 11, 2016, Appellant and James Price agreed to engage in a

plot to rob a pizza delivery driver. Erica Gutierrez was also present. Price

called Domino’s Pizza and ordered pizza and chicken wings for delivery to a

vacant house in Beaver Falls, Pennsylvania. After Price called Domino’s Pizza

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1   18 Pa.C.S.A. §§ 2701, 3701, 3701/903, and 2702/903, respectively.
J-S31006-19



a second time to inquire about the delivery, Appellant walked across the street

while Gutierrez and Price waited for the delivery on the front porch of the

abandoned residence. When the delivery driver arrived, Price asked him to

make change for $100.00 and Appellant approached the driver from behind

and hit him in the back of the head with a CO2 pellet gun. The victim lost his

glasses, fell to the ground, and Appellant and Price proceeded to kick and beat

the delivery driver. Price then brandished a 9mm firearm and shot the delivery

driver twice through his shoulder. Appellant and Price then fled in the victim’s

vehicle; Gutierrez walked away from the scene and later turned herself in to

the police. The victim was able to walk to the police station where he reported

the crimes.    Police transported the victim to the hospital where it was

determined that he had suffered two gunshot wounds.          One bullet passed

directly through the victim, while the second shot passed through his lung and

diaphragm and lodged in his liver, where it remains. The victim, however,

recovered. Police discovered the victim’s car a few weeks after the incident

in Rochester, Pennsylvania. They found the victim’s cellular telephone that

he left in his car and a Domino’s Pizza car sign on First Avenue in Beaver Falls,

Pennsylvania. Police also found the wallet of the victim’s wife and a child’s

car seat that had been in the victim’s car in a dumpster near the abandoned

vehicle.   Subsequent police investigation connected the cellular telephone

used to call Domino’s Pizza to Price and Price’s uncle.

      A three-day jury trial commenced on March 13, 2017.                    The

Commonwealth presented the testimony of the victim, Gutierrez, Joselyn

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J-S31006-19



Milliner,2 Detective Sergeant Thomas Lococco, and treating physician, Dr.

Eunice Chang. Appellant testified on his own behalf and did not present any

other witnesses. At the conclusion of trial, the jury convicted Appellant of the

aforementioned charges.

       On May 2, 2017, the trial court sentenced Appellant to an aggregate

term of eight-and-one-half to 22 years of imprisonment. More specifically,

the trial court sentenced Appellant to seven-and-one-half to 20 years of

imprisonment for conspiracy to commit robbery. The trial court imposed a

concurrent sentence of six to 20 years for conspiracy to commit aggravated

assault. On Appellant’s robbery conviction, the trial court imposed a sentence

of 19 to 84 months of incarceration to run concurrent to the sentences for

conspiracy to commit robbery and conspiracy to commit aggravated assault.

On the simple assault conviction, the trial court sentenced Appellant to 12 to

23 months of imprisonment to run consecutive to the other three sentences

imposed.

       On February 1, 2018, Appellant filed a pro se petition pursuant to the

Post-Conviction Relief Act (PCRA), 42 Pa.C.S.A. § 9541-9546, alleging
____________________________________________


2  Joselyn Milliner is Price’s cousin. N.T., 5/13/2017, at 159. She was 17
years old at the time of trial. Id. She testified that she, Appellant, and Price
lived together at the time of the crimes. Id. at 160. Milliner testified that,
the day after the crimes, Appellant was upset that Price was telling people
about the incident. Id. at 168. Milliner also testified that Appellant told her
that he and Price did not take any money from the victim. Id. at 168 and
172-173.




                                           -3-
J-S31006-19



ineffective assistance of counsel for failing to file post-sentence motions or a

direct appeal. The trial court appointed counsel who filed an amended PCRA

petition requesting nunc pro tunc reinstatement of Appellant’s direct appellate

rights. The Commonwealth conceded to reinstatement of Appellant’s direct

appeal rights. On June 19, 2018, the trial court granted nunc pro tunc relief.

This timely appeal resulted.3

       On appeal, Appellant presents the following issues for our review:

       1.)    Whether the Commonwealth presented sufficient evidence
              to support the guilty verdict found by the jury?

       2.)    Whether the jury’s verdict of guilt goes against the weight
              of the evidence presented by the Commonwealth?

       3.)    Whether [] Appellant’s trial [] counsel thoroughly examined,
              or had the opportunity to examine the potential jurors
              during voir dire, in particular, one juror who was seated on
              the jury and who later revealed, during the trial, that she
              had a [familial] relationship with a member of law
              enforcement?[4]
____________________________________________


3 Appellant filed a counseled notice of appeal on July 18, 2018. On July 19,
2018, the trial court directed Appellant to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b). Counsel for Appellant
complied timely on August 8, 2018. On August 28, 2018, the trial court issued
an opinion pursuant to Pa.R.A.P. 1925(a).

4  On this claim, counsel for Appellant solely contends that “[u]pon a more
thorough review of the record, undersigned counsel for [] Appellant reserves
the right to raise this issue as part of a future PCRA proceeding, if necessary.”
Appellant’s Brief at 10. Claims sounding in ineffective assistance of counsel
are properly brought on collateral review under the PCRA.                    See
Commonwealth v. Padilla, 80 A.3d 1238, 1247 n.10 (Pa. 2013). Thus, we
need not address this issue presently. Moreover, Appellant raised this issue
for the first time in terms of trial court error in his Rule 1925(b) statement



                                           -4-
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Appellant’s Brief at 3.

       In his first issue presented, Appellant argues that the Commonwealth

failed to prove beyond a reasonable doubt that he committed the crimes for

which the jury convicted him.              Id. at 7-9.   “He maintains that the

Commonwealth did not establish that he shot [the victim] while facilitating,

attempting, or committing a robbery or that he was an accomplice to the

robbery that resulted in the serious bodily injuries suffered by [the victim].”

Id. at 7. Appellant asserts that, “there was no evidence presented that he

acted in concert with Price” and, instead argues that Price “acted

independently and spontaneously in committing the aggravated assault.” Id.

Appellant claims that his unrebutted testimony established that Price and

Gutierrez were acting together.         Id. at 8.   Appellant relies upon his trial

testimony that “he decided to walk away and not take part.”              Id. at 9.

Alternatively, he argues that Gutierrez’s trial testimony was uncorroborated

and came from a “corrupt and polluted source.”5 Id. at 8. Thus, Appellant
____________________________________________


and he cannot raise a new theory for relief on appeal based upon trial counsel
ineffectiveness. See Pa.R.A.P. 302(a) (“Issues not raised in the lower court
cannot be raised for the first time on appeal.”); see also Commonwealth v.
Cline, 177 A.3d 922, 927 (Pa. Super. 2017) (“A new and different theory of
relief may not be successfully advanced for the first time on appeal.”). As
Appellant has abandoned any request for direct review of alleged trial court
error, we need not examine this contention at this time.

5   In conjunction with his sufficiency of the evidence claim, Appellant also
suggests that trial counsel was ineffective for failing to request a “polluted and
corrupted source” jury instruction. Appellant’s Brief at 9. He acknowledges,
however, that such claim is properly raised in a future PCRA petition. Id. We



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contends the Commonwealth failed to present sufficient identification

evidence to sustain his convictions. Id.

       This Court has previously determined:

       Because a determination of evidentiary sufficiency presents a
       question of law, our standard of review is de novo and our scope
       of review is plenary. In reviewing the sufficiency of the evidence,
       we must determine whether the evidence admitted at trial and all
       reasonable inferences drawn therefrom, viewed in the light most
       favorable to the Commonwealth as verdict winner, were sufficient
       to prove every element of the offense beyond a reasonable doubt.
       The facts and circumstances established by the Commonwealth
       need not preclude every possibility of innocence. It is within the
       province of the fact-finder to determine the weight to be accorded
       to each witness's testimony and to believe all, part, or none of the
       evidence. The Commonwealth may sustain its burden of proving
       every element of the crime by means of wholly circumstantial
       evidence. Moreover, as an appellate court, we may not re-weigh
       the evidence and substitute our judgment for that of the
       fact-finder.

Commonwealth v. Williams, 176 A.3d 298, 305–306 (Pa. Super. 2017)

(internal citations, quotations, and original brackets omitted).

       Initially, we reject Appellant’s suggestion that we re-weigh the evidence

in the light most favorable to him and usurp the jury’s credibility

determinations regarding Gutierrez. As our standard of review requires, we

may not substitute our judgment for the jury’s determinations.         Gutierrez

testified that Price ordered food from Domino’s Pizza to be delivered to the

abandoned house, Appellant went across the street before the delivery, and

then came up behind the victim and hit him with a “CO2 cartridge gun […i]n
____________________________________________


agree and will not address this portion of Appellant’s premature claim. See
Padilla, supra.

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J-S31006-19



the back of the head.” N.T., 5/13/2017, at 104-105. Gutierrez testified that

when the victim fell to the ground, Price and Appellant beat him

simultaneously, and then Price shot the victim twice. Id. at 105. She stated

that both men fled in the victim’s car. Id.     This was sufficient evidence to

identify Appellant as a participant in the crimes.

      Moreover, we reject Appellant’s contention that Gutierrez’s trial

testimony was uncorroborated. While Appellant testified that Gutierrez was

involved in the incident instead of him, the victim testified otherwise. The

victim testified that Price was standing on the porch of the abandoned house

and that “a Latino female [was] behind [Price]” when the victim was struck

from behind. N.T., 5/13/2017, at 37 (emphasis added). More specifically, the

victim testified that the female was sitting on a railing behind Price when Price

took the pizza from the victim and that a third individual struck him from

behind. Id. at 38; id. at 78-79 (“I said there was a third person, because if

there’s two people I’m staring at and I get hit from behind, I don’t see them

wrapping their arms around me and hitting me in the back of the head.”); id.

at 80 (“It would have had to have been somebody other than the Latino

[woman] and the black male that I met with on the porch.”). The victim also

testified that “two black males” took his car after he was beaten. Id. at 72

(emphasis added). Finally, the following exchange occurred at trial:

      [The Commonwealth]: [H]ow many people acted together to
                          beat you?

      [The victim]:            Two.


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J-S31006-19


      [The Commonwealth]: And how many people took your vehicle?

      [The victim]:            Two.

      [The Commonwealth]: And your cell[ular] phone?

      [The victim]:            Two.

      [The Commonwealth]: And your child’s booster seats?

      [The victim]:            Two.

      [The Commonwealth]: And your wife’s wallet?

      [The victim]:            Two.

      [The Commonwealth]: And it was not the Latino female that you
                          saw?

      [The victim]:            Correct.

Id. at 82.

      Taken together, we conclude that the Commonwealth presented

sufficient evidence that Price and Appellant worked in concert with one another

to assault and rob the victim. While Appellant testified that he walked away

from the incident and claimed that Gutierrez was the second actor, the record

belies Appellant’s argument. Accordingly, we conclude that there is no merit

to Appellant’s first issue.

      Next, Appellant claims that the verdict was against the weight of the

evidence. On this issue, Appellant argues, in sum:

      Here, the [t]rial [c]ourt abused its discretion by not instructing the
      jury as to accomplice testimony []. Although Gutierrez was not
      charged as an accomplice in the instant case, the jury should have
      been instructed that they should have considered that she
      received leniency from the Commonwealth when judging her
      credibility. The record of evidence at trial supported giving that

                                      -8-
J-S31006-19


       instruction as part of the [t]rial [c]ourt’s charge. [] Appellant
       argues that it is a shock to one’s sense of justice that the jury was
       not told to consider th[at] Gutierrez was, in fact, a corrupt and
       polluted source. Had the jury been given that instruction, the
       outcome of this case may have gone in favor of [] Appellant.

Appellant’s Brief at 10.

       An appellate court's standard of review when presented with a weight

of the evidence claim is distinct from the standard of review applied by the

trial court:

       Appellate review of a weight claim is a review of the exercise of
       discretion, not of the underlying question of whether the verdict
       is against the weight of the evidence. Because the trial judge has
       had the opportunity to hear and see the evidence presented, an
       appellate court will give the gravest consideration to the findings
       and reasons advanced by the trial judge when reviewing a trial
       court's determination that the verdict is [or is not] against the
       weight of the evidence. One of the least assailable reasons for
       granting or denying a new trial is the lower court's conviction that
       the verdict was or was not against the weight of the evidence and
       that a new trial should be granted in the interest of justice.

Commonwealth v. Sebolka, 205 A.3d 329, 341 (Pa. Super. 2019) (internal

citations and original emphasis omitted).

       Initially, we note that while the trial court granted Appellant nunc pro

tunc relief, Appellant did not preserve his weight of the evidence claim as

required under Pa.R.Crim.P. 607(A).6           Moreover, on appeal, Appellant simply

____________________________________________


6 (A) A claim that the verdict was against the weight of the evidence shall be
raised with the trial judge in a motion for a new trial:

       (1) orally, on the record, at any time before sentencing;

       (2) by written motion at any time before sentencing; or



                                           -9-
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has not presented a weight of the evidence claim for our review. Instead,

Appellant faults the trial court for failing to give a “corrupt source” jury

instruction. Appellant did not present any allegation of error pertaining to jury

instructions in his statement of errors complained of on appeal pursuant to

Pa.R.A.P. 1925(b), the trial court never ruled on such a claim, and we cannot

address it for the first time on appeal. See Pa.R.A.P. 302(a); Cline, 177 A.3d

at 927 (“A new and different theory of relief may not be successfully advanced

for the first time on appeal.”); see also n. 5 supra.

       For all of the foregoing reasons, Appellant is not entitled to relief on the

issues presented on appeal. Accordingly, we affirm Appellant’s convictions.

However, upon further review of the record, we conclude that the trial court

imposed an illegal sentence.          A challenge to the legality of a particular

sentence may be reviewed by any court on direct appeal; it need not be

preserved in the lower courts to be reviewable and may even be raised by an

appellate court sua sponte. See Commonwealth v. Bebout, 186 A.3d 462,

466 (Pa. Super. 2018), citing Montgomery v. Louisiana, –– U.S. ––, 136



____________________________________________




       (3) in a post-sentence motion.

Pa.R.Crim.P. 607. Upon review, Appellant did not raise his weight claim via
one of the three options available pursuant to Rule 607. An appellate weight
challenge is an assessment of the trial court’s exercise of discretion and, thus,
the trial court must rule on that issue first. As such, Appellant has waived his
weight of the evidence claim. See Commonwealth v. Kinney, 157 A.3d
968, 972 (Pa. Super. 2017).

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S.Ct. 718 (2016) (stating that because “[a] conviction or sentence imposed in

violation of a substantive rule is not just erroneous but contrary to law and,

as a result, void[, i]t follows, as a general principle, that a court has no

authority to leave in place a conviction or sentence that violates a substantive

rule”). Here, as we discuss in detail below, the trial court illegally sentenced

Appellant for two conspiracy convictions that culminated during the

commission of the same crime, despite a statutory prohibition under 18

Pa.C.S.A. § 906. This issue implicates the legality of Appellant’s sentence.

See Commonwealth v. Jacobs, 39 A.3d 977, 982 (Pa. 2012) (opinion

announcing the judgment of the court) (“[S]eparate sentences […] barred by

Section 906's prohibition of multiple sentences for inchoate crimes […] relates

to the legality of sentence[].”).   An issue relating to legality of sentence

presents a question of law for our review.      Id. (citation omitted). “When

addressing such questions of law, we employ a plenary scope of review, and

our standard of review is de novo.” Id.

      We begin with the definition of conspiracy, which is as follows:

      (a)   Definition of conspiracy.--A person is guilty of conspiracy
            with another person or persons to commit a crime if with
            the intent of promoting or facilitating its commission he:

            (1)   agrees with such other person or persons that they or
                  one or more of them will engage in conduct which
                  constitutes such crime or an attempt or solicitation to
                  commit such crime; or

            (2)   agrees to aid such other person or persons in the
                  planning or commission of such crime or of an attempt
                  or solicitation to commit such crime.

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18 Pa.C.S.A. § 903(a). “If a person conspires to commit a number of crimes,

he is guilty of only one conspiracy so long as such multiple crimes are the

object of the same agreement or continuous conspiratorial relationship.” 18

Pa.C.S.A. § 903(c). “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.” 18 Pa.C.S.A. § 906.

      In Jacobs, our Supreme Court examined the application of Section 906

in circumstances relevant to those currently before us:

      The full text of Section 906 of the Crimes Code, entitled “Multiple
      convictions of inchoate crimes barred,” provides as follows: “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.” 18 Pa.C.S.A. § 906. […T]he
      Superior Court has interpreted “convicted” in Section 906 to mean
      the entry of a judgment of sentence, rather than a finding of guilt
      by the jury. See Commonwealth v. Grekis, 601 A.2d 1284,
      1295 (Pa. Super. 1992) (“Section 906 is designed to eliminate
      multiple convictions, i.e., judgments of sentence, for conduct
      which constitutes preparation for a single criminal objective.”);
      Commonwealth v. Maguire, 452 A.2d 1047, 1049 (Pa. Super.
      1982) (rejecting the defendant's argument that “convicted” in
      Section 906 is equivalent to the jury's verdict: “When the law
      speaks of a ‘conviction,’ it means a judgment, and not merely a
      verdict, which in common parlance is called a ‘conviction.’”).
      [Accordingly,] it is not a violation of Section 906 for the jury to
      find a defendant guilty of multiple inchoate crimes designed to
      culminate in the same crime; a problem arises only when the trial
      court imposes multiple sentences for those inchoate crimes that
      are designed to culminate in the same crime.

                           *           *            *


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     Applying Section 906, [our Supreme Court has] held that
     “inchoate crimes merge only when directed to the commission of
     the same crime, not merely because they arise out of the same
     incident.” Commonwealth v. Graves, 508 A.2d 1198, 1198 (Pa.
     1986) (per curiam). In determining whether inchoate crimes are
     directed to the commission of the same crime, [our Supreme
     Court has] taken a narrow view of the object crime. In Graves,
     for example, the defendant was convicted and sentenced for
     criminal conspiracy and criminal solicitation for his part in an
     incident in which he conspired with fellow gang members to
     assault three police officers, and individually solicited one gang
     member to murder one police officer. Id. at 1199 (Zappala, J.,
     dissenting). Consecutive sentences were imposed for the
     conspiracy and solicitation. On appeal, [our Supreme] Court
     approved of the two sentences. [Graves] held that [] review of
     the record revealed that even though the two inchoate crimes
     arose out of the “same incident,” they were directed at different
     ends, and therefore did not merge at sentencing: the defendant
     conspired to assault three police officers and discreetly solicited
     the murder of one of the officers. [Id.] at 1198. Thus, a person
     may be convicted and sentenced for two inchoate crimes that arise
     out of the same incident which were not designed to culminate in
     the commission of the same crime.

Jacobs, 39 A.3d 977, 982–983 (original brackets omitted; new brackets

added).

     Moreover, this Court has determined:

     A single, continuing conspiracy is demonstrated where the
     evidence proves that the essential feature of the existing
     conspiracy was a common plan or scheme to achieve a common,
     single, comprehensive goal.... A single, continuing conspiracy may
     contemplate a series of offenses, or be comprised of a series of
     steps in the formation of a larger, general conspiracy....
     Therefore, where the evidence at trial is sufficient for the jury to
     infer that the essential features of the existing conspiracy were a
     common plan or scheme to achieve a common, single,
     comprehensive goal or end, then the conclusion that the
     conspiracy was a single, continuing conspiracy is justified.




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Commonwealth v. Troop, 571 A.2d 1084, 1089–1090 (Pa. Super. 1990);

see also Commonwealth v. Henkel, 487 A.2d 1010, 1013 (Pa. Super.

1985) (“[C]onspiracy is not severable as to diverse crimes contemplated by a

single agreement[.]”).

      In determining whether a single or multiple conspiracy has been

established, we consider several relevant factors:

      The factors most commonly considered in a totality of the
      circumstances analysis of the single vs. multiple conspiracies issue
      are: the number of overt acts in common; the overlap of
      personnel; the time period during which the alleged acts took
      place; the similarity in methods of operation; the locations in
      which the alleged acts took place; the extent to which the
      purported conspiracies share a common objective; and, the
      degree to which interdependence is needed for the overall
      operation to succeed.

Commonwealth v. Davis, 704 A.2d 650, 654 (Pa. Super. 1997) (ellipsis

omitted).

      Here, when viewing the totality of the circumstances in this case, it is

clear that there was a common plan or scheme to achieve a common, single,

comprehensive goal – the robbery of a pizza deliveryman. Considering the

factors in Davis, all of the crimes took place at the same time in the same

location and were committed by the same cohorts acting in concert with one

another. Thus, there was sufficient evidence showing a progression of events

from a single common agreement or understanding. See Commonwealth

v. Crocker, 389 A.2d 601 (Pa. Super. 1978) (“18 Pa.C.S.A. § 906 explicitly

bars appellant’s conviction and sentencing for both criminal attempt and


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J-S31006-19


possession of an instrument of crime[; a]ppellant’s conduct [of] nighttime

entry into an enclosed Bell Telephone storage lot while in possession of

cable-cutting tools was designed to culminate in the commission of only one

crime: theft of Bell Telephone’s cable.”). Hence, in this case, the trial court

erred by sentencing Appellant for both conspiracy to commit burglary and

conspiracy to commit aggravated assault.

       Accordingly, we turn now to discuss Appellant’s remedy.      Generally,

when there is an error in sentencing a defendant to multiple inchoate crimes,

we have the option to either remand for resentencing or to amend the

sentence directly.      Commonwealth v. Ford, 461 A.2d 1281, 1289 (Pa.

Super. 1983). When sentences are imposed concurrently, we can amend the

punishment and avoid upsetting the overall sentencing scheme. See

Commonwealth v. Martinez, 153 A.3d 1025, 1033 (Pa. Super. 2016). In

such instances, we vacate the concurrent sentence for the lesser offense and

let stand the sentence for the greater offense.     Ford, 461 A.2d at 1298.

However, in instances where consecutive sentences are imposed for inchoate

offenses of equal grading,7 we have determined it “prudent to vacate and

remand, leaving it to the sentencing court to decide which one of the []




____________________________________________


7  See 18 Pa.C.S.A. § 905 (“[A]ttempt, solicitation and conspiracy are crimes
of the same grade and degree as the most serious offense which is attempted
or solicited or is an object of the conspiracy”).

                                          - 15 -
J-S31006-19


inchoate convictions to let stand and the sentence to be entered in accordance

thereto.” Id. at 1289–1290. Finally, it is well-settled that:

      [I]f a trial court errs in its sentence on one count in a multi-count
      case, then all sentences for all counts will be vacated so that the
      court can restructure its entire sentencing scheme.

Commonwealth v. Baney, 187 A.3d 1020, 1023 (Pa. Super. 2018), citing

Commonwealth v. Bartrug, 732 A.2d 1287, 1289 (Pa. Super. 1999), appeal

denied, 747 A.2d 896 (Pa. 1999) (citations omitted) (holding that the PCRA

court did not abuse its discretion in vacating entire sentence before

resentencing, rather than addressing only illegal part of sentence); see also

Commonwealth v. Veon, 150 A.3d 435, 456 (Pa. 2016) (remanding for

resentencing where vacating sentence of imprisonment and restitution left the

“comprehensive sentencing scheme unmoored from its foundation”).

      Finally, we note that there is an issue concerning the merger of

Appellant’s sentences, which also implicates the legality of his sentence. See

Commonwealth v. Nero, 58 A.3d 802, 806 (Pa. Super. 2012) (stating that

“[a] claim that crimes should have merged for sentencing purposes raises a

challenge to the legality of the sentence”) (citation omitted). We previously

determined:

      Section 9765 of the Pennsylvania Sentencing Code provides as
      follows regarding the merger of crimes for sentencing purposes:

            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

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J-S31006-19


              sentence the defendant only on the higher[-]graded
              offense.

      42 Pa.C.S.[A.] § 9765. 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)(case

citation omitted). The Jenkins Court concluded that, “simple assault does

not require proof of any statutory element that robbery does not also require.”

Id. at 1062; see also id. at n.6 (“simple assault does not require proof of a

fact which robbery does not—the assaultive conduct that is the only necessary

element of simple assault is subsumed by robbery's requirement of “bodily

injury” (or threat thereof)”), citing 18 Pa.C.S.A. §§ 2701(a)(1) and

3701(a)(1)(iv).

      Thus,

      the threshold question is whether an appellant committed one
      solitary criminal act. The answer to this question does not turn on
      whether there was a “break in the chain” of criminal activity.
      Rather, the answer turns on whether the actor commits multiple
      criminal acts beyond that which is necessary to establish the bare
      elements of the additional crime. If so, then the defendant has
      committed more than one criminal act. This focus is designed to
      prevent defendants from receiving a volume discount on crime.

Commonwealth v. Orie, 88 A.3d 983, 1020 (Pa. Super. 2014) (cleaned up).

When looking at whether crimes arose out of the same criminal act we

specifically examine the crimes as charged by the Commonwealth in the

criminal information. Jenkins, 96 A.3d at 1060-1061.       Here, the criminal



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information specifies, in relation to the simple assault charge, that Appellant

struck the victim in the head with a CO2 gun. This action was part and parcel

of the robbery. There were no facts showing that Appellant independently

engaged in a simple assault either before or after the robbery. As such, the

sentence for simple assault should have merged with robbery for sentencing

purposes.

      Accordingly, we vacate the judgment of sentence for simple assault,

robbery, conspiracy to commit robbery, and conspiracy to commit aggravated

assault.    As we have upset the trial court’s overall sentencing scheme, we

remand for resentencing. Upon remand, the sentencing court must decide

which one of the two conspiracy convictions to let stand and the sentence to

be entered in accordance thereto. Moreover, the trial court should not impose

a sentence for simple assault, because it merges with robbery under the facts

of this case.

      Convictions affirmed. Case remanded for resentencing in accordance

with this memorandum. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/12/2019




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