J-S64026-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

MICHAEL PARKER

                            Appellant                No. 309 MDA 2015


          Appeal from the Judgment of Sentence of January 23, 2015
              In the Court of Common Pleas of Dauphin County
              Criminal Division at No.: CP-22-CR-0002383-2013


COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

MICHAEL PARKER

                            Appellant                No. 310 MDA 2015


          Appeal from the Judgment of Sentence of January 23, 2015
              In the Court of Common Pleas of Dauphin County
              Criminal Division at No.: CP-22-CR-0005688-2013



BEFORE: FORD ELLIOTT, P.J.E., WECHT, J., and FITZGERALD, J.*

MEMORANDUM BY WECHT, J.:                        FILED DECEMBER 14, 2015

       Michael Parker appeals his January 23, 2015 judgments of sentence.

Parker was found guilty of six charges in two separate dockets.1     Parker
____________________________________________


*
       Former Justice specially assigned to the Superior Court.
J-S64026-15



challenges the weight of the evidence regarding his conviction of criminal

attempt to commit robbery of a financial institution, 18 Pa.C.S. § 901(a),

and the legality of his conviction of flight to avoid apprehension, 18 Pa.C.S.

§ 5126(a). We hold that Parker is not entitled to relief on those challenges.

However, because a portion of his sentence is illegal, we vacate that portion

of Parker’s sentence, and we remand for resentencing.

      At docket number CP-22-CR-0005688-2013 (“5688-2013”), after a

jury trial, Parker was found guilty of criminal attempt to commit robbery of a

financial institution on September 16, 2014.2 At docket number CP-22-CR-

0002383-2013 (“2383-2013”), the trial court, from the bench, found Parker

guilty of burglary, criminal attempt to possess a controlled substance with

the intent to deliver (“PWID”), resisting arrest, flight to avoid apprehension,

and reckless driving on December 22, 2014.3

      At docket number 5688-2013, the trial court provided the following

factual history of that case:


                       _______________________
(Footnote Continued)
1
      On March 3, 2015, this Court, sua sponte, consolidated Parker’s
separate appeals at both dockets. See Pa.R.A.P. 513 (affording discretion to
this Court to consolidate two or more appeals in different cases into a single
appeal).
2
      18. Pa.C.S. §§ 901(a), 3701(a)(1)(vi).
3
      18 Pa.C.S. §§ 3502(a)(1), 901(a), 35 P.S. § 780-113(a)(30), 18
Pa.C.S. §§ 5104, 5126(a), and 75 Pa.C.S. § 3736(a), respectively.




                                            -2-
J-S64026-15


     On the day of the incident, Randy Hall [] was working as a bank
     teller for Members 1st Federal Credit Union (“Members 1st”) in
     the Strawberry Square branch, Harrisburg, Pennsylvania. When
     he returned to his teller station after his lunch break, a man
     walked up to his station that was located directly inside the
     entrance and, in a low voice, said, “Give me all of your money.”
     [Hall] described the man as wearing a black hat, black hoodie[,]
     and jeans. While testifying, [Hall] identified the man from the
     bank as [Parker].      [Hall] described [Parker’s] demand and
     demeanor as firm, serious[,] and not joking in any respect.
     [Hall] testified that, at the moment [Parker] approached and
     made his demand, he was “caught off guard and [his] heart
     dropped.”

     When [Hall] responded that he was closed as he had no money
     drawer, [Parker] repeated, “Give me all your money.” After the
     second demand, [Parker] began to leave the bank but, stopped
     and returned to [Hall’s] teller station. Upon his return, [Parker]
     asked [Hall] if he could cash a money order to which he replied,
     “If you’re a member with us.” [Parker] never produced the
     money order he allegedly wanted to cash. [Parker] was not a
     member so he left the branch. At this point in time, [Hall]
     notified his assistant bank manager of what had happened and
     the police were called.

     During the trial, [Hall] identified the security video obtained from
     the bank branch on the day of the robbery. He also described
     the events depicted in the video. The description matched
     [Hall’s] testimony about [Parker’s] actions and his own actions
     during the attempted robbery. He acknowledged that [Parker]
     did not visibly present a weapon.

     Detective Richard Gibney [] of the Harrisburg Bureau of Police []
     was assigned to investigate the attempted bank robbery.
     [Detective] Gibney was assigned to the Federal Bureau of
     Investigation (“FBI”) Safe Streets Task Force and his duties
     included investigating bank robberies.

     When he arrived on the scene of the incident, [Detective] Gibney
     described [Hall] as “shaken, visibly shaken.” [Detective] Gibney
     interviewed Hall to gather the details of his encounter with
     [Parker]. He also obtained a series of still photographs taken
     from the bank security video which were disseminated to media
     outlets in the hope that the suspect would be found.



                                    -3-
J-S64026-15


       On the next day, [Detective] Gibney was called to the Harrisburg
       police station at approximately 6:45 p.m. as [Parker] had
       voluntarily come in after learning of the dissemination of his
       picture. He was accompanied by his girlfriend and his girlfriend’s
       father. After [Parker] was Mirandized,[4] [Detective] Gibney
       questioned him about the attempted robbery and [Parker]
       replied that he knew nothing about it. [Detective] Gibney then
       showed him the still photos taken from the video and asked why
       he was in the bank. [Parker] spoke about being stressed out
       and hitting a low point in life instead of providing him with an
       explanation regarding his presence at Member’s 1st. Eventually,
       [Parker] told [Detective] Gibney that he was probably just
       passing through and never mentioned a money order. Through
       his investigation, [Detective] Gibney discovered that [Parker] did
       not have an account with Members 1st and never did. During
       the interview, [Detective] Gibney recognized [Parker’s] hat as
       the same type he was wearing in the security video.

       Ms. Dolisa Underwood [], [Parker’s] girlfriend, testified on behalf
       of [Parker]. According to [Underwood], on the day of the
       incident she and [Parker] left the house together, took their
       children to their grandparents’ house[,] and went to a check
       cashing establishment to cash a money order for [thirty-seven
       dollars].   The check[-]cashing store was closed so they
       proceeded to Harrisburg together where [Underwood] went to
       work and [Parker] “. . . went his separate way.”

       Later that evening, [Underwood] was alerted to the incident at
       Members 1st by a family [member] who had seen [Parker’s]
       picture on a news clip. She convinced [Parker] to go to the
       police station with her and her father to find out what had
       happened and why his picture was on the news.

       [Underwood] was in the interview room with [Detective] Gibney.
       She stated that [Parker] had been acting abnormally or just “not
       with it” when discussing the robbery. [Underwood] testified that
       [Parker] kept denying that he committed the robbery and would
       not give [Detective] Gibney a reason for being in the bank;
       instead, [Parker] said 1. he didn’t know why he was there; 2. he
       was passing through; and, 3. he was just joking with the teller.

____________________________________________


4
       Miranda v. Arizona, 384 U.S. 436 (1966).



                                           -4-
J-S64026-15


      According to [Underwood], [Parker] did not mention the money
      order during the interview.

      During [Underwood’s] testimony, the parties entered a
      stipulation on the record that a money order in the amount of
      [thirty-seven dollars] was found in [Parker’s] pocket on the day
      of his arrest.

Trial Court Opinion (“T.C.O.”), 6/22/2015, at 3-6 (bracketed material within

direct quotes in the original; footnotes and citations to the notes of

testimony omitted).

      At docket number 2383-2013, the trial court provided the following

factual history of that case:

      On April 9, 2013, Detective Nicholas Licata [] was working
      undercover for the Harrisburg Bureau of Police [] with the vice
      and organized crime unit. Around 10:15 a.m., he was patrolling
      in the area of 16th and Putnam Streets in Harrisburg near a bar
      called OD’s Plantation when he encountered [Parker]. [Parker]
      passed [Detective] Licata while driving in the opposite direction
      on 16th Street in a silver Chevrolet bearing a New York license
      plate. [Detective] Licata testified that [Parker] made a waving
      gesture to him signaling him to pull over into the nearby parking
      lot.

      Based on his experience and the fact that he was patrolling an
      area known for high drug, high crime activity, [Detective] Licata
      suspected that [Parker] was trying to sell him illegal drugs.
      However, since he was alone on patrol, he decided to leave the
      area by driving eastbound on Sycamore Street. [Parker] turned
      his car around to follow [Detective] Licata. In response to
      [Parker’s] actions, [Detective] Licata pulled over and rolled down
      his driver’s side window. [Parker] pulled up next to him and
      asked [Detective] Licata what he wanted to which the Detective
      replied, “. . . I was looking for my friend Jay and I wanted some
      hard.” [Detective] Licata explained that “Jay” is a common
      name that drug dealers use and “hard” is a street slang term for
      crack cocaine. After [Parker] told him that he had “hard,”
      [Detective] Licata told him he did not like to deal with new
      people so he would keep looking for his friend.


                                    -5-
J-S64026-15


     [Parker] would not take no for an answer. He kept insisting that
     either [Detective] Licata come to his car or that [Detective]
     Licata let him in his car. [Parker] then reversed his car, parked
     behind the police vehicle[,] and approached the driver’s side
     window with a plastic baggie containing what [Detective] Licata
     suspected to be crack cocaine.        [Detective] Licata tried to
     convince [Parker] to give him his phone number so he could set
     up a meeting later when he had a chance to call other officers
     for support. [Parker] would not agree so [Detective] Licata
     drove away.

     When [Parker] began following [Detective] Licata in his car he
     radioed for police back up [sic]. While driving north on 17th
     Street, [Parker] passed him and gestured with his hands in a
     way that [Detective] Licata described as asking “what are you
     doing?” [Detective] Licata continued to drive in the area of 17th
     Street around the Hall Manor public housing complex in order to
     keep track of [Parker’s] whereabouts as he waited for police
     back up [sic] to arrive. Eventually, [Parker] backed into a
     parking spot in a lot by 32 Row Hall Manor. [Detective] Licata
     parked in a spot about [two-hundred] yards west of the parking
     lot at a point where he could still see [Parker]. [Parker] left the
     lot and parked near [Detective] Licata’s vehicle, got out[,] and
     walked towards his vehicle[,] which prompted [Detective] Licata
     to drive away. As [Detective] Licata was driving away, [Parker]
     yelled at him to “get out of the hood if [you] wasn’t [sic] going
     to buy shit.”

     [Detective] Licata drove away to get out of view, but shortly
     returned to the area of the parking lot where [Parker] had been
     parked and he was there again. The uniformed patrol back up
     [sic] arrived and blocked [Parker] in from the front, but he
     immediately reversed and swerved out of the parking lot and
     fled west. As [Parker] was fleeing in his vehicle, a police cruiser
     was coming from the opposite direction.              Right where
     [Detective] Licata was parked, [Parker] jumped out of his rolling
     vehicle[,] which hit a parked car[] and ran through Hall Manor
     toward the fence separating Hall Manor and the Park
     Apartments. [Detective] Licata and another officer gave chase
     on foot and spotted him running into an apartment building at
     1405 South 15th Street. After checking the rear of the building,
     the officers began looking for him in the apartments.

     Officer Colin Kerns [] responded to [Detective] Licata’s radio call
     for assistance. As he arrived in the area of 17th and Hanover

                                    -6-
J-S64026-15


     Streets, he observed another officer attempt to stop the silver
     Chevrolet vehicle[,] which suddenly moved in reverse. Officer
     Kerns saw the driver exit the vehicle and flee on foot prompting
     him to give chase. Despite multiple officers chasing him and
     commanding him to stop, [Parker] climbed over a fencing [sic]
     separating Hall Manor and the Park Apartments. Once he was
     over the fence, [Parker] paused and turned toward the direction
     of Hall Manor[,] which allowed Officer Kerns to see his face. He
     then observed [Parker] walk to the front door of the 1405 South
     15th Street Park Apartments.        Officer Kerns reported his
     observation to the other responding officers by radio.
     Responding officers surrounded the apartment building.

     At the time of the incident[,] Latoya Carter [] lived at 1405
     South 15th Street, Apartment 204, with her [six-year-old]
     daughter.    [Carter] had heard someone “fiddling” with her
     doorknob[,] which caused her to go to the door where she found
     [Parker]. She stated that the door opened as soon as she got to
     it. [Parker] entered the apartment and asked her to hide him
     because someone tried to “jump” him outside. [Carter] testified
     that she played along by telling him to hide in her bedroom so
     she could take her child and leave the apartment for safety.

     As [Carter] ran from the building, officers were already inside
     searching for the suspect. She told officers that an unknown
     man had run into her apartment and she gave them permission
     to investigate. Officers located [Parker] hiding in a bedroom
     closet. Police gave [Parker] three warnings that if he did not
     come out on his own, they were going in with a K-9 dog. He did
     not comply, so the K-9 dog was released to retrieve him from
     the closet.

     After he returned to his patrol car, Officer Kerns learned that a
     suspect was in custody at 1405 Park Apartments.             When
     [Officer] Kerns went to the apartment, he positively identified
     [Parker] as the person he had been chasing. [Detective] Licata
     also positively identified the person in the closet as the person
     he had been interacting with since his attempt to sell him illegal
     narcotics.

Id. at 11-14 (bracketed material within direct quotes in the original;

footnotes and citations to the notes of testimony omitted).



                                    -7-
J-S64026-15



      After deferring sentencing at both dockets, the trial court sentenced

Parker on January 23, 2015.      At docket number 2383-2013, Parker was

sentenced to an aggregate term of five to ten years’ imprisonment for his

convictions of burglary, criminal attempt—PWID, resisting arrest, flight to

avoid apprehension, and reckless driving, which included a sentence of six to

twelve months’ imprisonment on the flight to avoid apprehension count and

a concurrent five to ten years’ imprisonment on the burglary count.       At

docket number 5688-2013, Parker was sentenced to two to five years’

imprisonment for his conviction of criminal attempt—robbery of a financial

institution.   As a result of both sentences, Parker received an aggregate

sentence of seven to fifteen years’ imprisonment.

      Parker filed a post-sentence motion on docket number 5688-2013 on

January 29, 2015, which the trial court denied on February 2, 2015.

Regarding docket number 2383-2013, Parker filed a post-sentence motion

on February 2, 2015, which the trial court denied on February 10, 2015. On

February 17, 2015, Parker simultaneously filed a notice of appeal for both

dockets.

      Parker filed a petition to proceed pro se on direct appeal for both

cases, which the trial court granted on March 2, 2015.       The trial court

ordered Parker to file a concise statement of errors complained of on appeal

pursuant to Pa.R.A.P. 1925(b) for each docket.      In response to the trial

court’s order, Parker filed a petition for an extension of time to file his

concise statements, which the trial court granted on March 17, 2015.

                                    -8-
J-S64026-15



       On April 17, 2015, the trial court appointed Parker new counsel and

provided him additional time to file an amended concise statement, which

Parker timely filed on May 19, 2015. On June 22, 2015, the trial court filed

an opinion pursuant to Pa.R.A.P. 1925(a).

       Parker raises two issues for our review:

       I. Whether [Parker’s] attempted robbery conviction was against
          the weight of the evidence?

       II. Whether as a matter of law [Parker] should not have been
           convicted of both burglary and flight?

Brief for Parker at 7 (bold omitted).

       In his first issue, Parker claims that the jury’s verdict regarding his

attempted robbery conviction was against the weight of the evidence.5 Brief

for Parker at 10-12. Accordingly, we review the weight of the evidence as to

only that conviction.

       An allegation that the verdict is against the weight of the evidence is

addressed to the discretion of the trial court. Commonwealth v. Dupre,

866 A.2d 1089, 1101 (Pa. Super. 2005) (citing Commonwealth v.

Sullivan,     820     A.2d     795,     805–06   (Pa.   Super.   2003)   (quoting

Commonwealth v. Widmer, 744 A.2d 745, 751–52 (Pa. 2000))).                   The

Pennsylvania Supreme Court has explained that “[a]ppellate review of a

weight claim is a review of the exercise of discretion, not of the underlying
____________________________________________


5
      Pursuant to Pa.R.Crim.P. 607(A)(3), Parker preserved his weight
challenge in his post-sentence motion.



                                           -9-
J-S64026-15



question of whether the verdict is against the weight of the evidence.”

Widmer, 744 A.2d at 753 (citation omitted). To grant a new trial upon the

basis that the verdict is against the weight of the evidence, this Court has

explained that “the evidence must be ‘so tenuous, vague and uncertain that

the verdict shocks the conscience of the court.’” Sullivan, 820 A.2d at 806

(quoting Commonwealth v. La, 640 A.2d 1336, 1351 (Pa. Super. 1994)).

      [This Court shall not undertake to reassess credibility of
      witnesses, as] it is well settled that we cannot substitute our
      judgment for that of the trier of fact. Commonwealth v.
      Holley, 945 A.2d 241, 246 (Pa. Super. 2008). Further, the
      finder of fact was free to believe the Commonwealth’s witnesses
      and to disbelieve the witness for the Appellant.                  See
      Commonwealth v. Griscavage, 517 A.2d 1256 (Pa. 1986) (the
      finder of fact is free to believe all, none, or part of the testimony
      presented at trial).


Commonwealth v. Bozic, 997 A.2d 1211, 1223-24 (Pa. Super. 2010)

(citing Commonwealth v. Manley, 985 A.2d 256, 262 (Pa. Super. 2009))

(citations modified).

      “A person is guilty of robbery if, in the course of committing a theft,

he[] takes or removes money of a financial institution without the

permission of the financial institution by making a demand of an employee

of the financial institution orally or in writing with the intent to deprive the

financial institution thereof.”   18 Pa.C.S. § 3701(a)(1)(vi).     Further, “[a]

person commits an attempt when, with the intent to commit a specific crime,

he does any act which constitutes a substantial step toward the commission

of that crime.” 18 Pa.C.S. § 901(a).

                                     - 10 -
J-S64026-15


      In support of his weight of the evidence claim, Parker argues that the

trial court abused its discretion in finding him guilty of attempted robbery

because he “abandoned his criminal attempt and took further steps[,] which

prevented the commission thereof.”      Brief for Parker at 12.   Specifically,

Parker notes that “[a]fter the alleged criminal effort, he told the bank teller

that he had been joking and requested to cash a money order.”              Id.

(citations to the notes of testimony omitted).

      Renunciation is a defense to criminal attempt, which requires a

showing that the defendant avoided the commission of the crime attempted

by abandoning his criminal effort. Commonwealth v. Zingarelli, 839 A.2d

1064, 1072 (Pa. Super. 2003). Renunciation is defined as follows:

      (1) In any prosecution for an attempt to commit a crime, it is a
      defense that, under circumstances manifesting a voluntary and
      complete renunciation of his criminal intent, the defendant
      avoided the commission of the crime attempted by abandoning
      his criminal effort and if the mere abandonment was insufficient
      to accomplish such avoidance, by taking further and affirmative
      steps which prevented the commission thereof.

      (2) A renunciation is not “voluntary and complete” within the
      meaning of this subsection if it is motivated in whole or part by:

      (i) a belief that circumstances exist which increase the
      probability of detection or apprehension of the defendant or
      another participant in the criminal enterprise, or which render
      more difficult accomplishment of the criminal purpose; or

      (ii) a decision to postpone the criminal conduct until another
      time or to transfer the criminal effort to another victim or
      another but similar objective.

18 Pa.C.S. § 901(c).



                                    - 11 -
J-S64026-15



      After Parker demanded money from the bank teller, the bank teller

conveyed to Parker that he did not have access to any money. It is at this

point, Parker argues, that he withdrew from his criminal attempt and

proceeded to joke with the bank teller.       Brief for Parker at 12.   The bank

teller, however, maintained that Parker was not joking during this

interaction. In spite of these conflicting testimonies, Parker essentially asks

the Court to believe his account of this interaction with the bank teller.

Here, the jury found the bank teller’s testimony to be credible, and, as a

result, we may not reassess a witness’ credibility, as that determination lies

solely within the province of the fact-finder.        See Commonwealth v.

Manley, 985 A.2d 256, 262 (Pa. Super. 2009).

      Although some inconsistencies existed in the testimony produced at

trial, the jury was free to believe, or not to believe, all, none, or part of that

testimony.    The record supports the jury’s verdict, specifically the jury’s

finding of a lack of renunciation on behalf of Parker, and we discern no basis

upon which to conclude that the trial court abused its discretion by

concluding that the jury’s verdict failed to shock that court’s conscience.

      In his final issue, Parker claims that the trial court erred as a matter of

law by convicting him of both burglary and flight to avoid apprehension.

Brief for Parker at 13. Parker argues that he could not have been convicted

of flight to avoid apprehension, the underlying offense to his burglary

conviction. Id. Parker relies upon the principle espoused by this Court in

Commonwealth v. Benedetto, 462 A.2d 830, 832 (Pa. Super. 1983),

                                     - 12 -
J-S64026-15



wherein we held that a defendant may not be convicted both for burglary

and for the offense which it was his intent to commit after the entry, unless

the additional offense constitutes a felony of the first degree or second

degree. Brief for Parker at 13. To that end, Parker notes that flight to avoid

apprehension, 18 Pa.C.S. § 5126(a), is only a third-degree felony. Id.

      Parker’s reliance upon Benedetto, however, is misplaced.             Several

years after our decision in Benedetto, this Court clarified any potential

confusion   regarding   18   Pa.C.S.    §   3502(d),   which   prohibits   multiple

convictions of both burglary and the underlying offense to that burglary.

Commonwealth v. Couch, 731 A.2d 136, 144 (Pa. Super. 1999).                     In

Couch, we explained that the term “conviction” refers specifically to

sentencing of those crimes and not merely a judgment of guilt, as Parker

suggests. Id. Accordingly, Parker may be found guilty of both burglary and

flight to avoid apprehension. For these reasons, Parker’s claim fails.

      Even though we have determined that Parker is not afforded relief

upon his two substantive claims, we have detected a legal error in his

sentence.    Specifically, his convictions for burglary and flight to avoid

apprehension should have merged. Issues implicating merger constitutes a

nonwaivable challenge to the legality of the sentence, and a claim that we

may raise sua sponte. Commonwealth v. Robinson, 931 A.2d 15, 24 (Pa.

Super. 2007).

      As previously mentioned, Parker was convicted of both burglary and

the underlying offense to that burglary, flight to avoid apprehension. Parker

                                       - 13 -
J-S64026-15



was sentenced to five to ten year’s imprisonment on his burglary conviction

and six to twelve months’ imprisonment on his flight to avoid apprehension

conviction. Notes of Testimony (“N.T.”), 1/23/2015, at 10-11.

      Our Crimes Code precludes sentencing for both burglary and the

object crimes in the following circumstances:

      (d) Multiple convictions.—A person may not be sentenced
      both for burglary and for the offense which it was his intent to
      commit after the burglarious entry or for an attempt to commit
      that offense, unless the additional offense constitutes a felony of
      the first or second degree.

18 Pa.C.S. § 3502(d).        Accordingly, convictions for burglary and an

underlying offense that does not constitute a felony in the first or second

degree merge for sentencing purposes.          Commonwealth v. Brown, 466

A.2d 1071, 1073 (Pa. Super. 1983). Here, Parker was sentenced to six to

twelve   months’   imprisonment    for   his    conviction   of   flight   to   avoid

apprehension, a third-degree felony, which was set to run concurrently to his

sentence of five to ten years’ imprisonment on his burglary conviction.

Therefore, the trial court should have merged Parker’s conviction of flight to

avoid apprehension with his burglary conviction for sentencing purposes.

Consequently, Parker’s sentence regarding this conviction is illegal.

      For the reasons set forth above, although we do not disturb the

underlying conviction, we vacate the sentence imposed at docket number

2383-2013 for flight to avoid apprehension because it merges with burglary

for sentencing purposes.



                                    - 14 -
J-S64026-15



     Judgment    of   sentence   at    docket   number   2383-2013   vacated.

Judgment of sentence at docket number 5688-2013 affirmed.               Case

remanded. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/14/2015




                                      - 15 -
