J-S43038-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    FRANCIS A. STRAUGHTERS, JR.                :
                                               :
                       Appellant               :   No. 199 WDA 2018

             Appeal from the Judgment of Sentence January 8, 2018
      In the Court of Common Pleas of Fayette County Criminal Division at
                        No(s): CP-26-CR-0000423-2012


BEFORE: STABILE, J., DUBOW, J., and NICHOLS, J.

MEMORANDUM BY NICHOLS, J.:                             FILED AUGUST 16, 2018

       Appellant Francis A. Straughters, Jr. appeals from the amended

judgment of sentence imposed following his convictions for robbery,

conspiracy, aggravated assault, simple assault, reckless endangerment,

terroristic threats, theft by unlawful taking, receiving stolen property, and

disorderly conduct.1 Appellant’s counsel (Counsel) has filed a brief pursuant

to Anders v. California, 386 U.S. 738 (1967), and its Pennsylvania

counterpart, Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). We

affirm and grant Counsel’s petition to withdraw.

       We set forth the facts of this case as follows:

       During the night of February 3, 2012, Appellant and [co-
       conspirator Edith Marie] Porterfield smoked crack cocaine at their
       apartment on East Green Street, Connellsville. Their drug dealer
____________________________________________


1 18 Pa.C.S. §§ 3701(a)(1)(i), 903, 2702(a)(4), 2701, 2705, 2706, 3921,
3925, and 5503, respectively.
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     had refused to give them any more drugs on credit so, after
     consuming all the crack cocaine in their possession, they decided
     to obtain money by criminal means in order to purchase the drug.
     First, the two cohorts went to the home of Porterfield’s mother,
     stole about $150, purchased more crack cocaine, and returned to
     their apartment to consume it.

     Appellant and Porterfield then decided to rob a store to obtain
     more funds. To that end, they started to drive around Connellsville
     consuming their remaining crack cocaine. At around 4:00 a.m.
     on February 4, 2012, they went to a gas station known as the
     Honey Bear Sunoco, which was located on Memorial Boulevard in
     Connellsville. Porterfield entered that business wearing sunglasses
     and a white-hooded sweatshirt. She tried to open the cash
     register and demanded money from the store clerk, who denied
     her access to the register. In response, Porterfield threatened to
     shoot the clerk and left the gas station.

     After that unsuccessful attempt to gain money for drugs, at
     around 6:00 a.m. on February 4, 2012, Appellant and Porterfield
     robbed the Reddy Mart Gas Station (“Reddy Mart”), which also
     was located on Memorial Boulevard, Connellsville. Porterfield
     operated as a lookout and the getaway driver. She entered the
     establishment, purchased coffee, and left the Reddy Mart. During
     her stay, she spoke briefly with a regular customer, Zane Long.
     Nancy Miller was the only store employee on duty.

     Shortly after Porterfield left Reddy Mart, Appellant entered the
     convenience store carrying a long-handled crescent wrench. He
     screamed at Mr. Long that he was robbing the store, struck Mr.
     Long across the face with the wrench, and pushed him into a utility
     closet. Appellant then approached Ms. Miller and ordered her to
     give him the store money and not to summon the police. He stole
     about $500 in cash and several packs of cigarettes from the Reddy
     Mart. Next, Appellant returned to the utility closet and struck Mr.
     Long on the head with the wrench two or three more times. Mr.
     Long fell onto the ground, where Appellant, who was wearing
     boots, kicked him three times, including once in the head. Due to
     his injuries, Mr. Long received nine stiches and seventeen staples
     at a hospital. Porterfield and Appellant then purchased more crack
     cocaine with the robbery proceeds.

     During the ensuing investigation, Connellsville Police Officer
     Autumn Fike reviewed Reddy Mart’s surveillance footage of the
     incident, which was played for the jury. When watching the tape,


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        Officer Fike immediately recognized both Porterfield and
        Appellant. Porterfield had no facial covering, and a piece of cloth
        that Appellant used during the crime to cover his mouth and chin
        continually slid down so that Officer Fike was able to view
        Appellant’s entire visage. Officer Fike obtained a search warrant
        for Appellant’s residence, and, during its execution, she found
        clothing worn by the perpetrator of the Reddy Mart robbery,
        including a bloodstained shirt. The shirt was submitted to a crime
        laboratory for DNA testing. Appellant’s DNA was on that item, and
        the blood on the shirt belonged to Mr. Long.

        As Officer Fike was executing the warrant, she saw Appellant
        outside. She exited the residence to arrest Appellant, but he
        entered his vehicle and fled the area with Porterfield. After being
        pursued by a nearby patrol car, Appellant and Porterfield
        surrendered to police.

        Based upon these events, Appellant was convicted of robbery,
        aggravated assault, simple assault, reckless endangerment,
        terroristic threats, conspiracy, theft by unlawful taking, theft by
        receiving stolen property, and disorderly conduct.         He was
        acquitted of two counts of criminal conspiracy that were based
        upon the attempted robbery of Honey Bear Sunoco.

See Commonwealth v. Straughters, 1028 WDA 2015, 1-3 (Pa. Super. filed

Jan. 5, 2016) (unpublished mem.), appeal denied, 138 A.3d 4 (Pa. 2016).

        On September 4, 2012, the trial court sentenced Appellant to 5 to 10

years’ incarceration for the robbery conviction and a consecutive 2½ to 5

years’ incarceration for the aggravated assault conviction.2      The aggregate

sentence was 7½ to 15 years’ incarceration, to run consecutive to Appellant’s

prior sentence case in CP-26-CR-1771-20113 (Case No. 1771). The trial court

____________________________________________


2   The trial court imposed no further punishment for the remaining convictions.

3 On July 11, 2012, at Case No. 1771, Appellant pled guilty to aggravated
assault, simple assault, and harassment. The trial court sentenced Appellant



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further stated that Appellant was not eligible for the Recidivism Risk Reduction

Incentive (RRRI) program due to his aggravated assault conviction at Case

No. 1771.     On May 29, 2013, this Court affirmed Appellant’s judgment of

sentence.     Appellant filed a petition for allowance of appeal, which the

Pennsylvania Supreme Court denied on December 18, 2013.

       On July 31, 2014, the PCRA court docketed Appellant’s first PCRA

petition.   The PCRA court appointed Counsel who filed an amended PCRA

petition on November 25, 2014. Following a hearing, the PCRA court denied

Appellant’s petition on June 5, 2015. This Court affirmed on January 5, 2016,

and the Pennsylvania Supreme Court denied Appellant’s petition for allowance

of appeal on May 10, 2016.

       On December 4, 2017, the trial court docketed Appellant’s pro se

petition to recalculate guidelines and correct sentence.       In his petition,

Appellant alleged that on August 30, 2017, the Commonwealth nolle prossed

the charges at Case No. 1771 after Appellant filed a PCRA petition in that case.

Mot. to Recalculate Guidelines and Correct Sentence, 12/4/17, at 3.          He

further alleged that his PCRA Counsel in Case No. 1771 failed to inform him

of the dismissal of the charges. Id. Appellant claimed that this affected the


____________________________________________


to 22 to 60 months’ incarceration on the aggravated assault conviction and
imposed no further penalty on the remaining convictions. On August 30,
2017, the trial court vacated Appellant’s sentence at Case No. 1771 after
Appellant filed a Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546,
petition in that case.



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offense gravity score and prior record score used when calculating his

sentence in the instant case and in determining he was not RRRI eligible. Id.4

        On December 13, 2017, the trial court scheduled a re-sentencing

hearing.5 On January 8, 2018, following the resentencing hearing, the trial

court amended Count 1—Robbery of Appellant’s sentence, providing in

relevant part:

        Paragraph 6 is amended as follows: The [c]ourt has determined
        that the Defendant is NOT eligible for the RRRI Program due to
        the Possession of Firearms conviction at Fayette County Case
        Number 596 of 2005.

        Paragraph 7 shall read: The Defendant is given credit for time
        served from February 4, 2012 to September 4, 2012.

        Paragraph 8 is RESCINDED as the Aggravated Assault conviction
        as Case No. 1771 . . . has been vacated.

Am. Sentence, 1/8/18, at Ct. 1 (reordered).6
____________________________________________


4Although Appellant alleged that he exercised due diligence in discovering
new facts, the trial court apparently granted re-sentencing relief to correct a
patent error based on the developments in Case No. 1771.

5  We note that while the trial court labeled the hearing as one for re-
sentencing, it limited itself to correcting potential errors regarding the
calculation of Appellant’s PRS and eligibility for the RRRI program. Thus,
Appellant could only raise issues as to the calculation of his PRS and his
eligibility for the RRRI program. We will address, however, the issues raised
by Appellant in his pro se response to Counsel’s Anders/Santiago brief.

6   Count 1–Robbery of the original sentence read in relevant part as follows:

        6. The [c]ourt has determined that the Defendant is NOT eligible
        for the RRRI Program due to his Aggravated Assault conviction at
        [Case No. 1771];



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       The trial court also amended Count 3–Aggravated Assault and provided

in relevant part:

       Paragraph 3 has previously been omitted per order of September
       14, 2012.

       Paragraph 6 is RESCINDED as the Aggravated Assault Conviction
       at Case No. 1771 . . . has been vacated.

Id. at Ct. 3.7

       Appellant filed a timely notice of appeal and complied with a court-

ordered Pa.R.A.P. 1925(b) statement.               The trial court filed a responsive

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

Anders/Santiago brief and Appellant has filed a pro se response. We address

Counsel’s Anders/Santiago brief first.

       Counsel’s Anders/Santiago brief identifies the following issues on

appeal:

____________________________________________


       7. Defendant us given credit for time served from February 4,
       2012 to August 17, 2012;

       8. This sentence shall run consecutive to [Case No. 1771].

Sentence, 9/4/12, at Ct.1.

7Count 3–Aggravated Assault of the original sentence provided in relevant
part as follows:

       3. Make restitution in the amount of $400.00 to Reddy’s Sunoco
       A Plus;

                                          ***

       6. This sentence shall run consecutive to [Case No. 1771].

Sentence, 9/4/12, at Ct.3.

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      1. Whether the court erred by failing to recalculate [Appellant]’s
         sentence after [Appellant]’s sentence in Case No. 1771 of 2011
         was vacated[.]

      2. Whether the court erred in determining that [Appellant] was
         not eligible for the RRRI program[.]

Anders/Santiago Brief at 2 (full capitalization omitted).

      Because Counsel has filed a petition to withdraw pursuant to

Anders/Santiago, we must first address Counsel’s petition before reviewing

the merits of the appeal. Commonwealth v. Goodwin, 928 A.2d 287, 290

(Pa. Super. 2007) (en banc). To be permitted to withdraw, Counsel must:

         1) petition the court for leave to withdraw stating that, after
         making a conscientious examination of the record, counsel
         has determined that the appeal would be frivolous; 2)
         furnish a copy of the brief to the defendant; and 3) advise
         the defendant that he or she has the right to retain private
         counsel or raise additional arguments that the defendant
         deems worthy of the court’s attention.

Commonwealth v. Cartrette, 83 A.3d 1030, 1032 (Pa. Super. 2013) (en

banc) (citation omitted).

      Here, Counsel has stated that after a thorough review of the record, he

believes this appeal would be wholly frivolous. Pet. to Withdraw, 5/4/18, at ¶

14. Counsel furnished a copy of the Anders/Santiago brief to Appellant, as

well as a letter advising Appellant of his right to “(1) retain new counsel to

pursue the appeal; (2) proceed pro se on appeal [meaning without legal

counsel]; or (3) raise any points that the appellant deems worthy of the court’s

attention in addition to the points raised by counsel.”       Ltr. to Appellant,




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4/16/18. We conclude that Counsel’s petition to withdraw complies with the

procedural dictates of Anders.

      We next address whether Counsel’s brief meets the requirements

established by the Pennsylvania Supreme Court in Santiago. The brief must:

         (1) provide a summary of the procedural history and facts,
         with citations to the record; (2) refer to anything in the
         record that counsel believes arguably supports the appeal;
         (3) set forth counsel’s conclusion that the appeal is
         frivolous; and (4) state counsel’s reasons for concluding that
         the appeal is frivolous. Counsel should articulate the
         relevant facts of record, controlling case law, and/or
         statutes on point that have led to the conclusion that the
         appeal is frivolous.

Santiago, 978 A.2d at 361.

      Here, Counsel’s brief provided a summary of the procedural history and

the relevant facts with appropriate citations to the record. Anders/Santiago

Brief at 3-4. Counsel’s brief states that he conducted a thorough review of

the record and determined that any appeal would be frivolous, and set forth

his reasons for that conclusion. Id. at 5-11, 28. Accordingly, Counsel has

substantially complied with the requirements of Anders and Santiago. We

therefore review the issues raised in the Anders/Santiago brief.

      Counsel first identifies Appellant’s claim that the trial court erred by

failing to correct Appellant’s prior record score (PRS) in the instant case after

the sentence at Case No. 1771 had been vacated. Anders/Santiago Brief at

5.

      As a prefatory matter, “we note that objections to the discretionary

aspects of a sentence are waived if they are not raised at the sentencing

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hearing or raised in a motion to modify the sentence imposed at that hearing.”

Commonwealth v. Anderson, 830 A.2d 1013, 1016 (Pa. Super. 2003)

(citations omitted).

      Here, Appellant did not preserve his discretionary sentencing claim at

the resentencing hearing or in a subsequent post-sentence motion.

Accordingly, Appellant has failed to preserve this claim. See id.

      Next, Counsel sets forth Appellant’s claims that the trial court erred in

determining that Appellant was not eligible for the RRRI program.

      It is well-settled that “where the trial court fails to make a statutorily

required determination regarding a defendant’s eligibility for a[] RRRI

minimum sentence as required, the sentence is illegal.” Commonwealth v.

Robinson, 7 A.3d 868, 871 (Pa. Super. 2010). Accordingly, because RRRI

eligibility “concerns a matter of statutory interpretation and is, thus, a pure

question of law, our standard of review is de novo and our scope of review is

plenary.” Commonwealth v. Chester, 101 A.3d 56, 60 (Pa. 2014) (citation

omitted).

      Our Supreme Court has explained that RRRI “seeks to create a program

that ensures appropriate punishment for persons who commit crimes,

encourages inmate participation in evidence-based programs that reduce the

risks of future crime and ensures the openness and accountability of the

criminal justice process while ensuring fairness to crime victims.” Id. at 57

(citing 61 Pa.C.S. § 4502). This program, however, requires the defendant to




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meet several requirements. See 61 Pa.C.S. § 4503; see also Chester, 101

A.3d at 57-58. Of relevance here is one requirement that the defendant:

      [h]as not been subject to a sentence the calculation of which
      includes an enhancement for the use of a deadly weapon as
      defined under law or the sentencing guidelines promulgated by
      the Pennsylvania Commission on Sentencing or the attorney for
      the Commonwealth has not demonstrated that the defendant
      has been found guilty of or was convicted of an offense
      involving a deadly weapon or offense under 18 Pa.C.S. Ch.
      61 (relating to firearms and other dangerous articles) or the
      equivalent offense under the laws of the United States or one of
      its territories or possessions, another state, the District of
      Columbia, the Commonwealth of Puerto Rico or a foreign nation.

61 Pa.C.S. § 4503 (emphasis added).

      In the instant case, Appellant had a 2005 conviction for possession of a

firearm with an altered manufacturer’s number, 18 Pa.C.S. § 6110.2(a). See

N.T., 1/8/18, at 8. Further, the trial court fully explained to Appellant why he

was not eligible for RRRI at the resentencing hearing. See id. at 9-10. Thus,

because Appellant’s 2005 conviction involving a firearm is an enumerated

offense under chapter 61 of the Crimes Code, the trial court correctly held

that Appellant does not qualify as an eligible offender. See 61 Pa.C.S. § 4503.

      Next, we address the two additional issues Appellant has raised in his

pro se response. First, Appellant challenges the discretionary aspects of his

sentence. More specifically, he claims that (1) the trial court imposed a harsh

sentence because it ordered that the sentences be consecutive; (2) the

sentence is excessive because the prior criminal case was vacated; and (3)




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the trial court did not state sufficient reasons on the record. Appellant’s Reply

Brief to Counsel’s Pet. to Withdraw, 6/12/18, at ¶¶ 2-4.

        As discussed above, Appellant did not file a post-sentence motion or

preserve any discretionary sentencing claims at the re-sentencing hearing.

Accordingly, Appellant has waived these claims. See Anderson, 830 A.2d at

1016.

        Second, Appellant claims that “there may be an issue of merger to the

two offenses, where ‘inchoate crimes merge only when directed to the

commission of the same crime, not merely because they arise out of the same

incident.’”8 Appellant’s Reply Brief to Counsel’s Pet. to Withdraw, 6/12/18, at

¶ 3 (citing Commonwealth v. Graves, 508 A.2d 1198 (Pa. 1986) (per

curiam)).

        Initially, we note that whether convictions merge for sentencing

purposes involves the legality of a sentence. Commonwealth v. Baldwin,

985 A.2d 830, 833 (Pa. 2009). Thus, our standard of review is de novo and

our scope of review is plenary. Id. (citation omitted).

        Section 9765 provides that:

        [n]o 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 sentence the defendant only on the higher graded offense.

____________________________________________


8 Although Appellant does not specify the two offenses at issue, it is clear he
is referring to robbery and aggravated assault, as these were the only
convictions for which the trial court sentenced Appellant.

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42 Pa.C.S. § 9765.

      Regarding robbery and aggravated assault, we have explained that

      it is clear that aggravated assault under § 2702(a)(1) requires an
      element that § 3701(a)(1)(i) robbery does not: namely, that the
      perpetrator act with a specific mental state when causing the
      “serious bodily injury.” As § 2702(a)(1) declares, before an
      individual may be convicted of aggravated assault, that individual
      must “cause . . . serious bodily injury to another . . . intentionally,
      knowingly or recklessly under circumstances manifesting extreme
      indifference to the value of human life.” 18 Pa.C.S. § 2702(a)(1).
      18 Pa.C.S. § 3701(a)(1)(i) simply does not require such a mental
      state when the “serious bodily injury” is inflicted. For robbery, it
      is enough that the perpetrator “inflicts serious bodily injury upon
      another” while “in the course of committing a theft.” 18 Pa.C.S.
      § 3701(a)(1)(i) (emphasis added).

Commonwealth v. Payne, 868 A.2d 1257, 1263 (Pa. Super. 2005)

(emphasis omitted).

      Although Payne discusses aggravated assault as defined in section

2702(a)(1) and, here, Appellant was convicted of aggravated assault under

section 2702(a)(4), the underlying reasoning is the same. Section 2702(a)(4)

requires a defendant to intend to cause or knowingly cause bodily injury with

a deadly weapon, while section 3701(a)(1)(i) requires the infliction of serious

bodily injury in the course of committing the theft.         See 18 Pa.C.S. §§

2702(a)(4), 3701(a)(1)(i).     Therefore, because aggravated assault under

subsection (a)(4) and robbery under subsection(a)(1) each have at least one

element that other does not, these convictions do not merge for sentencing

purposes. See Payne, 868 A.2d at 1263.




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      Finally, our independent review of the record does not reveal any other

non-frivolous issues.

     Petition to withdraw granted. Judgment of sentence affirmed.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/16/2018




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