J-S36010-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                       IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                            Appellee

                       v.

CHRISTIAN BAER,

                            Appellant                   No. 1206 WDA 2014


             Appeal from the Judgment of Sentence June 25, 2014
              In the Court of Common Pleas of Allegheny County
              Criminal Division at No(s): CP-02-CR-0016213-2013


BEFORE: PANELLA, J., JENKINS, J., and STRASSBURGER, J.*

DISSENTING MEMORANDUM BY JENKINS, J.: FILED SEPTEMBER 14, 2015

        I respectfully dissent from the majority’s decision to reverse Christian

Baer’s judgment of sentence.

        The majority construes the record to state that the trial court found

Baer guilty of robbery under 18 Pa.C.S. § 3701(a)(1)(i) (“subsection 1”) and

sentenced him to 3-10 years’ imprisonment plus 10 years’ consecutive

probation under subsection 1.            The majority further concludes that the

evidence was insufficient to sustain Baer’s conviction under this subsection.

        In my view, the record demonstrates that the trial court convicted and

sentenced Baer guilty of robbery solely under 18 Pa.C.S. § 3701(a)(1)(ii)

(“subsection 2”). This point becomes inescapable upon examination of the
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.


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notes of testimony, the court’s comments at sentencing and the content of a

Sentencing Guideline form that the court completed during sentencing. The

references to subsection 1 in the order of sentence and commitment form

are mere clerical errors that the trial court should have the opportunity to

correct.

       Subsection 1 provides that a person is guilty of robbery if he “inflicts

serious bodily injury upon another” in the course of committing a theft.

Subsection 2 provides that a person is guilty of robbery if he “threatens

another with or intentionally puts him in fear of immediate serious bodily

injury” in the course of committing a theft.

       Page 2 of the information against Baer defines Count I as follows:

       The District Attorney of Allegheny County, by this information
       charges that … [Baer] did commit the crime or crimes indicated
       herein, that is:

       Count I       ROBBERY-SERIOUS BODILY INJURY            Felony I

       [Baer] in the course of committing a theft, either inflicted serious
       bodily injury upon Sean Lynn, threatened that person or persons
       with, or put that person in fear of immediate serious bodily
       injury, in violation of Section 3701(a)(1)(i) or (ii) of the
       Pennsylvania Crimes Code, Act of December 6, 1972, 18 Pa.C.S.
       § 3701(a)(1)(i) or (ii).

Information at 2 [emphasis added]. This text clearly establishes that Baer

was charged with robbery under both subsections 1 and 2.1, 2
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1
  On another page, the information states that Count I only charges Baer
under subsection 1. Information, p. 1 (referring to Count I as “183701A1I:
Robbery – serious bodily injury”). Nevertheless, the citation to subsection 2
(Footnote Continued Next Page)


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      Following trial, the court inscribed its verdict, “guilty on count I”, on

page 1 of the information beneath the reference to subsection 1 (“Count I:

183701A1I: Robbery – serious bodily injury”). From this placement of the

verdict, the majority infers that the trial court only found Baer guilty under

subsection 1. I view this detail differently. Since page 2 of the information

states that Count I includes subsections 1 and 2, “guilty on count I” could

have multiple meanings; it could mean that the court found Baer guilty

under subsection 1, or subsection 2, or both subsections. Standing alone,

the verdict is ambiguous.

      The sentencing proceedings clear up this ambiguity by showing that

the court found Baer guilty and sentenced Baer under subsection 2.          The

court stated that a “standard range sentence” was appropriate, and that the

standard range under the Sentencing Guidelines for Baer’s offense was 36-

48 months’ imprisonment.            N.T., 6/25/14, at 5-6.   The court thereupon

sentenced Baer to 3-10 years’ imprisonment plus ten years’ consecutive

probation.   Id. at 6.       Attached to the sentencing order was a Sentencing

Guideline form which explicitly stated that Baer’s sentence was for a


                       _______________________
(Footnote Continued)

on page 2 of the information makes clear that Count I charged Baer under
both subsections 1 and 2.
2
  Count II of the information charged Baer with criminal mischief. The trial
court subsequently found Baer not guilty on this count.




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violation of subsection 2, that his offense gravity score (“OGS”) was 10, and

that his prior record score (“PRS”) was 2.

       The Sentencing Guideline form’s reference to subsection 2 and its

description of the offense as “Robbery – threatens s.b.i.” is unmistakable

evidence that the court sentenced Baer under subsection 2.3               The court’s

approval of a “standard range” sentence of 36-48 months compels the same

conclusion. The Guidelines do not provide a standard range sentence of 36-

48 months’ imprisonment for a violation of subsection 1.               The OGS for a

violation of subsection 1 is 12, see 204 Pa. Code § 303.15, but there are no

standard range sentences of 36-48 months’ imprisonment for offenses with

an OGS of 12. See 204 Pa. Code § 303.16(a) (basic sentencing matrix). On

the other hand, a standard range sentence of 36-48 months is possible for a

violation of subsection 2. The OGS for a violation of subsection 2 is 10. See

204 Pa. Code § 303.15. When, as here, the defendant has an OGS of 10

and   a   PRS    of   2,   the   standard      range   sentence   is   36-48   months’

imprisonment. See 204 Pa. Code § 303.16(a). Consequently, the decision

to impose a “standard range” sentence of 36-48 months’ imprisonment



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3
  The majority notes that “the [S]entencing [G]uideline form is not an order
of the court and carries no dispositive authority.” Majority Memorandum, at
7 n. 3. While I agree that this form is not an order of court, it still is record
evidence that the trial court imposed sentence under subsection 2.




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illustrates that the court found Baer guilty, and sentenced him, only under

subsection 2.

        The evidence adduced during trial provides ample justification for the

court’s decision to convict Baer under subsection 2.         The victim, Shawn

Daniel Lynn, biked over to Charlene Marish’s apartment after Marish sent

Lynn a text message stating that she had a bad argument with her live-in

boyfriend, Baer. Shortly after Lynn’s arrival, Baer and several other persons

entered the apartment, and Baer accused Lynn of visiting Marish for the sole

purpose of having sex with her.        Baer removed a sword from the wall,

pointed it at Lynn from 6-8 feet away, and told Lynn that he would have to

leave the apartment naked or Baer would beat him up. Lynn stripped off his

clothing and left the apartment, leaving behind his bicycle and a backpack

containing clothing and a scrapbook.        Baer took Lynn’s cellphone from his

hooded sweatshirt and broke it in half. N.T., 4/14/14, at 8-14.

        I agree with the majority that this evidence was insufficient to convict

Baer under subsection 1, because Baer did not inflict serious bodily injury on

Lynn.       But   under   subsection   2,   the   evidence   against   Baer   was

overwhelming: in the course of committing a theft, and while brandishing a

sword, Baer verbally threatened to beat Lynn up and intentionally put Lynn

in fear of immediate serious bodily injury. Commonwealth v. Mills, 480

A.2d 1192, 1195 (Pa.Super.1984) (for purposes of subsection 2, evidence

that defendant made several thrusts with his knife toward victim while


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threatening that he would like to stab victim was sufficient to prove that

defendant threatened victim or put him in fear of immediate serious bodily

injury).

      Because the record supports Baer’s conviction and sentence under

subsection 2, the references to subsection 1 in the sentencing order and

commitment form are mere clerical errors. The trial court has the inherent

authority to correct clear clerical errors or patent and obvious mistakes in a

sentencing order, even if more than thirty days have passed since entry of

the   order.   Commonwealth        v.    Ellsworth,   97   A.3d   1255,   1257

(Pa.Super.2014). I respectfully submit that the proper remedy in this case

is to affirm Baer’s conviction and to remand to the trial court for correction

of the order of sentence and commitment form to state that his sentence is

under subsection 2.

      Accordingly, I respectfully dissent.




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