J-S20018-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT
                                                          OF PENNSYLVANIA
                             Appellee

                        v.

    GREGORIO CHAMBERS

                             Appellant                    No. 1187 EDA 2019


              Appeal from the PCRA Order entered March 20, 2019
              In the Court of Common Pleas of Philadelphia County
                Criminal Division at No: CP-51-CR-0006668-2015


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

MEMORANDUM BY STABILE, J.:                                 FILED JULY 29, 2020

        Appellant, Gregorio Chambers, pro se appeals from the March 20, 2019

order entered in the Court of Common Pleas of Philadelphia County denying

his petition for collateral relief filed pursuant to the Post Conviction Relief Act

(“PCRA”), 42 Pa.C.S.A. §§ 9541-46. Upon review, we affirm.

        The factual and procedural background is not at issue here. Briefly, on

January 10, 2017, Appellant, along with another individual, robbed a

pedestrian at gunpoint. Appellant entered an open plea to robbery, conspiracy

to commit robbery, firearms not to be carried without a license, and carrying

a firearm in public in Philadelphia.1          On March 20, 2017, the trial court

sentenced him to consecutive terms of four to ten years on the robbery

conviction and three to six years on the conspiracy for an aggregate term of

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1   18 Pa.C.S.A. §§ 3701(a)(1)(ii), 903, 6106, and 6108, respectively.
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imprisonment of seven to sixteen years. No further penalties were imposed

on the firearm violations. Appellant did not file a direct appeal with our Court.

      On March 21, 2018, Appellant filed the instant PCRA petition, in which

Appellant argued that the sentencing court erred in not merging the sentences

for the robbery and conspiracy convictions. After the PCRA court appointed

counsel, on May 12, 2018, counsel filed a “no merit” letter arguing that the

merger claim raised by Appellant had no merit.

      On February 6, 2019, the PCRA court issued a notice of its intention to

dismiss the PCRA petition. Appellant filed a response to counsel’s no merit

letter and the PCRA court’s notice. After reviewing and considering Appellant’s

responses, the PCRA court denied PCRA relief on March 20, 2019. On July 30,

2019, the PCRA court granted counsel’s petition to withdraw.

      Our standard of review from a PCRA court’s determination is well settled.

“[A]n appellate court reviews the PCRA court’s findings of fact to determine

whether they are supported by the record, and reviews its conclusions of law

to determine whether they are free from legal error.” Commonwealth v.

Spotz, 84 A.3d 294, 311 (Pa. 2014) (citation omitted).

      As noted, Appellant argues that the sentencing court erred in not

merging for sentencing purposes his robbery and conspiracy to commit

robbery sentences. We disagree.

      The Pennsylvania Judicial Code governs our merger analysis:

      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

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       offense. Where crimes merge for sentencing purposes, the court
       may sentence the defendant only on the higher graded offense.

42 Pa.C.S.A. § 9765.           Merger implicates the legality of a sentence.

Commonwealth v. Tanner, 61 A.3d 1043, 1046 (Pa. Super. 2013).

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

plenary. Commonwealth v. Calhoun, 52 A.3d 281, 284 (Pa. Super. 2012),

appeal denied, 67 A.3d 793 (Pa. 2013).              Section 9765 “prohibits merger

unless two distinct facts are present: 1) the crimes arise from a single criminal

act; and 2) all of the statutory elements of one of the offenses are included in

the statutory elements of the other.”            Tanner, 61 A.3d at 1046 (quoting

Commonwealth v. Baldwin, 985 A.2d 830, 833 (Pa. 2009)).

       It is undisputed that Appellant’s convictions for robbery and conspiracy

arise from the single criminal act of the gunpoint robbery of a pedestrian.

Accordingly, the first requirement for merger is met.

       However, robbery2 and conspiracy3 do not have any statutory element

in common.        Thus, they do not merge for sentencing purposes.            See



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2 To sustain a conviction for robbery under Section 3701(a)(1)(ii), the
Commonwealth must establish that “in the course of committing a theft,” the
defendant “threatens another with or intentionally puts him in fear of
immediate serious bodily injury.” 18 Pa.C.S.A. § 3701(a)(1)(ii).

3 “To sustain a conviction for criminal conspiracy, the Commonwealth must
establish that the defendant (1) entered into an agreement to commit or aid
in an unlawful act with another person or persons, (2) with a shared criminal
intent and (3) an overt act was done in furtherance of the conspiracy.”
Commonwealth v. Hennigan, 753 A.2d 245, 253 (Pa. Super. 2000).

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Commonwealth v. Andrews, 720 A.2d 764, 769 (Pa. Super. 1988)

(conspiracy does not merge for sentencing purposes with either robbery or

possession of an instrument of crime). Additionally, “[i]t has long been the

law of this Commonwealth that the crime of criminal conspiracy does not

merge with the completed offense which was the object of the conspiracy.”

Commonwealth v. Miller, 364 A.2d 886, 886 (Pa. 1976).

     In light of the foregoing, we conclude that the PCRA court did not err in

dismissing Appellant’s PCRA petition.

     Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/29/2020




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