J-S06036-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA :                 IN THE SUPERIOR COURT OF
                              :                       PENNSYLVANIA
                              :
          v.                  :
                              :
                              :
 MARQUIS CARTER,              :
                              :
               Appellant      :                     No. 1332 EDA 2016
                              :

             Appeal from the Judgment of Sentence April 8, 2016
            in the Court of Common Pleas of Philadelphia County,
            Criminal Division at No(s): CP-51-CR-0003726-2015

BEFORE: BOWES, J., McLAUGHLIN, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.:                                FILED MAY 01, 2018

      Marquis Carter (“Carter”) appeals from the judgment of sentence

imposed following his convictions of robbery, theft by unlawful taking,

receiving   stolen   property,   and   simple   assault.     See   18   Pa.C.S.A.

§§ 3701(a)(1)(iv); 3921(a); 3925(a); 2701(a). We affirm in part and vacate

in part.

      The trial court set forth the relevant underlying facts as follows:

      On March 14, 2015, [Vivika Williams (“Williams”)] arrived at
      [Carter’s] house to pick up their daughter as per their custody
      arrangement. When [Williams] arrived at [Carter’s] home, she
      and [Carter] began to argue about the way their daughter was
      being dressed to go to day[]care while she was in [Williams’s]
      care. As the argument escalated, [Carter] punched [Williams] in
      the right cheek area[,] causing [Williams] to fall. [Williams] fell
      to the floor and as she attempted to leave, [Carter] kicked her on
      the side of her body. During this altercation, [Williams] lost her
      new cell phone, which was worth about four hundred dollars
      ($400). … [Carter] [also] repeatedly punched her in the head
      about fifteen (15) times after she fell to the ground. … [Carter]
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      grabbed the phone from the floor and jumped into [Williams’s] car
      and parked it. [Thereafter, Carter got out of the car and continued
      to argue with Williams.] The police arrived shortly thereafter and
      [Williams] told the officers that she had been assaulted and
      wanted a Protection From Abuse (“PFA”) order issued.

      ... Officer[] Timothy Auty (Badge #7177) arrived on the scene.
      Officers were unable to help [Williams] retrieve her cell phone, but
      did meet with her at the end of the street, away from [Carter’s]
      home to discuss what had happened with [Carter]. There, the
      officer was able to give [Williams] a report number in order to file
      for a PFA order. At that time[,] Officer Auty did not notice any
      visible injuries. Then, on March 17, 2015, [Williams] went to the
      police district to petition for a PFA. She was interviewed by Officer
      [John] Burns (Badge #7630)[,] who took a detailed report citing
      that [Williams] suffered injuries from punching, kicking, grabbing,
      pulling hair, and threats. At that time, Officer Burns noted her
      visible injuries as bruises on her face, swollen/cut bottom lip, as
      well as pain to her neck, body, and legs.

Trial Court Opinion, 5/2/17, at 3-4 (citations omitted).

      Carter was arrested and charged with robbery, theft by unlawful taking,

receiving stolen property, simple assault, and recklessly endangering another

person. Prior to trial, the Commonwealth filed a Motion to admit prior bad

acts regarding an incident between Carter and Williams, which had occurred

one week prior to the events of the instant action, to demonstrate Carter’s

intent. In that incident, Carter, upset over the possibility that Williams was

dating another person, came to her house and punched her in the back,

causing two cracked ribs. As a result of the incident, Williams sought medical

care and received pain medication for her injuries. The trial court granted the

Motion and admitted the evidence.




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       Carter proceeded to a bench trial, after which he was found guilty of

robbery, theft by unlawful taking, receiving stolen property, and simple

assault, and acquitted of recklessly endangering another person. The trial

court imposed an aggregate sentence of 16 to 32 months in prison, followed

by 7 years, 8 months of probation.1

       Carter filed a Notice of Appeal and a court-ordered Pennsylvania Rule of

Appellate Procedure 1925(b) Concise Statement.

       On appeal, Carter raises the following questions for our review:

       1. Did not the [trial] court err in granting the Commonwealth’s
          [M]otion pursuant to [Pa.R.E.] 404(b) seeking to admit prior
          bad acts of [Carter] inasmuch as the evidence (evidence of a
          prior assault) was not relevant to prove motive, opportunity,
          intent, preparation, plan, knowledge, identity or absence or
          mistake or accident, was essentially inadmissible propensity
          evidence and its prejudicial value far outweighed its probative
          value?

       2. Was not the evidence insufficient to support the convictions for
          robbery, theft, and receiving stolen property inasmuch as there
          was no evidence that [Carter] took anything of value from
          [Williams] “in the course of the theft” by the force required to
          prove robbery, or that [Carter] actually took anything of value
          from [Williams], even without any force applied?

Brief for Appellant at 4.




____________________________________________


1 The trial court imposed a sentence of 16 to 32 months in prison, followed by
7 years, 8 months of probation for the robbery conviction, and concurrent
terms of 5 years’ probation for the theft by unlawful taking conviction, 5 years’
probation for the receiving stolen property conviction, and 2 years’ probation
for the simple assault conviction.

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      In his first claim, Carter contends that the trial court erred in allowing

the admission of his prior bad acts because such evidence was irrelevant and

prejudicial.   Id. at 11, 15-16.        Carter argues that contrary to the

Commonwealth’s reasoning that the evidence was admissible to establish his

motive and intent for the assault and theft, the actual reason was to bolster

Williams’s testimony. Id. at 11-12. Carter claims that the evidence did not

demonstrate motive or intent on Carter’s part, because Williams’s failure to

call the police after the first incident had nothing to do with Carter taking her

phone in the second incident to prevent a call to the police. Id. at 14-15.

Carter also asserts that the evidence was introduced to establish that he has

bad character and a propensity for violence. Id. at 14.

      Our standard of review concerning a challenge to the admissibility of

evidence is as follows:

      The admissibility of evidence is a matter for the discretion of the
      trial court and a ruling thereon will be reversed on appeal only
      upon a showing that the trial court committed an abuse of
      discretion. An abuse of discretion may not be found merely
      because an appellate court might have reached a different
      conclusion, but requires a result of manifest unreasonableness, or
      partiality, prejudice, bias, or ill-will, or such lack of support so as
      to be clearly erroneous.

Commonwealth v. Johnson, 42 A.3d 1017, 1027 (Pa. 2012) (citations and

quotation marks omitted).

      Evidence of other crimes, wrongs, or other acts is inadmissible solely to

“prove a person’s character in order to show that on a particular occasion the

person acted in accordance with the character.” Pa.R.E. 404(b)(1).

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      However, evidence of prior bad acts is admissible where there is
      a legitimate reason for the evidence, such as to establish: 1)
      motive; 2) intent; 3) absence of mistake or accident; 4) a common
      scheme or plan; and 5) identity. The evidence may also be
      admissible to impeach the credibility of a testifying defendant; to
      show that the defendant has used the prior bad acts to threaten
      the victim; and in situations where the bad acts were part of a
      chain or sequence of events that formed the history of the case
      and were part of its natural development.

Commonwealth v. Page, 965 A.2d 1212, 1219 (Pa. Super. 2009) (citation

and emphasis omitted); see also Pa.R.E. 404(b). Further, such evidence may

only be admitted if “the probative value of the evidence outweighs its potential

for unfair prejudice.” Pa.R.E. 404(b).

      Here, Williams’s account of her unsavory relationship with Carter shed

light on their relationship, and supplemented the description of the incident at

issue in this case. Indeed, Williams’s account formed the natural development

of the facts, and therefore did not constitute impermissible character

evidence. See Commonwealth v. Powell, 956 A.2d 406, 419-20 (Pa. 2008)

(concluding that the trial court did not err in admitting victim’s mother’s

statement that appellant “put his hands on her when he was drunk or high”

because the statement was not offered to demonstrate appellant’s propensity

to commit a crime, but to establish the family environment and relationships

between appellant, victim, and victim’s mother); Commonwealth v. Dillon,

925 A.2d 131, 141 (Pa. 2007) (stating that “[e]vidence will not be prohibited

merely because it is harmful to the defendant. This Court has stated that it is

not required to sanitize the trial to eliminate all unpleasant facts from the


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jury’s consideration where those facts are relevant to the issues at hand and

form part of the history and natural development of the events and offenses

for which the defendant is charged.” (citation and quotation marks omitted)).

Further, given the nature of the injuries Williams suffered, this evidence was

also relevant to show Carter’s intent and malice. See Powell, 956 A.2d at

420.   Finally, when the trial court judge sits as the fact-finder, he/she “is

presumed to disregard inadmissible evidence and consider only competent

evidence.” Commonwealth v. Kearney, 92 A.3d 51, 61 (Pa. Super. 2014)

(citation omitted). Thus, based upon the foregoing, we conclude that the trial

court did not abuse its discretion in admitting the evidence, and Carter’s first

claim is without merit.

       In his second claim, Carter contends that the evidence was insufficient

to support his robbery, theft by unlawful taking, and receiving stolen property

convictions. Brief for Appellant at 17-18, 23. Carter argues that there is no

evidence that he took anything of value from Williams. Id. at 17, 23. Carter

asserts that Williams’s initial testimony that she lost her phone when Carter

punched her demonstrates that she failed to retrieve the phone, not that he

took the phone. Id. at 17, 18, 20, 21-22; see also id. at 18, 21-22 (claiming

that there were contradicting statements regarding the lost phone). Carter

further asserts that even if the evidence demonstrated he took the phone, the

evidence would not support the robbery conviction because the taking of the

phone was separate and unrelated to the assault. Id. at 17, 20-21, 22, 23;


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see also id. at 17, 18-19, 21 (arguing that the evidence of Carter taking the

phone does not establish that it occurred in the “course of committing a

theft”).

      Our standard of review of a sufficiency challenge is as follows:

      When evaluating a sufficiency claim, our standard is whether,
      viewing all the evidence and reasonable inferences in the light
      most favorable to the Commonwealth, the fact[-]finder
      reasonably could have determined that each element of the crime
      was established beyond a reasonable doubt. This Court considers
      all the evidence admitted, without regard to any claim that some
      of the evidence was wrongly allowed. We do not weigh the
      evidence or make credibility determinations. Moreover, any
      doubts concerning a defendant’s guilt were to be resolved by the
      fact[-]finder unless the evidence was so weak and inconclusive
      that no probability of fact could be drawn from that evidence.

Commonwealth v. Moyer, 171 A.3d 849, 852 (Pa. Super. 2017) (citation

omitted).

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

he … inflicts bodily injury upon another or threatens another with or

intentionally puts him in fear of immediate bodily injury[.]”     18 Pa.C.S.A.

§ 3701(a)(1)(iv); see also Commonwealth v. Jenkins, 96 A.3d 1055, 1061

(Pa. Super. 2014). “An act shall be deemed ‘in the course of committing a

theft’ if it occurs in an attempt to commit theft or in flight after the attempt

or commission.”    18 Pa.C.S.A. § 3701(a)(2).     “Bodily injury” is defined as

“impairment of physical condition or substantial pain.” Id. § 2301.




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      “A person is guilty of theft if he unlawfully takes, or exercises unlawful

control over, movable property of another with intent to deprive him thereof.”

Id. § 3921(a).

      The Crimes Code defines receiving stolen property as follows: “A person

is guilty of theft if he intentionally receives, retains, or disposes of movable

property of another knowing that it has been stolen, or believing that it has

probably been stolen, unless the property is received, retained, or disposed

with intent to restore it to the owner.” Id. § 3925(a). Receiving “means

acquiring possession, control or title, or lending on the security of the

property.” Id. § 3925(b).

      The trial court addressed Carter’s claim as follows:

      Here, [the trial c]ourt found [Williams’s] testimony regarding the
      incident that took place on March 14, 2015, to be credible.
      [Williams] testified that [Carter] punched her and then proceeded
      to kick her while she was on the ground. At that point, [Carter]
      took her cell phone from her, without her permission, and ran to
      [Williams’s] car. When he returned to [Williams], he made no
      move to return her cell phone to her and presumably kept the cell
      phone while knowing it did not belong to him. [Williams] further
      testified that she had her phone in her hand when she went to
      [Carter’s] house, and that she was unable to retrieve it upon
      leaving that day. [] [T]he phone was neither recovered nor
      returned to her. … [The trial c]ourt, in light of all the evidence
      presented, determined the Commonwealth met its burden in
      proving the sufficiency of the evidence for the crimes of theft by
      unlawful taking, robbery, and receiving stolen property.

Trial Court Opinion, 5/2/17, at 8.

      Viewing the evidence in a light most favorable to the Commonwealth,

the trial court, acting as the fact-finder, was free to determine that Carter had


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the intent to steal the phone while inflicting bodily injury upon Williams,

including punching and kicking her. See Commonwealth v. Walls, 950 A.2d

1028, 1032 (Pa. Super. 2008) (concluding that the evidence was sufficient to

support a robbery conviction where the appellant stabbed the victim multiple

times and stole a cigarette case); see also Commonwealth v. Talbert, 129

A.3d 536, 543 (Pa. Super. 2015) (noting that Commonwealth may sustain its

burden by wholly circumstantial evidence and that the fact-finder is free to

believe all, part, or none of the evidence and testimony presented). Further,

the credible evidence indicated that Carter exercised unlawful control of

Williams’s phone, and never returned the phone. Thus, upon our review of

the record and credible evidence, we conclude that the evidence was sufficient

to support Carter’s robbery, theft by unlawful taking, and receiving stolen

property convictions. See Trial Court Opinion, 5/2/17, at 8.

      Finally, we note that there is an issue concerning merger of Carter’s

sentences,    which   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). It is well settled

that this Court may address the legality of a sentence sua sponte.

Commonwealth v. Wolfe, 106 A.3d 800, 801 (Pa. Super. 2014).                 “[O]ur

standard of review is de novo and our scope of review is plenary.” Nero, 58

A.3d at 806 (citation omitted).


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          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 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. Id.

Commonwealth v. Jenkins, 96 A.3d 1055, 1056 (Pa. Super. 2014).

           If the offenses stem from two different criminal acts, merger
     analysis is not required. In this regard, the threshold question is
     whether [a]ppellant 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) (brackets,

citations, and some quotation marks omitted, brackets added).

     As noted above, the robbery, theft by unlawful taking, and receiving of

stolen property occurred in a single criminal act.      Further, the statutory

elements of theft by unlawful taking and receiving stolen property are

subsumed by robbery for sentencing purposes.         See Commonwealth v.

Yancey, 447 A.2d 1041, 1043 (Pa. Super. 1982) (concluding that the offenses


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of theft by unlawful taking and receiving stolen property merged into the

offense of robbery); see also Commonwealth v. Humpheys, 532 A.2d 836,

845 (Pa. Super. 1987) (stating that “conviction for theft by receiving stolen

property was subsumed into the robbery [conviction] for sentencing

purposes.”). Thus, Carter’s sentences as to his theft by unlawful taking and

receiving stolen property convictions merge with his robbery conviction.

Accordingly, we vacate the sentences imposed for theft by unlawful taking and

receiving stolen property.

      With regard to whether simple assault and robbery merge, we note that

the statutory elements of simple assault are included within the elements of

robbery. See Commonwealth v. Jenkins, 96 A.3d 1055, 1062 (Pa. Super.

2014) (noting that “simple assault does not require proof of any statutory

element that robbery does not also require.”) (footnote omitted); see also

id. at 1059 (noting that “a conviction for simple assault may merge with a

robbery conviction for sentencing purposes, if the prerequisites for such

merger are clearly established.”). In examining whether simple assault and

robbery arose out of the same criminal act, we must examine whether the

defendant’s actions constituted a single criminal act, with reference to the

crimes charged by the Commonwealth in the criminal information. Id. at

1060-61.

      Here, the Criminal Information lists the criminal offenses and the

statutory elements, but does not charge distinct criminal acts. See Criminal


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Information, 4/13/15, at 1. Moreover, at trial, the Commonwealth did not

indicate what specific conduct constituted the evidence supporting each

offense. While the numerous acts of Carter hitting Williams can be separated

into distinct crimes, the lack of detail in the Criminal Information constrains

us to conclude that simple assault and robbery must merge at sentencing. Cf.

Jenkins, 96 A.3d at 1061-64 (concluding that where the criminal information

enumerated the elements of simple assault and robbery, and provided a

description of the facts underlying the crimes which demonstrated multiple

criminal acts, and the evidence at trial supported the description, the

sentences for each conviction were not subject to merger). Accordingly, we

vacate the judgment of sentence for simple assault.

      Despite our conclusion, we need not remand for re-sentencing, as the

sentences in question were imposed concurrently to the probation term for

the robbery conviction; thus, we have not upset the sentencing scheme. See

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

(stating that “[w]e need not remand for re-sentencing, however, as we have

not   upset   the   sentencing    scheme   consisting   entirely   of   concurrent

sentences.”); see also Order, 4/8/16, at 1-2 (wherein the trial court imposed

the probation terms for simple assault, theft by unlawful taking, and receiving

stolen property convictions concurrent to the probation term for the robbery

conviction). The judgment of sentence as corrected in this Memorandum is

affirmed in all other respects.


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      Judgment of sentence affirmed in part and vacated in part. Jurisdiction

relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date:5/1/18




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