J-S28032-19


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,                 :   IN THE SUPERIOR COURT OF
                                              :         PENNSYLVANIA
                   Appellee                   :
                                              :
           v.                                 :
                                              :
ANDY IRIZARRY,                                :
                                              :
                   Appellant                  :   No. 228 MDA 2019

        Appeal from the Judgment of Sentence Entered May 9, 2018
            in the Court of Common Pleas of Lancaster County
           Criminal Division at No(s): CP-36-CR-0003091-2017

BEFORE:         BOWES, J., MCLAUGHLIN, J. and STRASSBURGER, J.*

MEMORANDUM BY STRASSBURGER, J.:                         FILED AUGUST 06, 2019

     Andy Irizarry (Appellant) appeals nunc pro tunc from the judgment of

sentence    imposed     following   his   convictions    for   arson   and   criminal

conspiracy. Upon review, we affirm.

     On December 10, 2016, police were dispatched to 444 South Prince

Street in Lancaster City for a burglar alarm.           Upon arrival, Officer March

Gehron of the Lancaster City Bureau of Police observed “smoke billowing

from the windows and doors of a building occupied by Doctor Tire. [Officer]

Gehron also saw flames inside the building.”                   Trial Court Opinion,

10/11/2018 at 6 (citation omitted). Eventually, Sergeant Dustin Shireman,

a fire marshal with the Pennsylvania State Police, arrived at the scene to

investigate. Upon his arrival, Sergeant Shireman




*Retired Senior Judge assigned to the Superior Court.
J-S28032-19


      determined that a set of windows was broken before the fire was
      started, the origin of the fire was inside the building under the
      windows, several burnt rags and a clear bottle were found at
      that location, and there was an odor of gasoline. [Sergeant]
      Shireman collected the rags and bottle, securing them in a metal
      container. Later analysis by Albert Lattanzi, PSP forensic
      scientist, determined the presence of gasoline on the submitted
      items. According to [Sergeant] Shireman, the cause of the fire
      was an intentionally set arson, where gasoline was used to fuel
      an open flame on the rags.

Id. (citations omitted).

      Through further investigation, police were able to compile a series of

surveillance videos that captured the arson on video.

      These videos showed a Lexus parked behind a car wash across
      the street from Doctor Tire and the beginning of the arson. When
      he pieced the videos together, [Detective Adam] Dommel
      determined he had the entire incident on video except for a
      seven-minute period of time when the suspect vehicle left the
      area and then returned to the scene.

Id. at 7 (citations omitted). Detective Dommel was able to fill in the seven-

minute gap by checking surveillance video from

      nearby Turkey Hill gas station, which was located approximately
      nine city blocks from Doctor Tire. Upon checking Turkey Hill
      video during the seven-minute gap, the suspect Lexus vehicle
      was shown parked in front of Pump 3. A male in a black
      sweatshirt, black baseball hat, and cash in his hand was seen
      inside the store pointing to a pump outside. That male then left
      the store, walked over to the parked Lexus, retrieved a gas can
      from the back hatch, returned with an item, placed it back into
      the hatch, and entered the right rear passenger side door. The
      vehicle then left the parking lot at 11:16 p.m., or a few minutes
      later because [Dectective] Dommel believed the Turkey Hill
      video was running slow.

            The seven-minute gap ended at approximately 11:22 p.m.,
      when the suspect vehicle[, occupied by four individuals,] is seen
      returning to the area and parking in a lot behind the laundromat.

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      The right rear passenger got out of the vehicle, and two persons
      were seen walking to the rear of Doctor Tire where the fire was
      set. Flashing light was then visible, which appeared to be
      something burning, and two people headed back to the suspect
      vehicle from the rear of Doctor Tire. As they were doing so, the
      two subjects crossed in front of a vehicle that had just turned
      from Prince Street onto Hazel Street, which [Detective] Dommel
      believed was being driven by [a passing motorist]. The suspect
      vehicle then left the scene.

                                       ***

            Luis Martinez [] testified that he was the sales manager at
      Doctor Tire since its inception five years ago. On December 10,
      2016, Martinez closed the business [for the day]. Martinez then
      returned to the store as a result of the fire, at which time he
      provided police with video from the surveillance system.
      According to Martinez, the video showed moving bodies, but he
      could not make out any faces. The business is no longer in
      existence as a result of the fire.

            Martinez was good friends with Appellant, having known
      him since the [1990s]. Several weeks before the fire, Martinez
      saw Appellant at the store asking for tires. Appellant then
      threatened another customer, at which time Martinez told
      Appellant he would have to leave. Appellant cursed at Martinez
      for not having his back, before apologizing to Martinez and
      leaving.   Police showed Martinez the video that had been
      obtained from the Turkey Hill store, and Martinez immediately
      recognized Appellant as the person in the video. In fact,
      Appellant was wearing the same hoodie and hat in the video that
      he was wearing when he was at Doctor Tire.

Id. at 8-9 (citations and footnotes omitted).

      Based on the foregoing, Appellant was charged with arson and criminal

conspiracy. Eventually, Appellant proceeded to a jury trial. Following trial,

Appellant was convicted of both crimes, and on May 9, 2018, the trial court

sentenced Appellant to 27 months to 10 years’ incarceration on each count

and ordered the sentences to run consecutively to one another.     Appellant

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timely filed a post-sentence motion to modify sentence, which the trial court

denied. Post-Sentence Motion, 5/16/2018. This appeal followed.1,2

        On appeal, Appellant sets forth the following issue for our review:

“Was it an abuse of discretion to refuse to merge the sentences for [a]rson

and [c]onspiracy where both crimes arose from a single act?”           Appellant’s

Brief at 5 (suggested answer omitted).        Although presented as a single

claim, on appeal, it appears to this Court that Appellant is attempting to

raise a hybrid challenge to the legality and the discretionary aspects of his

sentence.     Id. at 10.   Specifically, Appellant contends (1) his arson and

conspiracy convictions should have merged for sentencing purposes, and (2)

running the sentences consecutively to one another was an abuse of

discretion. Id. (Appellant’s “aggregate sentence of 4½ to 20 years resulted

from two sentences being improperly run consecutive to one another; both

convictions were based upon the exact same criminal act/episode, and

should have been merged. The record demonstrates that the consecutive

sentence was imposed by the [trial c]ourt because [Appellant] continued to




1  On August 23, 2018, after denial of his post-sentences motions, Appellant
timely filed a notice of appeal. However, on October 22, 2018, this Court
issued an order dismissing Appellant’s appeal for failure to file a docketing
statement pursuant to Pa.R.A.P. 3517. On January 23, 2019, Appellant filed
a petition to appeal nunc pro tunc, which the trial court granted. Order,
1/28/2019.

2
    Both Appellant and the trial court complied with Pa.R.A.P. 1925.


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assert that he was factually innocent of the arson charge[.] … The aggregate

sentence was therefore manifestly excessive, and thus unjust.”).

      We address first Appellant’s challenge to the discretionary aspects of

his sentence. Before we reach the merits of this issue, we consider whether

Appellant has preserved this issue for appeal. “Where the trial court orders

an Appellant to file a concise statement of matters complained of on appeal

under Pa.R.A.P. 1925, any issue not contained in that statement is waived

on appeal.” Commonwealth v. Rolan, 964 A.2d 398, 409 (Pa. Super.

2008) (internal quotation marks and citations omitted).

      In this case, Appellant’s concise statement of errors complained of on

appeal sets forth the following two issues:

      1. Whether the evidence presented by the Commonwealth was
      sufficient to support the [trial c]ourt’s finding of guilt for each
      offense; where the Commonwealth’s evidence could not have
      proved each and every element of each offense beyond a
      reasonable doubt.[3]

      2. Whether the trial court erred by not merging the offenses,
      [a]rson and [c]onspiracy, for sentencing purposes, where the
      crimes arise from a single act.

Concise Statement, 2/12/2019. It is clear that Appellant preserved properly

his merger claim.    However, Appellant did not set forth any issue that

encompasses a challenge to the trial court’s exercise of discretion in


3
  Appellant abandoned his sufficiency claim on appeal. See Appellant’s Brief
at 5, n.1 (“Having had the opportunity to review the trial transcript and [the
trial court’s 1925(a) s]tatement, the undersigned counsel has elected to
remove from this [b]rief the question regarding sufficiency of proof
presented at trial for conviction of [a]rson.”).

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imposing consecutive sentences. As noted supra, a claim that crimes should

merge for sentencing purposes, implicating the legality of a petitioner’s

sentence, is distinct from an issue challenging the court’s discretion in

fashioning a petitioner’s sentence.

      Because Appellant failed to include a challenge to the discretionary

aspects of his sentence in his concise statement, we hold that he has waived

this issue. See Pa.R.A.P. 1925(b)(4)(vii) (“Issues not included in the

Statement and/or not raised in accordance with the provisions of this

paragraph (b)(4) are waived.”).

      We now address Appellant’s merger claim.        A claim that two crimes

should have merged for sentencing purposes implicates the legality of the

sentence.   Commonwealth v. Brown, 159 A.3d 531, 532 (Pa. Super.

2017). Our standard of review for a challenge to the legality of a sentence is

de novo, and our scope of review is plenary. Id.

      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. § 9765.

      “The statute’s mandate is clear. It 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.” Commonwealth v. Baldwin, 985 A.2d 830, 833

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(Pa. 2009).     Appellant argues that the crimes of arson and criminal

conspiracy to commit arson should have been merged for sentencing

purposes because the elements of arson are all included in the statutory

elements of criminal conspiracy, although for the purposes of this appeal,

Appellant focuses on the latter argument. Appellant’s Brief at 17-18.

      Notably, “[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.          That is, the law has always

considered criminal conspiracy and the completed substantive offense to be

separate crimes.”4    Commonwealth v. Miller, 364 A.2d 886, 886-87 (Pa.

1976) (citations omitted).    See also Commonwealth v. Chambers, 188

A.3d 400, 410 (“Once the conspiracy is established beyond a reasonable

doubt, a conspirator can be convicted of both the conspiracy and the

substantive offense that served as the illicit objective of the conspiracy.”).

      Appellant concedes as much.       See Appellant’s Brief at 18-19 (“As a

general rule in the Commonwealth, the crimes of conspiracy and the

completed underlying offenses do not merge.”).         Nevertheless, Appellant

argues that his convictions should have merged because




4  Additionally, “[o]ur Supreme Court has held that the same facts may
support multiple convictions and separate sentences for each conviction
except in cases where the offenses are greater and lesser included offenses.”
Commonwealth v. Thomas, 879 A.2d 246, 263 (Pa. Super. 2005)
(internal quotation marks omitted).


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     the arson subsection used to charge [Appellant, 18 Pa.C.S.]
     §3301(c), permitted conviction for simply “counseling” another
     to cause a fire. This subsection of arson and the
     conspiracy/arson charge seems to present a different situation
     than most convictions for a substantive offense and conspiracy
     add-on charge. [S]ubsection [§3301(c)] is arguably an exact
     replica of the conspiracy charge. That is, both sections are
     expressly written by the legislature to punish the meeting of
     minds between two or more individuals when the topic involves
     an arson.

Id. at 19 (unnecessary capitalization omitted).       The following statutes

govern arson and criminal conspiracy.

     A person commits [arson endangering property,] a felony of the
     second degree if he intentionally starts a fire or causes an
     explosion, whether on his own property or that of another, or if
     he aids, counsels, pays or agrees to pay another to cause a fire
     or explosion, and if: (1) he commits the act with intent of
     destroying or damaging a building or unoccupied structure of
     another.

18 Pa.C.S. § 3301(c)(1).

     A person is guilty of conspiracy with another person or persons
     to commit a crime if with the intent of promoting or facilitating
     its commission he: (1) agrees with such other person or persons
     that they or one or more of them will engage in conduct which
     constitutes such crime or an attempt or solicitation to commit
     such crime; or (2) agrees to aid such other person or persons in
     the planning or commission of such crime or of an attempt or
     solicitation to commit such crime.

18 Pa.C.S. § 903.

     Upon review, we find Appellant’s merger argument without merit.

First, our case law has set forth firmly, without equivocation, that “a

conspiracy conviction does not merge for sentencing purposes with a

completed   offense   which   was   the   objective   of   the   conspiracy."



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Commonwealth v. Yates, 562 A.2d 908, 910 (Pa. Super. 1989).5

Moreover, we find the arson statute, which allows for a conviction upon the

finding that an individual “counselled” another, to be distinguishable from

the crime of criminal conspiracy, which requires a finding that one agreed

with another to commit a crime.     Specifically, unlike counselling, which is

defined as providing “[a]dvice or assistance; opinion given as the result of

consultation[,]” Black’s Law Dictionary (10th ed. 2014), “[a]t the heart of

every conspiracy lies the common understanding or agreement between

the actors. Implicit in any conspiracy is proof ... that an accused agrees to

participate in the alleged criminal activity.”          Commonwealth v.

Chambers, 188 A.3d 400, 410 (Pa. 2018) (quotation marks and citation

omitted; emphasis added). Thus, all of the elements of criminal conspiracy

are not encompassed in the crime of arson.      Accordingly, in line with our

long-standing precedent, we find that the crimes of arson and conspiracy do

not merge. Thus, Appellant’s legality-of-the-sentence claim fails.

     Accordingly, after a review of the briefs, record, and applicable case

law, we are not persuaded that Appellant’s issues warrant relief from this

Court.




5 Notably, Appellant did not cite any case law to support his novel argument.
See Appellant’s Brief at 19 (“The undersigned was not able to find a case
involving this exact situation.”).

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     Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/6/2019




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