J-S25023-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

ANTHONY DEFILIPPO

                            Appellant                No. 1568 WDA 2014


              Appeal from the PCRA Order dated August 22, 2014
                In the Court of Common Pleas of Potter County
               Criminal Division at No: CP-53-CR-0000112-2011

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

ANTHONY DEFILIPPO

                            Appellant                No. 1569 WDA 2014


              Appeal from the PCRA Orders dated August 22, 2014
                In the Court of Common Pleas of Potter County
               Criminal Division at No: CP-53-CR-0000113-2011


BEFORE: BENDER, P.J.E., STABILE, and PLATT,* JJ.

MEMORANDUM BY STABILE, J.:                             FILED JUNE 29, 2015

        Appellant Anthony Defilippo appeals from the August 22, 2014 orders

of the Court of Common Pleas of Potter County (“PCRA court”), which

dismissed without a hearing his request for collateral relief under the Post
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-46. Upon review, we

affirm.

      A prior panel of this Court summarized the facts and procedural history

underlying this case as follows.

      As to [1569 WDA 2014], on February 5, 2009, Appellant
      attempted to sell one-half ounce of cocaine to Pennsylvania
      State Police Trooper Nicholas Madigan. On March 3, 2009,
      Appellant sold one ounce of marijuana and a .22 caliber Colt
      handgun to Trooper Madigan.[FN.1] On March 10, 2009, Appellant
      sold Trooper Madigan an over/under rifle, ten morphine pills, and
      one ounce of marijuana.[FN.2] On March 16, 2009, Appellant sold
      Trooper Madigan Adderall, oxycodone, a .22 caliber handgun,
      and a .22 caliber rifle.[FN.3] The serial number on the .22 caliber
      handgun had been obliterated. On March 26, 2009, Appellant
      sold Trooper Madigan a handgun and a rifle. A juvenile was
      present during the transaction. Finally, on March 30, 2009,
      Appellant sold Trooper Bobby Clegg a handgun, a shotgun, and a
      rifle. The serial numbers on the handgun and shotgun were
      obliterated.
            [FN.1] Although Trooper Madigan sought to purchase
            one ounce of marijuana, it appears Appellant only
            gave Trooper Madigan one-half ounce of marijuana.
            [FN.2] This time, even though Trooper Madigan paid
            for one ounce of marijuana, he only received
            approximately three-quarters of an ounce.
            [FN.3] Trooper Madigan paid for one ounce of
            marijuana; however, he only received approximately
            three-quarters of an ounce. Also, the oxycodone
            pills were actually morphine.

            As to [1568 WDA 2014], Appellant and three co-
      conspirators burglarized a log cabin located at the corner of
      Sunnyside Rd. and Canda Hollow Rd. and three seasonal
      residences located on Dug Rd. They stole a chain saw, planer,
      and a Redi heater. They then traveled to New York to sell the
      stolen goods.
            The procedural histories of these cases are as follows. In
      [1569 WDA 2014], the criminal complaint was filed on November
      12, 2010. Appellant was arrested on November 12, 2010. A 33-
      count information was filed on June 1, 2011 and an amended
      33-count information was filed on August 3, 2011. On March 7,
      2013, Appellant pled guilty to seven counts of manufacture,
      delivery, or possession with intent to deliver a controlled

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       substance [(35 P.S. § 780-113(a)(30))], possession of a firearm
       with an altered serial number [1(8 Pa.C.S.A. § 6110.2(a))],
       criminal use of a communication facility [(Pa.C.S.A. § 7512(a))],
       and transfer of a firearm by an unlicensed individual [(18
       Pa.C.S.A. § 6111(c))]. That plea was accepted on March 11,
       2013. On March 13, 2013, Appellant filed a motion to dismiss the
       charges pursuant to Pennsylvania Rule of Criminal Procedure
       600. The trial court denied the motion on May 7, 2013.
              In [1568 WDA 2014], a criminal complaint was filed on
       November 23, 2010. A 13-count information was filed on June
       1, 2011. On March 7, 2013, Appellant pled guilty to burglary
       [(18 Pa.C.S.A. § 3502(a))], theft by unlawful taking [(18
       Pa.C.S.A. § 3921(a))], and criminal mischief [(18 Pa.C.S.A.
       § 3304(a)(5))]. That plea was accepted on March 11, 2013. On
       March 13, 2013, Appellant filed a motion to dismiss the charges
       pursuant to Pennsylvania Rule of Criminal Procedure 600. The
       trial court denied the motion on May 7, 2013. On May 9, 2013,
       Appellant was sentence[d] to an aggregate term of 10 to 20
       years’ imprisonment for the two cases.[1]


Commonwealth v. Defilippo, Nos. 973 WDA 2013, 974 WDA 2013,

unpublished memorandum, at 1-4 (Pa. Super. filed January 8, 2014) (some

footnotes omitted). On appeal, this Court affirmed Appellant’s judgments of

sentence.2

       On April 29, 2014, Appellant pro se filed the instant PCRA petition. On

April 30, 2014, the PCRA court appointed Jarett Smith, Esquire, to represent

Appellant. On July 31, 2014, the PCRA court sent Appellant a Pa.R.Crim.P.

907 notice of its intent to dismiss the petition without a hearing. Following

receipt of Appellant’s response to the Rule 907 notice, on August 22, 2014,
____________________________________________


1
  The record reveals that at 1568 WDA 2014 Appellant received an
aggregate sentence of 21 to 42 months in prison to run concurrently with his
sentence of 120 to 240 months’ imprisonment at 1569 WDA 2014.
2
 Appellant did not file a petition for allowance of appeal to our Supreme
Court.




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the court dismissed Appellant’s PCRA petition.         Appellant filed a timely

appeal to this Court.        Following Appellant’s filing of a Pa.R.A.P. 1925(b)

statement of errors complained of appeal, the PCRA court issued a Pa.R.A.P.

1925(a) opinion, incorporating the reasons set forth in its July 31, 2014 Rule

907 notice to dismiss.

       On appeal,3 Appellant raises three issues for our review.           First,

Appellant argues his sentence at 1568 WDA 2014 is illegal because the

sentence for theft by unlawful taking of a firearm should have merged with

the burglary sentence. Second, Appellant argues the trial court abused its

discretion in imposing a consecutive sentence at 1569 WDA 2014, resulting

in an aggregate sentence of 120 to 240 months’ imprisonment.              Third,

Appellant argues the PCRA court erred in dismissing his petition without a

hearing.

       Appellant first contends his conviction for theft by unlawful taking of a

firearm should have merged with his conviction for burglary, a more serious

charge. We disagree.

       “Whether Appellant’s convictions merge for sentencing is a question

implicating the legality of Appellant’s sentence. Consequently, our standard


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3
  “In reviewing the denial of PCRA relief, we examine whether the PCRA
court’s determination ‘is supported by the record and free of legal error.’”
Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014) (quoting
Commonwealth v. Rainey, 928 A.2d 215, 223 (Pa. 2007)).




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of   review   is   de   novo   and    the   scope   of   our   review   is   plenary.”

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

statute in the Crimes Code contains a specific merger provision: “A person

may not be convicted both for burglary and for the offense which it was his

intent to commit after the burglarious entry or for an attempt to commit that

offense, unless the additional offense constitutes a felony of the first

or second degree.” 18 Pa.C.S.A. 3502(d) (emphasis added). As we have

explained, “[t]he purpose of Section 3502(d) . . . is to prevent dual

punishment for burglary and the offense which the accused intended to

commit when he effected his entry.” Commonwealth v. Downs, 483 A.2d

884, 890 (Pa. Super. 1984).          “Conviction for the purpose of 18 Pa.C.S.A.

§ 3502(d) refers not to the verdict but to the judgment of sentence.”

Commonwealth v. Couch, 731 A.2d 136, 144 (Pa. Super. 1999), appeal

denied, 743 A.2d 914 (Pa. 1999).            Thus, a person cannot be sentenced

separately for both burglary and the crimes that he intended to commit

while within the building, except for when the crimes constitute a felony of

the first or second degree. See generally id.

      With the foregoing principles in mind, we conclude the sentencing

court did not impose an illegal sentence. Our review of the record indicates

that, at 1568 WDA 2014, Appellant was sentenced to 18 to 36 months’

imprisonment for burglary, a felony of the first degree, and 21 to 42 months’




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imprisonment for theft by unlawful taking of a firearm, a felony of the

second degree.4 Accordingly, under the clear and unambiguous language

of Section 3502(d), theft by unlawful taking, graded as a second-degree

felony, does not merge as a matter of law with a burglary conviction.

        Appellant next argues the sentencing court abused its discretion in

imposing a consecutive sentence for two counts of possession with intent to

deliver (“PWID”) Marijuana (< 1 lbs.). For each PWID count, the sentencing

court imposed a sentence of 60 to 120 months’ imprisonment, resulting in

an aggregate sentence of 120 to 240 months in prison.

        We, however, reject this argument as waived.           Here, the record

indicates Appellant failed to challenge the discretionary aspects of his

sentence in a post-sentence motion and on direct appeal.               The PCRA

provides that waiver occurs where “the petitioner could have raised it but

failed to do so before trial, at trial, during unitary review, on appeal or in a

prior state postconviction proceeding.”          42 Pa.C.S.A. § 9544(b).    Thus,

failure to raise a claim that was available on direct appeal waives the claim

for purposes of collateral review.         Commonwealth v. Mitchell, 105 A.3d

1257, 1288-89 (Pa. 2014).              Moreover, instantly, Appellant raises the

discretionary aspects of sentence challenge as a standalone claim. In other

words, Appellant does not couch this claim as an ineffective assistance of


____________________________________________


4
    Appellant confirms this fact in his brief. See Appellant’s Brief at 10-11.



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counsel claim.    We long have held that challenges to the discretionary

aspects of sentencing are not cognizable under the PCRA. Commonwealth

v. Fowler, 930 A.2d 586, 593 (Pa. Super. 2007), appeal denied, 944 A.2d

756 (Pa. 2008). But see Commonwealth v. Hernandez, 755 A.2d 1, 6

(Pa. Super. 2000) (holding discretionary aspects of sentencing claims

couched within claim of ineffective assistance of counsel claim were

cognizable under PCRA).

      We now turn to Appellant’s last argument that the PCRA court erred in

dismissing his petition without a hearing. We, however, reject this argument

for want of merit. It is well-settled that the right to an evidentiary hearing

on a post-conviction petition is not absolute.    Commonwealth v. Payne,

794 A.2d 902, 906 (Pa. Super. 2002), appeal denied, 808 A.2d 571 (Pa.

2002). In fact, in Commonwealth v. Jordan, 772 A.2d 1011 (Pa. Super.

2001), we explained:

      A PCRA court may decline to hold a hearing if the petitioner’s
      claim is patently frivolous and is without a trace of support in
      either the record or from other evidence. A reviewing court on
      appeal must examine each of the issues raised in the PCRA
      petition in light of the record in order to determine whether the
      PCRA court erred in concluding that there were no genuine
      issues of material fact and denying relief without an evidentiary
      hearing.

Id. at 1014 (internal citations omitted). Thus, a PCRA court may dismiss a

petition for collateral relief without holding a hearing if there are no genuine

issues concerning any material fact. Pa.R.Crim.P. 907(1); Commonwealth

v. Springer, 961 A.2d 1262, 1264 (Pa. Super 2008). Instantly, the PCRA

court did not err in declining to hold an evidentiary hearing, because, as we

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noted above, the issues upon which Appellant seeks collateral relief do not

require factual findings.        His first issue concerning merger of theft by

unlawful taking into burglary involves a pure question of law. In addition,

Appellant’s second issue relating to the discretionary aspects of sentencing is

waived.

       In sum, based on the foregoing reasons, we conclude the PCRA court

did not err in dismissing without a hearing Appellant’s petition for collateral

relief.5

       Orders affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/29/2015




____________________________________________


5
  To the extent Appellant argues the PCRA court did not permit appointed
counsel to file an amended PCRA petition, see Appellant’s Brief at 15, we
reject this argument as misleading. Our review of the docket indicates the
PCRA court granted appointed counsel seven days to file “any
amendments” to Appellant’s pro se PCRA petition. PCRA Court Order,
7/8/14 (emphasis added).



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