J-S27013-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                      Appellee                 :
                                               :
               v.                              :
                                               :
    JAMES MILLER                               :
                                               :
                      Appellant                :       No. 1044 EDA 2016


             Appeal from the Judgment of Sentence March 9, 2016
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0001551-2014


BEFORE: GANTMAN, P.J., OTT, J., and PLATT, J.*

MEMORANDUM BY GANTMAN, P.J.:                              FILED JUNE 09, 2017

        Appellant, James Miller, appeals from the judgment of sentence

entered in the Philadelphia County Court of Common Pleas, following his

bench trial convictions of two counts each of robbery and criminal

conspiracy, and one count of theft by unlawful taking or disposition—

movable property.1 We affirm.

        The relevant facts and procedural history of this case are as follows.

Victims placed an advertisement on Craigslist, which indicated their desire to

purchase cell phones for resale purposes.            Appellant responded to the

advertisement and informed Victims he had sixteen new iPhones available
____________________________________________


1
    18 Pa.C.S.A. §§ 3701(a)(1)(ii), 903, and 3921(a), respectively.


_____________________________

*Retired Senior Judge assigned to the Superior Court.
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for sale.   The parties subsequently planned to meet for the transaction at

Franklin Mills Mall. On October 21, 2013, Appellant arrived at the mall in a

Chevy Impala, followed by his co-defendant in a Jeep. Appellant exited his

vehicle, showed Victims one iPhone, and told Victims the rest of the iPhones

were in the Jeep.     Victims subsequently walked over to the Jeep, where

Appellant’s co-defendant demanded to see the money before he allowed

Victims to examine the remaining iPhones. During the exchange, Appellant’s

co-defendant pointed a gun at Victims, told Victims to get on the ground,

and stole $6,500.00 in cash from Victims. Appellant and his co-defendant

then fled in their respective vehicles. Victims memorized the Jeep’s license

plate number, as the vehicle drove away, and called the police immediately

after the incident.   Using the Jeep’s license plate number, police identified

Appellant and his co-defendant. Both Victims subsequently identified

Appellant and his co-defendant as the perpetrators of the robbery.

      On February 19, 2014, the Commonwealth charged Appellant with two

counts each of robbery, criminal conspiracy, simple assault, recklessly

endangering another person (“REAP”), and one count each of persons not to

possess firearms, firearms not to be carried without a license, carrying

firearms on public streets in Philadelphia, theft by unlawful taking or

disposition—movable property, receiving stolen property, and possessing

instruments of crime.     Appellant proceeded to a bench trial.      The court

ultimately convicted Appellant on July 16, 2015, of two counts each of


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robbery and criminal conspiracy, and one count of theft by unlawful taking

or disposition—movable property.           The court deferred sentencing pending

the preparation of a pre-sentence investigation (“PSI”) report.

       On March 9, 2016, the court sentenced Appellant to three and one-half

(3½) to ten (10) years’ imprisonment for each of Appellant’s two robbery

convictions, and three and one-half (3½) to ten (10) years’ imprisonment for

each of Appellant’s two criminal conspiracy convictions. The court ordered

Appellant to serve all sentences concurrently; thus, Appellant received an

aggregate term of three and one-half (3½) to ten (10) years’ imprisonment.

Appellant timely filed a notice of appeal on April 4, 2016. On May 6, 2016,

the court ordered Appellant to file a concise statement of errors complained

of on appeal pursuant to Pa.R.A.P. 1925(b), and Appellant’s counsel filed a

Rule 1925(c)(4) statement of intent to file an Anders brief on May 24,

2016.2

       Appellant raises the following issue for our review:

          DO THE TWO COUNTS OF CRIMINAL CONSPIRACY, WHICH
          OCCURRED    UNDER     THE   SAME    CONTINUOUS
          CONSPIRATORIAL    RELATIONSHIP,   MERGE     FOR
          SENTENCING PURPOSES?

(Appellant’s Brief at 3).

       Appellant argues the Commonwealth failed to present evidence of

____________________________________________


2
  Despite the filing of a Rule 1925(c)(4) statement, counsel has filed an
advocate’s brief on Appellant’s behalf.



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separate, conspiratorial agreements for the robbery of each Victim to justify

the imposition of separate sentences for Appellant’s two conspiracy

convictions.    Appellant   maintains       the   evidence   presented   at   trial

demonstrated the robbery of both Victims was the product of one conspiracy

pursuant to Section 903(c).      Appellant claims the court’s imposition of

separate sentences for each conspiracy conviction amounts to punishing

Appellant twice for the same conduct. Appellant concludes the court erred

when it imposed a separate sentence for each of Appellant’s two criminal

conspiracy convictions, and this Court should vacate one of his criminal

conspiracy convictions. After a thorough review, we conclude Appellant has

waived this issue.

      “[A]s a general rule, the failure to raise an issue in an ordered Rule

1925(b) statement results in the waiver of that issue on appeal.”

Commonwealth v. Poncala, 915 A.2d 97, 100 (Pa.Super. 2006), appeal

denied, 594 Pa. 678, 932 A.2d 1287 (2007). Any issue not raised in a Rule

1925(b) statement will be deemed waived.          Id.   As long as the reviewing

court has jurisdiction, however, a challenge to the legality of the sentence is

non-waivable and this Court can even raise and address it sua sponte.

Commonwealth v. Infante, 63 A.3d 358 (Pa.Super. 2013).

      Importantly, Section 903 of the Crimes Code provides in relevant part:

         § 903. Criminal conspiracy

                                  *     *     *


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         (c) Conspiracy with multiple criminal objectives.—
         If a person conspires to commit a number of crimes, he is
         guilty of only one conspiracy so long as multiple crimes are
         the object of the same agreement or continuous
         conspiratorial relationship.

18 Pa.C.S.A. § 903(c). “This subsection reflects the fact that the conspiracy

is the crime, and that [it] is one, however diverse its objects.” By its terms,

Section 903(c) implicates a factual assessment of either the conspiratorial

agreement or the relationship of the conspirators.”       Commonwealth v.

Andrews, 564 Pa. 321, 330, 768 A.2d 309, 314 (2001) (internal citations

and quotations marks omitted). As a result, a challenge to the imposition of

multiple conspiracy sentences pursuant to Section 903(c) is a challenge to

the sufficiency of the evidence, not a challenge to the legality of the

sentence, because the claim centers on the fact-based question of whether

the crimes were the product of one agreement or multiple agreements.

Commonwealth v. Marinez, 777 A.2d 1121, 1125 (Pa.Super. 2001),

appeal denied, 567 Pa. 739, 788 A.2d 374 (2001) (citing Andrews, supra).

      Instantly, the court sentenced Appellant to an aggregate term of three

and one-half (3½) to ten (10) years’ imprisonment on March 9, 2016.

Significantly, Appellant’s sentence included individual, concurrent terms of

three and one-half (3½) to ten (10) years’ imprisonment for each of

Appellant’s two criminal conspiracy convictions. Appellant did not file a post-

sentence motion; however, Appellant timely filed a notice of appeal on April

4, 2016. In response to the court-ordered Rule 1925(b) statement, on May


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24, 2016, Appellant’s counsel filed a Rule 1925(c)(4) statement of his intent

to file an Anders brief.      Counsel’s Rule 1925(c)(4) statement indicated

Appellant’s desire to raise the following issues on appeal:

         1. THE TRIAL COURT COMMITTED AN ABUSE OF
         DISCRETION BY DENYING A MOTION FOR A MISTRIAL
         PROFFERED AFTER A WITNESS IMPLIED THAT APPELLANT
         THREATENED HIM UNLESS THE WITNESS DROPPED THE
         CASE BECAUSE THERE WAS NO MENTION OF ANY
         THREATS IN THE DISCOVERY MATERIAL PROVIDED TO
         THE DEFENSE.

         2. THE TRIAL COURT COMMITTED AN ABUSE OF
         DISCRETION BY DENYING A MOTION FOR A MISTRIAL
         PROFFERED AFTER A KEY COMMONWEALTH WITNESS
         INDICATED THAT HE HAD VIOLATED A SEQUESTRATION
         ORDER.

(See Rule 1925(c)(4) Statement, filed May 24, 2016, at 1).                 Counsel

subsequently filed an advocate’s brief on Appellant’s behalf, which raised

only the following issue for our review:

         DO THE TWO COUNTS OF CRIMINAL CONSPIRACY, WHICH
         OCCURRED    UNDER     THE   SAME    CONTINUOUS
         CONSPIRATORIAL    RELATIONSHIP,   MERGE     FOR
         SENTENCING PURPOSES?

(See Appellant’s Brief, filed November 11, 2016, at 3).         In his argument,

Appellant asserts the court’s imposition of two separate sentences for his

two   criminal   conspiracy   convictions   constitutes   an   “illegal”   sentence

pursuant to Section 903(c). Under settled, controlling precedent, however,

Appellant’s claim is actually a challenge to the sufficiency of the evidence

due to the fact-based assessment required to resolve the issue.                See

Marinez, supra. Because Appellant failed to raise this claim before the trial

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court or in his court-ordered Rule 1925(b) statement, it is waived for

purposes of this appeal. See Poncala, supra. Accordingly, we affirm the

judgment of sentence.3

       Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/9/2017




____________________________________________


3
   We observe the Pennsylvania Supreme Court’s recent decision in
Commonwealth v. Rosado, ___ Pa. ___, 150 A.3d 425 (2016), which
states “the filing of an appellate brief which abandons all preserved issues in
favor of unpreserved ones constitutes ineffective assistance of counsel per
se.” Id. at ___, 150 A.3d at 434. Generally, however, “claims of ineffective
assistance of counsel are to be deferred to PCRA review.” Commonwealth
v. Holmes, 621 Pa. 595, 620, 79 A.3d 562, 576 (2013). Instantly,
counsel’s abandonment of the preserved issues raised in the Rule 1925(c)(4)
statement in favor of the unpreserved sufficiency of the evidence issue
raised in Appellant’s brief might constitute ineffective assistance of counsel.
See Rosado, supra. Nevertheless, to obtain relief, Appellant must raise his
claim in a timely filed PCRA petition under the rubric of ineffective assistance
of counsel. See Holmes, supra.



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