J-S07026-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

DAVID DALTON GARNER,

                            Appellant                 No. 288 MDA 2014


             Appeal from the Judgment of Sentence of July 11, 2012
                In the Court of Common Pleas of Franklin County
              Criminal Division at No(s): CP-28-CR-0000061-2011


BEFORE: BENDER, P.J.E., OLSON AND OTT, JJ.

MEMORANDUM BY OLSON, J.:                              FILED APRIL 07, 2015

        Appellant, David Dalton Garner, appeals from the judgment of

sentence entered on July 11, 2012, as made final by the entry of an order

denying post-sentence motions on August 30, 2012, following his jury trial

convictions for four counts of kidnapping, two counts each of unlawful

restraint, robbery, and theft by unlawful taking, and one count each of

attempted aggravated assault and simple assault by physical menace.1

Upon review, we affirm.

        The facts of this case, as aptly summarized by the trial court, are as

follows:

              On December 10, 2010, at approximately 6:15 p.m.,
           Trooper Aaron Martin was called to investigate an attempted
____________________________________________


1
    18 Pa.C.S.A. §§ 2901, 2902, 3701, 3921, 901, and 2701, respectively.
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       homicide and robbery in St. Thomas Township, Franklin
       County, Pennsylvania. Trooper Martin proceeded to the
       emergency room of Chambersburg Hospital, where he met
       with the victims[,] Micah Eugene McGowan and Mary Eireen
       McGowan. He observed ligature marks on Micah’s neck, a
       stab wound on the left side of his head, and a laceration on
       the back of his head, along with swelling and bruising on his
       face.

           The incident occurred earlier that day. [Appellant] had
       just been released on parole earlier that morning. Micah
       stated that [Appellant] had knocked on his front door at
       2:30 p.m. [Appellant’s] girlfriend, Heather Elaine Johnson
       drove him there and dropped him off. [Appellant] was an
       old friend who Micah had not seen in almost nine months.
       Micah invited [Appellant] inside and offered him a glass of
       water, after which they proceeded to Micah’s room. They
       watched television and Micah went to his desk to work. At
       that point, [Appellant] struck Micah in the back of his head
       with a bathroom scale. Micah then fled downstairs but was
       chased by [Appellant].

           [Appellant] brought Micah back upstairs to his room and
       proceeded to stab Micah on the side of the head with a knife
       he brought. Micah was lying face down on the floor and
       [Appellant] had his hands tied behind his back. [Appellant]
       then put a plastic bag over Micah’s head. Micah was unable
       to breathe and bit a []hole in the bag. [Appellant] then
       slipped a tie from a bathrobe around Micah’s neck,
       beginning to strangle him. [Appellant] had his knees on
       Micah’s back as he pulled the bathrobe tie, asking where
       Micah’s valuables were. Micah told [Appellant] the location
       of his keys and wallet, at which time [Appellant] took Micah
       to the living room downstairs. It was at this point that
       Micah’s mother, Mary McGowan, came home.

          Mary arrived home at approximately 4:00 p.m.          She
       had been visiting her husband at Hershey Medical Center.
       As Mary came through the back door, she heard Micah yell
       “Mom, run!” [Appellant] then ran at her with a knife, telling
       her to shut up or he would hurt her. [Appellant] had Mary
       get on the floor in the kitchen face down. Mary asked
       [Appellant] what he was doing, to which he replied that he
       owed some people money. Mary indicated that she had

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          money in her purse. [Appellant] removed $500[.00] cash
          and credit cards from her wallet and her purse. Mary asked
          if [Appellant] was going to kill her and her son, to which
          [Appellant] replied in the negative but he would not allow
          her to check on Micah. Then [Appellant] tied Mary’s hands
          behind her back. Because Mary’s shoulder hurt, he then
          tied her hands in the front and had her sit down in front of
          the [refrigerator]. [Appellant] also asked if there were any
          guns in the house. Mary indicated that they had “long
          guns,” but lied and said they had no pistols. [Appellant] did
          not take any guns.

              [Appellant] told Mary to tell the police that they had
          been robbed by black men. [Appellant] told her that he
          owed $50,000.00 to some “bad men,” and if the police got
          involved the men would harm him and her family. It was at
          that point that Mary asked again to help her son, Micah.
          She told [Appellant] that he needed to go to a hospital.
          [Appellant] indicated that he would take him to
          McConnellsburg, but Mary stated he should go to
          Chambersburg. [Appellant] untied Mary and allowed her to
          pull the car around the back of the house. He then untied
          Micah and helped Mary get him into the car. [Appellant] got
          into another car owned by Mary and followed her as she left
          with Micah [to] drive him to Chambersburg Hospital.
          [Appellant] was arrested and charged[, inter alia,] with the
          above listed offenses.

Trial Court Opinion, 4/24/2014, at 4-5.

      On May 10, 2012, a jury convicted Appellant of the aforementioned

crimes.     On July 11, 2012, the trial court sentenced Appellant to an

aggregate term of incarceration of 37½ to 84 years of incarceration.

Appellant    filed   a   post-sentence   motion   on   July   23,   2012,   seeking

reconsideration of his sentence. By order entered on August 30, 2012, the

trial court denied relief. Appellant did not appeal. On January, 16, 2014,

the trial court reinstated Appellant’s direct appeal rights nunc pro tunc, after

Appellant filed a pro se petition pursuant to the Post Conviction Relief Act

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(PCRA), 42 Pa.C.S.A. §§ 9541-9546, and appointed counsel filed an

amended PCRA petition. This timely appeal followed.2

       On appeal, Appellant presents one issue for our review:

         Whether the trial court erred as a matter of law by refusing
         to merge four convictions of kidnapping into two sentences
         when there were only two victims and all of the convictions
         arise from a single criminal act?

Appellant’s Brief at 4.

       Appellant argues that the trial court erred as a matter of law by not

merging his four kidnapping convictions into two sentences, one sentence for

each victim. Id. at 7-9. More specifically, in sum, Appellant contends:

             [Appellant] was convicted of kidnapping both victims
         under 42 Pa.C.S. § 2901(a)(2) and § 2901(a)(3).
         Kidnapping, under 18 Pa.C.S. § 2901, requires a person to
         ‘unlawfully remove[] another a substantial distance under
         the circumstances from the place where he is found, or if he
         unlawfully confines another for a substantial period in a
         place of isolation, with any of the following intent: […] (2)
         to facilitate commission of any felony or flight thereafter;
         (3) to inflict bodily injury on or terrorize the victim or
         another.’

             While [Appellant] may have had differing intentions from
         kidnapping the victims, it is clear that there was only one
         occurrence of kidnapping of each respective victim. There
         were not separate incidences of kidnapping for differing
         purposes, but one incident of kidnapping each victim while
____________________________________________


2
   Appellant filed a notice of appeal on February 12, 2014. The same day,
the trial court ordered Appellant to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant complied
timely. The trial court issued an opinion pursuant to Pa.R.A.P. 1925(a) on
April 24, 2014.



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        there may have been different purposes for perpetrating the
        kidnapping. While it is clear that the jury found [Appellant]
        had the intent to confine the McGowans for the purposes of
        facilitating the commission of a felony, and to inflict bodily
        injury or terrorize, it was one crime committed against each
        respective victim.

            This is a case of alternative theories of criminal
        culpability, for the same crime, in which the jury found
        [Appellant] to be guilty of both states of mind, but it was
        clearly only one volitional act. Essentially, the crime of
        kidnapping has two elements, 1) the act of unlawfully
        confining or moving the victim, and 2) intent to do so for
        one of four delineated unlawful purposes. Following the
        logic of the trial court’s interpretation of [42 Pa.C.S.A.]
        § 9765, [Appellant’s] actions are the equivalent as if he
        would have kidnapped the McGowan[s] for one purpose, left
        the residence, then returned at a different time and
        kidnapped them again for another purpose delineated under
        § 2901. That is clearly not what occurred in this case, and
        it would be inherently unfair to punish [Appellant] as if it
        were the case.

            For that reason, the separate convictions under
        § 2901(2) and (3) should have been merged for each
        respective victim, as they were differing theories of intent
        for the same volitional act, and thus constituted only one
        crime, not two distinct criminal actions arising out of
        separate sets [of] factual circumstances.

Id. at 8-9.

      “A claim that crimes should have merged for sentencing purposes

raises a challenge to the legality of the sentence. Therefore, our standard of

review is de novo and our scope of review is plenary.” Commonwealth v.

Nero, 58 A.3d 802, 806 (Pa. Super. 2012) (citation omitted).        “An illegal

sentence must be vacated. In evaluating a trial court's application of a

statute, our standard of review is plenary and is limited to determining

whether the trial court committed an error of law.” Id. (citation omitted).

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     Merger of sentences is governed by 42 Pa.C.S.A. § 9765, which

provides:

        § 9765. Merger of sentences

        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.

     Our Supreme Court determined that

        the plain language of Section 9765 reveals a legislative
        intent to preclude the courts of this Commonwealth from
        merging sentences for two offenses that are based on a
        single criminal act unless all of the statutory elements of
        one of the offenses are included in the statutory elements of
        the other. Our Supreme Court held that when each offense
        contains an element the other does not, merger is
        inappropriate.

Nero, 58 A.3d at 806 (citations, quotations, and brackets omitted).

     The jury convicted Appellant of two kidnapping charges with respect to

each victim. The legislature has defined those two crimes as follows:

        [A] person is guilty of kidnapping if he unlawfully removes
        another a substantial distance under the circumstances
        from the place where he is found, or if he unlawfully
        confines another for a substantial period in a place of
        isolation, with any of the following intentions:

                           *        *           *

            (2) To facilitate commission of any felony or flight
            thereafter.



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             (3) To inflict bodily injury on or to terrorize the victim or
             another.


                             *          *           *

18 Pa.C.S.A. § 2901(a)(2) and (3).

     Initially, we note that, to the extent that Appellant argues he

committed “one crime […] against each respective victim[,]” the jury found

otherwise.   We also note that Appellant did not raise a challenge to the

sufficiency of the evidence in his Pa.R.A.P. 1925(b) concise statement.

Hence, Appellant has waived any challenge to the sufficiency of the evidence

introduced    in   support   of   his   four   kidnapping    convictions.    See

Commonwealth v. Berry, 877 A.2d 479, 485 (Pa. Super. 2005) (holding

issues which are not raised in a concise statement of matters complained of

on appeal under Pa.R.A.P. 1925 are waived on appeal).

     Regarding the merger of sentences, in this case, there is no dispute

that the crimes arose from a single criminal act. However, upon review of

Subsections (a)(2) and (a)(3) of the kidnapping statute, each offense

contains an element the other does not. The criminal intent for kidnapping

under Subsection (a)(2) is to “facilitate a felony or flight thereafter.”

Whereas, the criminal intent for kidnapping under Subsection (a)(3) is to

“inflict bodily harm or to terrorize the victim.”       Both Subsections have a

statutory element that the other does not.              Moreover, this Court has

previously refused to merge sentences for two crimes defined under two

different sections of the aggravated assault statute. See Commonwealth


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v. Rhoades, 8 A.3d 912, 918 (Pa. Super. 2010).          Hence, we discern no

error of law in denying Appellant relief on his merger claim.

      Judgment of sentence affirmed.




 Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/7/2015




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