J-A24007-19

                                   2020 PA Super 37


    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    MARK EDWARDS                               :
                                               :
                       Appellant               :   No. 3693 EDA 2017

          Appeal from the Judgment of Sentence Entered July 25, 2017
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                        No(s): CP-51-CR-0011484-2015


BEFORE:       BENDER, P.J.E., DUBOW, J., and COLINS, J.*

OPINION BY BENDER, P.J.E.:                          FILED FEBRUARY 12, 2020

        Appellant, Mark Edwards, appeals from the judgment of sentence of an

aggregate term of 10-25 years’ imprisonment, imposed after he was convicted

of aggravated assault, 18 Pa.C.S. § 2702(a)(1), and related offenses. For the

reasons that follow, we reverse four of his convictions, vacate the judgment

of sentence, and remand.

        The trial court summarized the relevant factual and procedural history

as follows:
        [O]n Saturday, August 15, 2015, just before 7:00 p.m., a tan
        2004 Ford Mercury Grand Marquis occupied by a single male driver
        travelled at a high rate of speed and struck a moving vehicle
        occupied by two adults and one child in a residential neighborhood
        near the corners of Large Street and Magee Avenue in Northeast
        Philadelphia. Eyewitnesses observed that following the striking of
        the first occupied vehicle, the vehicle, … [the] Marquis, then
        continued to travel erratically at a high rate of speed and without
        stopping, turned from Magee Avenue and onto the 6600 block of
____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
J-A24007-19


     Sylvester Street[,] where it collided with multiple parked vehicles
     along the way.

     After hitting numerous parked cars, witnesses saw this same
     vehicle strike a six[-]year[-]old child who had been riding her bike
     and playing on the sidewalk near her home located within the
     same block. The force of the collision sent this slight and small
     child flying into the air and landing head first in a neighbor’s side
     garden.       Appellant … was then observed unsuccessfully
     attempting escape by driving the vehicle into another parked
     car[,] which blocked his exit. Appellant was seen immediately
     thereafter leaping from the driver’s side of the car and running on
     foot away from the path of destruction he caused.

     The injured child’s mother, Nuris Quezada, reported that just
     before the crash she heard the screeching of an approaching
     vehicle as it swerved and sped down the 6600 block of Sylvester
     Street where she was standing in front of her home. As she saw
     the vehicle striking numerous parked cars, she ran immediately
     toward her daughter in an attempt to pull her from the sidewalk
     to safety. To her horror, she could not save her daughter due to
     the high rate of speed of the striking vehicle. She thought her
     daughter had died because she was found unconscious in the
     neighbor’s yard. As Nuris Quezada ran to her daughter[,] she saw
     the back of the male driver of the striking vehicle as he exited the
     driver[’s] side of the otherwise unoccupied vehicle and [ran] away
     from his misdeeds.

     Najah Imani Caldwell testified that she had fully viewed the tan
     Marquis speed down the street, crash into a number of parked
     cars, hit a child[,] and then hit another parked car. She saw
     Appellant alight from the driver’s side of the otherwise unoccupied
     Marquis and flee on foot. Her view was unobstructed, and … close
     to the collision scene from the front steps of her residence located
     within the 6600 block of Sylvester Street. She was a teenager at
     the time who bravely came forward, provided a detailed
     description of the offender[,] and rode around the area with
     responding police officers to search for the man she saw operating
     the striking vehicle. She later unequivocally identified Appellant
     as the perpetrator. She consistently and positively identified
     Appellant at the preliminary hearing and at trial as the operator
     of the striking vehicle and as the man who she had seen jump out




                                     -2-
J-A24007-19


       from the driver’s side of the Marquis and run away from the crash
       site.[1]

       After several preliminary hearings, arraignment, and scheduling
       conferences, the case against [Appellant] proceeded to trial
       without a jury on April 21, 2017….

       Over the course of the trial, the Commonwealth introduced
       compelling and varied forms of direct and circumstantial evidence
       from uniformed police officers, assigned investigators[,] the child
       victim, her mother[,] and other eyewitnesses to Appellant’s
       actions. At trial, all of the medical records reflecting treatment of
       the child victim, who sustained traumatic injury to her head and
       a multi-fractured arm, as well as the damage reports concerning
       all involved vehicles[,] had been entered into the record by way
       of stipulation and stated agreement between the parties. At trial,
       the victim’s mother reported that he[r] daughter’s broken arm had
       never fully recovered despite medical treatment. Mercifully, this
       child reported that she has little memory of what happened to her.
       This [c]ourt, as the finder of fact, entered verdicts of guilt for all
       offenses charged after reviewing all submitted physical evidence
       and listening to the testimony and arguments presented.

       This [c]ourt found Appellant … guilty of the following offenses in
       order of gradation: one count of Aggravated Assault under 18
       [Pa.C.S.] § 2702[(a)(1)], graded as a Felony of the First Degree;
       one count of Aggravated Assault-By Vehicle under 75 [Pa.C.S.] §
       3732.1[(a)], graded as a Felony of the Third Degree; one count
       of Accident[s] Involving Death or Personal Injury under 75
       [Pa.C.S.] § 3742[(a)], graded as a Felony of the Third Degree;
       two counts of Criminal Mischief-Tampering With Property under
       18 [Pa.C.S.] § 3304[(a)(2)], graded as Felony of the Third
       Degree; two counts of Criminal Mischief-Tampering With Property
       under 18 [Pa.C.S.] § 3304[(a)(2)], graded as Misdemeanors of
       the Second Degree; one count of Simple Assault-Attempt or Cause
       Bodily Injury to Child, under 18 [Pa.C.S.] § 2701[(a)(1)], graded
       as a Misdemeanor [of the] First Degree; one count of Recklessly
       Endangering Another Person [(REAP)] under 18 [Pa.C.S.] §
____________________________________________


1 As discussed further infra, Appellant contests the accuracy of the trial court’s
description of Ms. Caldwell’s testimony. Specifically, he claims that Ms.
Caldwell did not identify him at the preliminary hearing. See Appellant’s Brief
at 13. Further, he asserts that the record contradicts the trial court’s finding
that Ms. Caldwell had an unobstructed view. Id. at 14 n.5.

                                           -3-
J-A24007-19


     2705[,] graded as a Misdemeanor [of the] Second Degree; one
     count of Accident[s] Involving Damage Attended Vehicle/Property
     under 75 [Pa.C.S.] § 3743[(a)], graded as a Misdemeanor [of the]
     Third Degree; and Possessi[ng] Instrument[s] of Crime under 18
     [Pa.C.S.] § 907[(a)], graded as a Misdemeanor of the First
     Degree.

     As the presiding trial judge, this [c]ourt directed the completion
     of Presentence Evaluations and Mental Health Evaluations by the
     First Judicial District Probation and Parole and Mental Health
     Departments, and scheduled the sentencing hearing in due
     course. After conducting a thorough review of all completed
     presentence and mental health evaluations, victim impact
     statements, and correspondence submitted on behalf of
     Appellant[,] and considering all relevant data and live testimony
     submitted at a full and fair sentencing hearing, this [c]ourt
     imposed the following sentences:

        Count 1: 18 [Pa.C.S.] § 3304[(a)(2)]-Criminal Mischief-
        Tampering With Property, M2: Minimum six (6) months[’]
        supervised term of confinement to maximum twelve (12)
        months[’] confinement, to run consecutively to Count 9;

        Count 2: 75 [Pa.C.S.] § 3742[(a)]-Accident[s] Involving
        Death or Personal Injury, F3: A determination of guilty with
        no further penalty;

        Count 3: 75 [Pa.C.S.] § 3732.1[(a)]-Aggravated Assault by
        Vehicle, F3: A determination of guilty with no further
        penalty;

        Count 4: 18 [Pa.C.S.] § 2705-[REAP], M2: Minimum six (6)
        months[’] supervised term of confinement to maximum
        twelve (12) months[’] confinement, to run consecutively to
        Count 1;

        Count 5: [75 Pa.C.S. § 3743(a)]-Accident[s] Involving
        Damage Attended Vehicle/Property, M3: A determination of
        guilty with no further penalty[;]

        Count 6: 18 [Pa.C.S.] § 3304[(a)(2)]-Criminal Mischief-
        Tampering With Property, M2: Minimum six (6) months[’]
        supervised term of confinement to maximum twelve (12)
        months[’] confinement, to run consecutively to Count 4;




                                   -4-
J-A24007-19


          Count 7: 18 [Pa.C.S.] § 3304[(a)(2)]-Criminal Mischief-
          Tampering With Property, F3: Minimum six (6) months[’]
          supervised term of confinement to maximum twelve (12)
          months[’] confinement, to run consecutively to Count 6;

          Count 8: 18 [Pa.C.S.] § 3304[(a)(2)]-Criminal Mischief-
          Tampering With Property, F3: Minimum six (6) months[’]
          supervised term of confinement to maximum twelve (12)
          months[’] confinement, to run consecutively to Count 7;

          Count 9: 18 [Pa.C.S.] § 2702[(a)(1)]-Aggravated Assault,
          F1 (Cause Serious Bodily Injury): Minimum seven (7) years
          and six (6) months of state supervised term of confinement
          to maximum twenty (20) years[’] confinement;

          Count 10: Simple Assault[, 18 Pa.C.S. § 2701(a)(1)], M2-A
          determination of guilty with no further penalty[.]

       The resulting aggregate sentence was a minimum period of ten
       (10) years to a maximum period of twenty-five (25) years of
       incarceration, with credit accorded for custodial time served.
       Appellant was ordered to have no contact with the Commonwealth
       witnesses.    Rehabilitative conditions were imposed including
       participation in anger management classes, vocational training,
       employment, dual diagnosis evaluation and treatment, and drug
       and alcohol screening. Submission to random drug and alcohol
       testing and home visits were also imposed along with payment of
       regular fines and costs. Restitution was ordered in the amount of
       $3,724.00[,] based upon the reported aggregate insurance
       deductible payments submitted by each automobile owner. No
       restitution had been requested on behalf of the child that had been
       injured. [Appellant] was deemed “RRRI”[2] and “Boot Camp”
       ineligible.

Trial Court Opinion (TCO), 10/16/2018, at 2-6.

       Appellant filed a timely post-sentence motion, which was denied by the

trial court on October 18, 2017. On November 17, 2017, Appellant filed a

timely notice of appeal. Subsequently, on January 22, 2018, the trial court

____________________________________________


2 “RRRI” is an abbreviation for the Recidivism Risk Reduction Incentive
program, 61 Pa.C.S. §§ 4501-4512.

                                           -5-
J-A24007-19



ordered Appellant to file a Pa.R.A.P. 1925(b) concise statement of errors

complained of on appeal “within [21] days from the entry of this [o]rder, or

[21] days after the [n]otes of [t]estimony are available, whichever is later.”

Order, 1/22/2018. On February 12, 2018, Appellant requested an extension

to file his statement until March 2, 2018, which the trial court granted. On

March 1, 2018, Appellant filed a preliminary Rule 1925(b) statement, as well

as a request for permission to file a supplemental Rule 1925(b) statement

after he received all of the notes of testimony.3 Although Appellant claims

that the trial court granted him permission to do so, see Appellant’s Brief at

5-6, the docket does not demonstrate that it ruled on this request.

Nevertheless, Appellant filed a supplemental Rule 1925(b) statement on July

2, 2018.4 The trial court addressed the issues raised in both of Appellant’s

concise statements in its Rule 1925(a) opinion.


____________________________________________


3  Appellant did not attach a transcript order form to this request, and did not
file the request at least five days before the statement was due. See Pa.R.A.P.
1925(b)(2)(ii) (“If a party has ordered but not received a transcript necessary
to develop the Statement, that party may request an extension of the deadline
to file the Statement until 21 days following the date of entry on the docket
of the transcript in accordance with Pa.R.A.P. 1922(b). The party must attach
the transcript purchase order to the motion for the extension. If the motion
is filed at least five days before the Statement is due but the trial court does
not rule on the motion prior to the original due date, the motion will be deemed
to have been granted.”) (emphasis added); see also Pa.R.A.P. 1925(b)(2)(i)
(“Upon application of the appellant and for good cause shown, the judge may
enlarge the time period initially specified or permit an amended or
supplemental Statement to be filed.”) (emphasis added).

4The record is also not clear as to when the notes of testimony required by
Appellant became available.

                                           -6-
J-A24007-19



       Presently, Appellant raises the following issues on appeal:
       1. Was not the evidence insufficient to convict of all charges, as
       the sole evidence linking [A]ppellant to the crimes was an
       unreliable identification by one witness who had a poor
       opportunity to observe the perpetrator, gave a barebones
       description to police, and identified [A]ppellant based only on his
       clothing and the fact that he had brown skin?

       2. Was not the evidence insufficient to convict [A]ppellant of four
       counts of criminal mischief under 18 Pa.C.S.[] § 3304(a)(2)
       because damaging a car as a result of a car accident does not
       constitute “tampering”?

       3. Was not the evidence insufficient to convict [A]ppellant of two
       counts of criminal mischief (F3) and two counts of criminal
       mischief (M2) where the Commonwealth failed to prove the
       required amount of pecuniary loss on each count?

       4. Was not the evidence insufficient to convict [A]ppellant of two
       counts of criminal mischief (F3) and two counts of criminal
       mischief (M2) where he was not proven to have the requisite
       intent to cause pecuniary loss?

       5. Should not the sentences for aggravated assault and [REAP]
       have merged where 1) the two offenses meet the elements test
       set out in 42 Pa.C.S.[] § 9756; and 2) assuming arguendo the
       elements test was not met, Section 9756 is unconstitutional on its
       face and as applied, as it conflicts with the Pennsylvania judicial
       test for merger and violates separation of powers and double
       jeopardy rights under the Pennsylvania Constitution?

Appellant’s Brief at 3-4.

       At the outset, we need not consider whether Appellant has preserved

for our review the issues raised in his second, supplemental Rule 1925(b)

statement, as Appellant raised all of the issues we address infra in his initial

Rule 1925(b) statement.5

____________________________________________


5 We do not address certain issues raised in Appellant’s statement of questions
involved because our disposition herein has rendered them moot.

                                           -7-
J-A24007-19



                                    Issue 1

      In Appellant’s first issue, he argues that “[t]he evidence was insufficient

to prove [him] guilty of any of the charged offenses, as the sole evidence

linking him to the crimes was one identifying witness who had a minimal

opportunity to observe the perpetrator and who based her identification of

Appellant on his baggy pants and ‘brown’ skin.”        Id. at 11 (unnecessary

capitalization omitted). Appellant explains that the witness — Najah Imani

Caldwell — had “only a fleeting view of the perpetrator” and provided a “vague

description” to police that the perpetrator was “a skinny black male in his 20s,

wearing a white T-shirt.” Id. at 15. He adds that “[t]he weak evidentiary

value of Ms. Caldwell’s identification is due not only to the vague and

commonplace description she provided, but also to the unduly suggestive

circumstances surrounding the identification.” Id. at 16. He elaborates that,

“[w]hen [Ms. Caldwell] was eventually transported to the location where

[Appellant] was being detained, he was standing outside of a police car, with

two officers next to him. It was ‘close to nighttime’ and from the inside of the

sergeant’s car, which was 15 to 20 feet from [Appellant], Ms. Caldwell

identified him as the perpetrator.” Id. at 16-17 (citations omitted). Appellant

asserts that Ms. Caldwell was unable to identify him at the preliminary hearing

and, “on cross-examination [at trial], she conceded that she was told prior to

trial that the person she identified on the night in question would be present




                                      -8-
J-A24007-19



in the courtroom.”       Id. at 17.6      Moreover, Appellant contends that “the

Commonwealth introduced no evidence that corroborated Ms. Caldwell’s

identification of [Appellant] as the perpetrator.        There was no physical

evidence, no other witness[] testimony, and no incriminating statements or

conduct by [Appellant] linking him in any way to the incident.” Id. Thus,

Appellant claims that, “[g]iven Ms. Caldwell’s minimal opportunity to observe,

the extremely vague description she provided, her stated basis for identifying

[Appellant] (ubiquitous baggy pants and brown skin), the suggestivity of her

post-incident identifications, her inability to make an identification at the

preliminary hearing, and the lack of any corroborating evidence, the proof that

[Appellant] was indeed the perpetrator of the charged crimes was so weak

that any verdict of guilt thereon must [be] the product of speculation or

conjecture.” Id. at 18 (citations omitted).

       We apply the following standard of review to sufficiency-of-the-evidence

claims:
      The standard we apply … is whether viewing all the evidence
      admitted at trial in the light most favorable to the verdict winner,
      there is sufficient evidence to enable the fact-finder to find every
      element of the crime beyond a reasonable doubt. In applying [the
      above] test, we may not weigh the evidence and substitute our
      judgment for the fact-finder. In addition, we note that the facts
      and circumstances established by the Commonwealth need not

____________________________________________


6Our review of the preliminary hearing transcript confirms that Ms. Caldwell
was not able to identify Appellant at that time. N.T. Hearing, 11/13/2015, at
29. See also Commonwealth’s Brief at 4 (acknowledging that “[a]t the
preliminary hearing, which took place about three months after the collision,
[Ms. Caldwell] stated that she was unable to recognize the driver”) (citation
omitted).

                                           -9-
J-A24007-19


      preclude every possibility of innocence. Any doubts regarding a
      defendant’s guilt may be resolved by the fact-finder unless the
      evidence is so weak and inconclusive that as a matter of law no
      probability of fact may be drawn from the combined
      circumstances. The Commonwealth may sustain its burden of
      proving every element of the crime beyond a reasonable doubt by
      means of wholly circumstantial evidence. Moreover, in applying
      the above test, the entire record must be evaluated and all
      evidence actually received must be considered. Finally, the [trier]
      of fact while passing upon the credibility of witnesses and the
      weight of the evidence produced, is free to believe all, part or none
      of the evidence.

Commonwealth v. Orr, 38 A.3d 868, 872-73 (Pa. Super. 2011) (citations

and emphasis omitted).

      Additionally, we acknowledge:
      Evidence of identification need not be positive and certain to
      sustain a conviction. Although common items of clothing and
      general physical characteristics are usually insufficient to support
      a conviction, such evidence can be used as other circumstances
      to establish the identity of a perpetrator.             Out-of-court
      identifications are relevant to our review of sufficiency of the
      evidence claims, particularly when they are given without
      hesitation shortly after the crime while memories were fresh.
      Given additional evidentiary circumstances, any indefiniteness
      and uncertainty in the identification testimony goes to its weight.

Commonwealth v. Kinney, 157 A.3d 968, 971 (Pa. Super. 2017) (citations

omitted). We note that “[a] challenge to the weight of the evidence is distinct

from a challenge to the sufficiency of the evidence in that the former concedes

that the Commonwealth has produced sufficient evidence of each element of

the crime, but questions which evidence is to be believed.”         Id. (citation

omitted; brackets in original).

      Here, Ms. Caldwell identified Appellant at trial as the man who, after

striking the little girl, got out of the car and started running. See N.T. Trial,


                                     - 10 -
J-A24007-19



4/21/2017, at 52-53.7 At the time of the incident, she explained that she was

“sitting on [her] front step across the street” from where the girl was hit. Id.

at 54. She said that was able to see Appellant get out of the vehicle and start

running, testifying that he looked to be skinny, in his mid-20s, and African

American.     Id. at 57-58.      Subsequently, police drove Ms. Caldwell to two

different locations to view suspects. Id. at 59-60. At the first location, she

stated that the man police showed her was not the person that struck the little

girl because “he was heavyset.             The man [who struck the girl] wasn’t

heavyset.” Id. at 60. Ms. Caldwell then testified:
        [The Commonwealth:] Now, the second time, are you also asked,
        is this the man that you saw strike the little girl?

        [Ms. Caldwell:] Yes.

        [The Commonwealth:] And what do you say then?

        [Ms. Caldwell:] Yes.

        [The Commonwealth:] Now, at that point in time[,] why are you
        saying yes?

        [Ms. Caldwell:] He had on the same clothing. It’s just happened
        not too long ago, so I remember his face.

        [The Commonwealth:] You remember his face --

        [Ms. Caldwell:] And the clothes he had on.

Id.

        On cross-examination, Ms. Caldwell conveyed that it was Appellant’s

“clothes and his skin complexion” that helped her identify him, and recalled

that he was “skinny” and had “a white T-shirt on with baggy jeans, baggy
____________________________________________


7   We note that the trial transcript bears the incorrect date (April 2, 2017).

                                          - 11 -
J-A24007-19



pants.” Id. at 62. When police took her to the second location to see if she

could identify the perpetrator, she said the police did not tell her why they

were taking her to that location. Id. at 63. Ms. Caldwell also testified that

she identified Appellant at trial as the perpetrator because she recognized him,

and not because somebody told her that the person that was arrested would

be in the courtroom that day. Id. at 65. However, she agreed with Appellant’s

attorney that she “basically” had seen the back of the person who was running

up the street. Id. at 75; but see id. at 81 (stating that she saw the “side of

his face”).

      Further, at trial, Sergeant Melissa Panebianco testified that she asked

Ms. Caldwell shortly after the incident whether she would be able to identify

the driver of the vehicle, and Ms. Caldwell answered yes. Id. at 106. Sergeant

Panebianco explained that “normally when I … drive a witness to a location, I

just tell them just to remember what they saw at the scene and to do the best

they can. And if they know for a fact, a hundred percent[,] that that is the

person, they have to say so. If they are unsure, then they have to say that,

as well.”     Id. at 109.   When Ms. Caldwell identified Appellant, Sergeant

Panebianco testified that Ms. Caldwell did not indicate that she was unsure or

hesitate at all. Id.

      Officer Gene Crozier also testified that he had received information that

had led him to investigate Appellant. Specifically, he stated:
      [The Commonwealth:] And what did you do, when you became
      involved in this investigation?



                                     - 12 -
J-A24007-19


     [Officer Crozier:] Other officers responded to the scene, at which
     time they gave out the vehicle information, which was left at the
     scene of the accident…. [I t]ook that information and ran the tag
     through our system and it came back to an address of 6050
     Lawndale Avenue and owner Naja Jones.

     I went to that location and asked if she knew who was using her
     vehicle and she stated that she had left that vehicle in the position
     [sic] of a Shaquan Ellis. She gave me an address of 6610 Akron
     Street. From there[,] I went to Akron Street and came in contact
     with Shaquan Ellis who said that he –

        [Appellant’s attorney]: Objection.

        [The court]: Sustained.

     [The Commonwealth:] As a result of going to Akron Street, what
     did you do?

     [Officer Crozier:] From Akron Street, based on information
     received at Akron Street, I went to the 1200 block of Robbins
     Avenue.

     [The Commonwealth:] And you went to the 1200 block of Robbins
     Avenue. And what did you do there?

     [Officer Crozier:] I double-parked my car and was met by
     [Appellant], who walked out to our vehicle from the house on that
     block.

                                      …

     [The Commonwealth:] And were you looking for [Appellant] at
     that point in time?

     [Officer Crozier:] Yes.

     [The Commonwealth:] He just walks out of his house and
     approaches the police?

     [Officer Crozier:] Yes.

     [The Commonwealth:] [W]hat do you do at that point in time? …

     [Officer Crozier:] We had already at that point had a vehicle.
     Sergeant Panebianco was bringing over a witness from the original
     location, leaving the scene of the accident, who came over and
     positively ID’d [Appellant] at the location as the driver.


                                    - 13 -
J-A24007-19



Id. at 115-17.

       Based on the foregoing, we deem the identification evidence sufficient

to sustain Appellant’s convictions in this case. In addition to Officer Crozier

receiving information linking Appellant to the offense, Ms. Caldwell confidently

identified Appellant shortly after the incident occurred and again at trial.

Although she did not recognize Appellant at the preliminary hearing and the

circumstances surrounding her initial identification are admittedly not ideal,

this Court has discerned that “any uncertainty in an eyewitness’s identification

of a defendant is a question of the weight of the evidence, not its sufficiency.”

Commonwealth v. Cain, 906 A.2d 1242, 1245 (Pa. Super. 2006) (deeming

identification evidence sufficient, even though the witnesses expressed

uncertainty in their identification at trial, where they had previously identified

the appellant in a photo array and at a preliminary hearing); see also Kinney,

157 A.3d at 971-72 (“[The a]ppellant argues that the victims provided

‘unconvincing’ and ‘vague’ identifications and ‘inconsistencies regarding the

Commonwealth’s physical evidence.’ Such claims are directed entirely to the

credibility of the victim’s testimony, and, as such, challenge the weight, not

the sufficiency, of the evidence.”) (citations omitted).8     Appellant has not
____________________________________________


8 Appellant relies on the cases of Commonwealth v. Crews, 260 A.2d 771
(Pa. 1970), and Commonwealth v. Grahame, 482 A.2d 255 (Pa. Super.
1984), to support the proposition that “[w]here identification evidence is
shown to be so inherently unreliable as to make a verdict based upon it one
of conjecture and surmise, it will be found insufficient as a matter of law.”
Appellant’s Brief at 11; see also id. at 18-19. As the Commonwealth



                                          - 14 -
J-A24007-19



challenged the weight of the evidence on appeal. Accordingly, no relief is due

on this basis.

                                               Issue 2

       In Appellant’s second issue, he argues that “the evidence was

insufficient to convict [him] of four counts of criminal mischief under 18

Pa.C.S.[] § 3304(a)(2) because damaging a car as a result of a car accident

does not constitute ‘tampering[.’]”             Appellant’s Brief at 21 (unnecessary

capitalization omitted).      That statute provides, in pertinent part, that “[a]

person is guilty of criminal mischief if he … intentionally or recklessly tampers

with tangible property of another so as to endanger person or property[.]” 18

Pa.C.S. § 3304(a)(2).

       In its opinion, the trial court discerned that “‘tamper’ plainly means to

interfere with something in order to cause damage or make unauthorized

alterations.” TCO at 14. It determined that the evidence was sufficient to


____________________________________________


observes, in Crews, “the eyewitness never identified the defendant as the
perpetrator. Rather, she simply provided a general description of the
perpetrators’ height, complexion, and attire.” Commonwealth’s Brief at 11
n.2. Similarly, in Grahame, the Commonwealth ascertains that “the key
witness was unable to identify the defendant before trial; she stated at the
preliminary hearing that ‘[a]ll blacks look alike’; and at trial she testified that
she didn’t remember the defendant.” Id. at 10 (citations omitted; brackets in
original); see also Grahame, 482 A.2d at 259 (“The appellant … is connected
to the crime by the identification testimony of [the key witness], who later
stated that she did not get a good look at the third man; that she did not know
who the third man was; and that she did not remember if [the appellant] was
one of the robbers.”). In contrast, in the case sub judice, the evidence
supporting Appellant’s identification was much stronger. Thus, Crews and
Grahame are distinguishable.

                                          - 15 -
J-A24007-19



sustain Appellant’s convictions under Section 3304(a)(2) as “Appellant

intentionally and recklessly tampered with or interfered with and caused

significant damage to multiple vehicles as he intentionally and recklessly

operated the Mercury Marquis at a high rate of speed over the span of at least

two disconnected residential city[-]sized blocks without stopping until … [his]

escape was impeded by the last vehicle impacted.” Id.

      On appeal, Appellant contends that, “[p]ursuant to the commonly

understood    meaning   of   the   term   ‘tamper[,’]    principles   of   statutory

construction, and this Court’s precedent, it is clear that recklessly crashing

into another vehicle, even where damage or injury results, does not constitute

‘tampering’ and, thus, does not fall within the intended reach of [Section]

3304(a)(2).” Appellant’s Brief at 9. In particular, he asserts that “Black’s Law

Dictionary defines ‘tamper’ as ‘1. [t]o meddle so as to alter (a thing),

esp[ecially] to make changes that are illegal, corrupting or perverting. 2. To

interfere improperly; to meddle.’” Id. at 22 (citing Black’s Law Dictionary, 8th

Ed. (2004); brackets added by Appellant).               Further, he claims that

“Pennsylvania courts have generally applied [Section] 3304(a)(2) to crimes of

intentional alteration or vandalism, for example, cutting phone lines,

damaging a competitor’s combine by attaching iron pieces to his corn stalks,

or manipulating tools to create a hole in a door lock.” Id. at 23-24 (citations

omitted). He points out that elsewhere in the Crimes Code — namely, in 75

Pa.C.S. § 3808(b) which concerns “Tampering with an ignition interlock

system” — “the legislature used the word ‘tampering’ in a way that is

                                     - 16 -
J-A24007-19



consistent with [its] normal usage, i.e., to denote surreptitious or dishonest

conduct.” Id. at 23.9

        Moreover, Appellant directs our attention to the rest of the criminal

mischief statute, specifically Section 3304(a)(5), which provides that “[a]

person is guilty of criminal mischief if he … intentionally damages real or

personal property of another[.]” 18 Pa.C.S. § 3304(a)(5). He asserts that,

“looking at the [criminal mischief] statute in its entirety, as required by the

principles of statutory construction, makes it particularly clear that the

legislature did not intend for [S]ubsection (a)(2) to encompass cases, like the

instant case, of merely causing damage.” Id. at 25. He elaborates that, “[i]f

that were so, then [S]ubsection (a)(5) would subsume [S]ubsection (a)(2),

because [S]ubsection (a)(5) only requires that property be damaged

knowingly or intentionally.” Id. (citation omitted).




____________________________________________


9   That statute provides, in relevant part:
        The term “tampering,” in addition to any physical act which is
        intended to alter or interfere with the proper functioning of an
        ignition interlock system required by law, shall include attempting
        to circumvent or bypass or circumventing or bypassing an ignition
        interlock system by:
           (1) means of using another individual to provide a breath
           sample; or

           (2) providing a breath sample for the purpose of bypassing
           an ignition interlock system required by law.

75 Pa.C.S. § 3808(b).


                                          - 17 -
J-A24007-19



        Conversely, the Commonwealth attacks Appellant’s argument that

Section 3304(a)(2) requires proof that he committed acts of an intentional,

surreptitious, or dishonest nature, asserting that “the plain language of the

statute     expressly   includes    intentional     and    reckless   conduct.”

Commonwealth’s Brief at 12 (emphasis in original).         The Commonwealth

observes that, “[a]lthough the General Assembly did not define ‘tampers,’ it

modified the word to include an intentional or reckless level of culpability. To

ignore this plain language … and interpret the statute as prohibiting only

intentional acts, would violate settled principles of statutory construction and

render the word ‘reckless’ superfluous.”          Id. at 13.   Accordingly, the

Commonwealth says that “any definition of ‘tampers with’ must be modified

to include both intentional and reckless conduct[,]” and asserts that ‘tamper’

means “to interfere so as to weaken or change for the worse.” Id. at 13, 13

n.3. With respect to Appellant’s argument regarding the meaning of the word

‘tamper’ in the context of tampering with an ignition interlock system under

75 Pa.C.S. § 3808(b), it correctly observes that that provision does not include

the word ‘reckless,’ and argues that “the legislature intended Section

3304(a)(2) of the criminal-mischief statute to proscribe a broader range of

conduct than the intentional and surreptitious behavior described in Section

3808(b) of the Vehicle Code.” Id. at 14.

        Before delving into our analysis of these arguments, we acknowledge

that:




                                     - 18 -
J-A24007-19


     [B]ecause statutory interpretation implicates a question of law,
     our scope of review is plenary and our standard of review is de
     novo.

     When interpreting a statute:

        Our task is guided by the sound and settled principles set
        forth in the Statutory Construction Act, including the
        primary maxim that the object of statutory construction is
        to ascertain and effectuate legislative intent. 1 Pa.C.S. §
        1921(a). In pursuing that end, we are mindful that “[w]hen
        the words of a statute are clear and free from all ambiguity,
        the letter of it is not to be disregarded under the pretext of
        pursuing its spirit.” 1 Pa.C.S. § 1921(b). Indeed, “[a]s a
        general rule, the best indication of legislative intent is the
        plain language of a statute.” In reading the plain language,
        “[w]ords and phrases shall be construed according to rules
        of grammar and according to their common and approved
        usage,” while any words or phrases that have acquired a
        “peculiar and appropriate meaning” must be construed
        according to that meaning.           1 Pa.C.S. [§] 1903(a).
        However, when interpreting non-explicit statutory text,
        legislative intent may be gleaned from a variety of factors,
        including, inter alia: the occasion and necessity for the
        statute; the mischief to be remedied; the object to be
        attained; the consequences of a particular interpretation;
        and the contemporaneous legislative history. 1 Pa.C.S. §
        1921(c). Moreover, while statutes generally should be
        construed liberally, penal statutes are always to be
        construed strictly, 1 Pa.C.S. § 1928(b)(1), and any
        ambiguity in a penal statute should be interpreted in favor
        of the defendant.

Commonwealth v. Hanna, 124 A.3d 757, 759-60 (Pa. Super. 2015) (some

citations and quotation marks omitted).

     After careful review, Appellant has persuaded us that damaging a car as

a result of a collision does not constitute ‘tampering’ under Section

3304(a)(2).   Looking at the common and approved usage of the word

‘tamper,’ and keeping in mind that penal statutes are always to be construed



                                    - 19 -
J-A24007-19



strictly, see Hanna, supra, we deem ‘tamper’ to mean more than merely

damaging; instead, it signifies interfering with, meddling with, or altering

something with the aim of changing it.        Though Appellant had at least a

reckless state of mind and certainly endangered people and property through

his behavior, his act of colliding with and damaging cars while speeding

through a neighborhood is not ‘tampering.’ He did not interfere, meddle with,

or alter the cars in order to change them; he crashed into them as he sped

away.

        We also find convincing Appellant’s argument that the legislature

intended for ‘tamper’ and ‘damage’ to have different meanings.           Section

3304(a)(5) penalizes someone who “intentionally damages real or personal

property of another[,]” while the at-issue Section 3304(a)(2) penalizes

someone who “intentionally or recklessly tampers with tangible property of

another so as to endanger person or property[.]” 18 Pa.C.S. §§ 3304(a)(2),

(a)(5) (emphasis added). The legislature’s use of these terms indicates that

it intended to define them differently. If not, Section 3304(a)(2) would appear

to subsume the offense expressed in Section 3304(a)(5). See 1 Pa.C.S. §

1921(a) (“Every statute shall be construed, if possible, to give effect to all of

its provisions.”).

        In addition, we consider persuasive the recent, unpublished, non-

precedential memorandum decision, Commonwealth v. Sewell, 2019 WL




                                     - 20 -
J-A24007-19



7290507 (Pa. Super. filed Dec. 30, 2019).10 In that case, Sewell was found

guilty of, inter alia, criminal mischief under Section 3304(a)(2), after he

reversed his vehicle and slammed into the front of a police car following the

police’s discovery of a loaded handgun in his glove compartment, which he

was carrying without a license. Id. at *1-2. Sewell challenged the sufficiency

of the evidence supporting his conviction under Section 3304(a)(2), and this

Court reversed, explaining:
       [T]he trial court found the following relevant facts supported
       Sewell’s criminal mischief conviction: “[Sewell] reversed his car
       and slammed [it] into the front of the officers’ squad car. The
       squad car was pushed back several feet, narrowly missing
       [Officer] McPoyle as he moved behind [Sewell’s] car to reposition
       himself next to [Officer] Fritz.”

       Sewell claims that in order to be guilty of criminal mischief under
       Section 3304(a)(2), the Commonwealth must prove that the
       defendant “meddle[d] with or ma[d]e changes to tangible
       property.” We agree. Here, Sewell did not tamper with the
       officers’ police cruiser, or any tangible property for that matter;
       rather, he intentionally backed up and crashed into the vehicle,
       causing it to sustain body damage. Cf. Commonwealth v.
       Herman, 924 A.2d 1231 (Pa. Super. 2007) (where defendant cut
       telephone lines to grocery store, evidence was sufficient to sustain
       conviction under Section 3304(a)(2)); Commonwealth v.
       Zambelli, 695 A.2d 848 (Pa. Super. 1997) (sufficient evidence to
       prove criminal mischief under Section 3304(a)(2) where
       defendant scratched side of parked van with object held between
       two fingers); Commonwealth v. Miller, 339 A.2d 573 (Pa.
       Super. 1975) (Section 3340(a)(2) conviction affirmed where
       defendant cut legs off of base of fire tower causing tower to
       collapse onto power line and interrupt electrical service to
       community). As Sewell correctly notes, his action would be
       properly charged as a Section 3304(a)(5) offense where one
____________________________________________


10 See Pa.R.A.P. 126(b) (providing that an “unpublished non-precedential
memorandum decision of the Superior Court filed after May 1, 2019” may be
cited for its “persuasive value”).

                                          - 21 -
J-A24007-19


       “intentionally damages real or personal property of another.”
       See 18 Pa.C.S.[] § 3304(a)(5) (emphasis added); see also 1
       Pa.C.S.[] § 1921(a) (“Every statute shall be construed, if possible,
       to give effect to all its provisions.”). Because Sewell did not
       “tamper” with another’s tangible property, we conclude that the
       evidence was insufficient to enable the trial judge, as fact finder,
       to find that all of the elements of criminal mischief under Section
       3304(a)(2) were established beyond a reasonable doubt.
       Accordingly, we reverse Sewell’s judgment of sentence for
       criminal mischief under Section 3304(a)(2).

Id. at *5 (some citations and footnote omitted; emphasis in original).

       We acknowledge that the factual circumstances in Sewell are slightly

different from those in the case sub judice, as Sewell intentionally reversed

and crashed into the police car while Appellant may have hit the vehicles only

recklessly.11 Nevertheless, the Sewell Court determined that there was no

evidence that Sewell tampered with the police car, only that he damaged it by

backing up and crashing into it. Based on the foregoing, we conclude that

damaging a car as a result of a collision does not constitute ‘tampering’ under

Section 3304(a)(2).       Therefore, we reverse Appellant’s four convictions for

criminal mischief.

                                         Issue 5

       Because we reverse Appellant’s criminal mischief convictions, we need

not address his third and fourth issues. Instead, we proceed to Appellant’s

final claim, in which he avers that his sentences for aggravated assault and

____________________________________________


11 The trial court’s finding is somewhat unclear in this regard. See TCO at 14
(stating that Appellant “intentionally and recklessly tampered with or
interfered with and caused significant damage to multiple vehicles as he
intentionally and recklessly operated the Mercury Marquis at a high rate of
speed”) (emphasis added).

                                          - 22 -
J-A24007-19



REAP should have merged. See Appellant’s Brief at 31. He states that “[t]he

two offenses satisfy the elements test set out in 42 Pa.C.S.[] § 9756.” Id. at

10. Nonetheless, according to Appellant, “[e]ven assuming arguendo that the

statutory test was not met, [Section] 9756 conflicts with Pennsylvania courts’

merger test and, therefore, is unconstitutional in that it violates separation of

powers and double jeopardy rights under the Pennsylvania Constitution.” Id.

      We note that the trial court and the Commonwealth both agree that

Appellant’s sentences for aggravated assault and REAP should have merged.

See TCO at 17-18; Commonwealth’s Brief at 22. However, “[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. Cianci, 130 A.3d 780, 782

(Pa. Super. 2015) (citations omitted).

      This Court has previously determined that these two offenses do not

merge, explaining:
      The Pennsylvania Crimes Code defines the crime of aggravated
      assault in pertinent part as follows:

         § 2702. Aggravated assault

         (a) Offense defined.—A person is guilty of aggravated
         assault if he:

            (1) attempts to cause serious bodily injury to
            another, or causes such injury intentionally,
            knowingly or recklessly under circumstances
            manifesting extreme indifference to the value of
            human life[.]

      18 Pa.C.S.[] § 2702(a)(1). REAP is defined as follows:


                                     - 23 -
J-A24007-19


        § 2705. Recklessly endangering another person

        A person commits a misdemeanor of the second degree if
        he recklessly engages in conduct which places or may place
        another person in danger of death or serious bodily injury.

     18 Pa.C.S.[] § 2705. To sustain a conviction for REAP, “the
     Commonwealth must prove that the defendant had an actual
     present ability to inflict harm and not merely the apparent ability
     to do so. Danger, not merely the apprehension of danger, must
     be created.” Commonwealth v. Hopkins, 747 A.2d 910, 915
     (Pa. Super. 2000) (internal citation omitted).

     Whether two offenses merge for sentencing now turns on Section
     9765 of the Sentencing Code, which addresses merger and
     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.[] § 9765…. See Commonwealth v. Coppedge, 984
     A.2d 562, 563 (Pa. Super. 2009) (stating cases decided before
     effective date of Section 9765 are not instructive in merger
     analysis; relevant question in merger analysis now is whether
     person can commit one crime without also committing other crime
     and vice[]versa, regardless of whether crimes arose from same
     set of facts; if elements differ, under legislative mandate of
     Section 9765, crimes do not merge).

     Instantly, a conviction for aggravated assault requires a person,
     under circumstances manifesting extreme indifference to the
     value of human life, to (1) attempt to cause serious bodily injury
     to another, or (2) cause such injury intentionally, knowingly or
     recklessly. See 18 Pa.C.S.[] § 2702(a)(1). By contrast, to
     commit REAP, a person must recklessly engage in conduct which
     places or may place another person in actual danger of death or
     serious bodily injury. See 18 Pa.C.S.[] § 2705; Hopkins, supra.
     Aggravated assault contains an element missing from REAP —
     serious bodily injury or an attempt to cause serious bodily injury.
     On the other hand, an individual could recklessly place another

                                   - 24 -
J-A24007-19


      person in danger of serious bodily injury without attempting to
      cause (or actually causing) serious bodily injury, which would
      support a conviction for REAP, but not for aggravated assault.
      See, e.g., Commonwealth v. Vogelsong, 90 A.3d 717 (Pa.
      Super. 2014) (affirming REAP conviction of defendant who twice
      let her horse wander unattended on busy roadway and consciously
      disregarded substantial risk of injury posed to passing motorists).
      Additionally, unlike aggravated assault, REAP requires the
      element of actual danger of death or serious bodily injury. An
      individual could attempt to cause serious bodily injury to another
      person without placing that person in actual danger, which would
      support a conviction for aggravated assault but not REAP. See,
      e.g., Commonwealth v. Lopez, … 654 A.2d 1150 ([Pa. Super.]
      1995) (holding defendant who discharged firearm into empty
      residence could be convicted of aggravated assault if he acted with
      intent to cause serious bodily injury to person he believed was in
      residence even though that person was elsewhere). Each offense
      requires proof of an element that is absent from the other offense,
      and one offense can be committed without committing the other
      offense.

Cianci, 130 A.3d at 782-83 (footnote omitted; emphasis in original).

      Here, it is clear that Appellant’s aggravated assault and REAP

convictions arose from a single criminal act, namely, his striking the girl with

his vehicle. See Appellant’s Brief at 33; Commonwealth’s Brief at 21. Thus,

merger hinges on whether all of the statutory elements of REAP are included

in   the   statutory   elements   of   aggravated   assault.   While   Appellant

acknowledges the apparent impediment to relief that Cianci poses to him, he

distinguishes it on the basis that the Cianci Court “held that [Section]

2702(a)(1) generally and REAP do not merge under [Section] 9765[. T]he

panel was not presented with the narrower question, at issue here, of whether

a conviction under the ‘actually causing injury’ portion of [Section] 2702(a)(1)

merges with REAP.” Appellant’s Brief at 34. He elaborates that he “was not



                                       - 25 -
J-A24007-19



convicted under the ‘attempts to cause injury’ portion of [Section] 2702(a)(1).

He was convicted of ‘actually causing injury’ and consequently, he was subject

to higher sentencing guidelines that correspond to that offense.” Id. at 34-

35.12 Thus, he submits that the holding in Cianci does not apply to him as

“the panel in Cianci considered the elements of the entire subsection of (a)(1)

of [Section] 2702, and concluded that the ‘attempts to cause injury’ portion

did not merge with REAP, because REAP requires placing another person in

actual danger or death, whereas under the ‘attempt’ portion of [Section]

2702(a)(1), one could attempt to cause serious bodily injury to another

without actually endangering that person.”         Id. at 34 (citation omitted;

emphasis in original).

       While Appellant’s argument is clever, no relief is due.        To begin,

Appellant was not convicted of aggravated assault causing serious bodily

injury; he was convicted of aggravated assault under Section 2702(a)(1) and

ostensibly sentenced according to the sentencing guidelines for aggravated

assault where serious bodily injury is caused.       Further, Appellant proffers


____________________________________________


12 Appellant claims that the trial court convicted him of aggravated assault
actually causing injury because, when setting forth the sentences it imposed
in its Rule 1925(a) opinion, it stated the following:
       Count 9: 18 [Pa.C.S. § 2702(a)(1)]-Aggravated Assault, F1
       (Causes Serious Bodily Injury): Minimum [7] years and [6]
       months of state supervised term of confinement to maximum [20]
       years[’] confinement[.]

TCO at 6; see also Appellant’s Brief at 32; Commonwealth’s Brief at 21.


                                          - 26 -
J-A24007-19



meager authority and analysis to persuade us that we should apply Section

9765 by parsing out the precise portions of statutory sections (or subsections)

supporting    a   defendant’s   convictions.     Though   Appellant   cites   to

Commonwealth v. Baldwin, 985 A.2d 830 (Pa. 2009), to facilitate this

argument, see Appellant’s Brief at 35, our review of that case leaves us

unconvinced. In Baldwin, our Supreme Court held that “a plain reading of

Section 9765 reveals the General Assembly’s intent that crimes with different

statutory elements be punished separately.” Baldwin, 985 A.2d at 831. In

applying Section 9765 in that case, our Supreme Court first considered what

elements the Commonwealth needed to establish in order to sustain Baldwin’s

convictions under the at-issue statutes.       See id. at 833 (explaining, for

instance, that Baldwin’s “conviction under [18 Pa.C.S. § 6106] required the

Commonwealth to establish that [Baldwin] was either carrying a firearm in a

vehicle or concealed on his person, and that he had no license to do so”). In

its analysis, it did not parse out which specific portions of those particular

statutes the Commonwealth actually proved and compare only those portions

to one another to determine if merger was appropriate. Id. Instead, it looked

at how each statute could be violated and thereby reached the conclusion that

“merger is prohibited in this case because each offense includes an element

the other does not.” Id. at 834 (stating that “[t]o violate [18 Pa.C.S. § 6106],

a defendant must either carry a firearm in a vehicle, or carry a concealed

firearm on or about his person”).




                                     - 27 -
J-A24007-19



      Similarly, the Cianci Court did not parse out which particular portions

of the relevant aggravated assault subsection and REAP statute related to

Cianci’s circumstances.   In more detail, Cianci was convicted of, inter alia,

aggravated assault under Section 2702(a)(1) and REAP after he “started

punching [his girlfriend] in the head, causing her to fall to the ground[,]” later

“grabbed [her] hair and dragged her out of their bedroom into the kitchen[,]”

and then punched her “in the face and head.”         Cianci, 130 A.3d at 781.

Cianci’s girlfriend subsequently sought treatment for her injuries, “which

included an orbital blowout fracture, a swollen lip, and multiple bruises and

scratches.” Id. Like the Baldwin Court, the Cianci Court did not delineate

which specific parts of the applicable subsection of the aggravated assault

statute and REAP statute that Cianci violated.       In other words, it did not

specifically include, as part of its merger analysis, consideration of whether

Cianci only attempted to cause his girlfriend serious bodily injury (rather than

actually causing her such injury) under Section 2702(a)(1).         By the same

token, it did not contemplate whether Cianci recklessly engaged in conduct

that placed his girlfriend in actual danger of death or serious bodily injury as

opposed to whether his conduct only may have placed her in such danger.

See id. at 782. Rather, it examined how the legislature defined the crimes in

the statutory sections (or subsections) underlying Cianci’s convictions, without

accounting for which specific clauses of those sections (or subsections) applied

to his case.   In doing so, the Cianci Court ascertained that because an

individual could commit aggravated assault under Section 2702(a)(1) without

                                     - 28 -
J-A24007-19



committing REAP and vice versa, those offenses did not merge. See id. at

782-83.

     Based on the above-stated precedent, we decline to include such

particularized parsing of statutory sections (or subsections) in our merger

analysis. As Cianci holds, because there are ways an individual could commit

aggravated assault under Section 2702(a)(1) without committing REAP and

vice versa, the elements of the two offenses are different and do not merge.

That Appellant committed aggravated assault causing serious bodily injury

while also committing REAP is inapposite to the merger analysis. Accordingly,

we conclude that these offenses do not merge.

     As an alternative argument, Appellant avers that his sentences for

aggravated assault and REAP should merge because “[Section] 9756 conflicts

with Pennsylvania courts’ merger test and, therefore, is unconstitutional in

that it violates separation of powers and double jeopardy rights under the

Pennsylvania Constitution.” Appellant’s Brief at 10. He claims that, prior to

the enactment of Section 9765, this Court had “repeatedly held that

aggravated assault under [Section 2702(a)(1)] and REAP merge for

sentencing purposes[,]” and adds that “the Pennsylvania Supreme Court has

never adopted a merger test like [Section 9765] that depends entirely on the

elements of offenses.” Id. at 37. Consequently, he says that, “[i]n enacting

[Section] 9765, the [l]egislature violated separation of powers by overruling

judicial decisions by Pennsylvania’s appellate courts.”   Id. at 38 (citation

omitted). Furthermore, though Appellant recognizes that our Supreme Court

                                   - 29 -
J-A24007-19



in Baldwin rejected a federal double jeopardy challenge to Section 9765, he

insists that Pennsylvania’s double jeopardy clause has sometimes been

interpreted to provide more double jeopardy protections than its federal

counterpart, and he therefore urges us to determine that Section 9756

violates the Pennsylvania Constitution. See id. at 39-40.

      “[T]he constitutionality of a statute presents a pure question of law.

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

Commonwealth v. Wade, 33 A.3d 108, 115-16 (Pa. Super. 2011) (citations

omitted). Moreover, we note that “[s]tatutes are presumed constitutional.”

Id. at 116 (citation omitted).

      Appellant’s constitutional arguments do not warrant relief. This Court

has previously held that Section 9756 does not violate Pennsylvania’s double

jeopardy clause. See Wade, 33 A.3d at 121. Further, Section 9756 does not

violate the separation of powers doctrine, as our Supreme Court has discerned

that its “pre-Section 9765 jurisprudence characterized the merger doctrine as,

first and foremost, a rule of statutory construction[,]” and double jeopardy

protections serve “principally as a restraint on courts and prosecutors” while

the legislature “remains free … to define crimes and fix punishments….”

Baldwin, 985 A.2d at 835, 836. See also Wade, 33 A.3d at 121 (“Since the

double jeopardy clause in the Pennsylvania Constitution originally applied only

to multiple prosecutions in capital cases and not sentencing merger, the

framers of the Pennsylvania constitution never intended to restrict the




                                    - 30 -
J-A24007-19



legislature, via our double jeopardy clause, from defining merger of sentence

issues.”). Accordingly, this challenge fails.

                                  Conclusion

      To summarize, we determine that the evidence was sufficient to

establish Appellant’s identity as the perpetrator. However, we ascertain that

the evidence was insufficient to sustain Appellant’s four convictions for

criminal mischief under Section 3304(a)(2) because damaging a car as a result

of a collision does not constitute ‘tampering’ under that provision. Further,

we reject Appellant’s assertion that his convictions for aggravated assault

under Section 2702(a)(1) and REAP should have merged, and deny his

argument that Section 9756 is unconstitutional based on Pennsylvania’s

double jeopardy and separation of powers protections.

      In light of our disposition, specifically, by reversing four of Appellant’s

convictions, we have upset the trial court’s overall sentencing scheme.

Therefore, we vacate the judgment of sentence and remand for resentencing.

See, e.g., Commonwealth v. McCoy, 199 A.3d 411, 420 (Pa. Super. 2018).

      Convictions for criminal mischief under 18 Pa.C.S. § 3304(a)(2)

reversed.   All other convictions affirmed.     Judgment of sentence vacated.

Case remanded for resentencing. Jurisdiction relinquished.




                                     - 31 -
J-A24007-19




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/12/20




                          - 32 -
