J-A26021-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
RYAN S. WISE
Appe||ant No. 6 WDA 2016

 

Appeal from the Judgment of Sentence September 9, 2015
In the Court of Common Pleas of Clarion County
Criminal Division at No(s): CP-16-CR-0000095-2015

BEFORE: BENDER, P.J.E., RANSOM, J., and MUSMANNO, J.
MEMORANDUM BY RANSO|V|, J.: FILED NOVEMBER 08, 2016

Appe||ant, Ryan S. Wise, appeals from the judgment of sentence of 50
to 100 months' incarceration imposed after his conviction for burglary,
criminal trespass, and related charges.1 We affirm.

The parties do not dispute the facts, which we adopt from the trial
court's opinion.2 See Trial Court Opinion (TCO), 11/23/15, at 1-2.
Appe||ant and an accomplice broke into a pharmacy, smashing the window
with a hammer and climbing through it. In the process, Appe||ant cut

himself on the broken glass. Once inside, he ransacked the pharmacy and

 

1 18 Pa.C.S. § 3502 and 18 Pa.C.S. § 3503.
2 Appe||ant did not order the notes of trial and sentencing. Appe||ant's Brief
at 8.

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stole methadone and morphine. Police later identified Appe||ant through
DNA evidence.

On August 6, 2015, following trial, a jury convicted Appe||ant of
burglary, criminal trespass, theft by unlawful taking, receiving stolen
property, possession of an instrument of crime (PIC), criminal mischief, and
possession of a controlled substance.3 The jury acquitted Appe||ant of
possession with intent to deliver.4

On September 9, 2015, the court sentenced Appe||ant to eighteen to
thirty-six months' incarceration for burglary, sixteen to thirty-two months'
incarceration for PIC, and sixteen to thirty-two months' incarceration on the
criminal trespass charge.5 Each charge ran consecutively for an aggregate
sentence of 50 to 100 months of incarceration.

On September 17, 2015, Appe||ant filed a post-sentence motion
arguing that the sentences for criminal trespass and burglary should merge
for sentencing purposes, and the sentences for PIC and burglary should

merge for sentencing purposes. On November 23, 2015, by memorandum

opinion, the trial court denied Appe||ant's motion.

 

3 18 Pa.C.S. §§ 3502, 3503, 3921, 3925, 907, 3304, and 780-113(a)(30),
respectively.

4 18 Pa.c.s. § 780-113(a)(30).

5 For purposes of sentencing, the trial court merged the convictions for
receiving stolen property and possession of a controlled substance with
theft, and the conviction for theft with that of burglary.

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Appe||ant timely appealed and filed a court-ordered Pa.R.A.P. 1925(b).
The trial court issued a responsive statement incorporating its prior
memorandum opinion.

Herein, Appe||ant presents two issues for our review:

I. Did the trial court err in failing to merge the criminal trespass
charge with the burglary charge?

II. Did the trial court err in failing to merge [Appellant's]
possessing instruments of crime charge with the burglary
charge?

Appe||ant's Brief at 4 (unnecessary capitalization omitted).

Appe||ant's claims involve merger. A claim that crimes should have
merged for sentencing purposes raises a challenge to the legality of the
sentence. Commonwealth v. Allen, 24 A.3d 1058, 1062 (Pa. Super.
2011). Our scope of review is plenary and our standard of review is de
novo. Id. Whether two offenses merge will turn on Section 9765 of the

Sentencing Code, which provides:

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.
First, Appe||ant argues that burglary and criminal trespass should
merge for sentencing purposes because both charges share substantially

similar statutory elements, despite current jurisprudence holding otherwise.

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Appe||ant argues that the term “licensed and privileged" is foundational to
the charges of both burglary and criminal trespass, and thus, the crimes
should merge for sentencing purposes.6 Appe||ant's Brief at 10-19.

This Court has previously clarified the current state of merger law in
Pennsylvania, noting that “there is no merger if each offense requires proof
of an element the other does not.” Commonwealth v. Quintua, 56 A.3d
399, 400-01 (Pa. Super. 2012). Thus, because criminal trespass contains an
element of knowledge that burglary does not, and because burglary contains
an element of intent that criminal trespass does not, the two offenses do not
merge for purposes of sentencing. See Quintua, 56 A.3d at 402.

Appe||ant acknowledges that Quintua holds that the statutory
elements of burglary and criminal trespass are not contained within each
other, but requests that we reconsider that decision. Appe||ant's Brief at 15.
We decline to do so, as a three-judge panel is not empowered to overrule
another panel of this Court. See Commonwealth v. Beck, 78 A.3d 656,
659 (Pa. Super. 2013); see also Commonwealth v. Taylor, 649 A.2d 453,
455 (Pa. Super. 1994) (declining to address a claim as a panel of this Court

is not empowered to overrule another panel).

 

6 A statutory defense to burglary is that an actor is licensed and privileged to
enter, while a statutory element of criminal trespass is that an actor is not
licensed and privileged to enter. See 18 Pa.C.S. § 3502 and 18 Pa.C.S. §
3503.

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Next, Appe||ant argues that the trial court erred in failing to merge
Appe||ant's sentence for burglary with his sentence for PIC. Although
Appe||ant concedes that PIC and burglary do not merge under 42 Pa.C.S. §
9765, he attempts to put forth an alternative means of merger through 18
Pa.C.S. § 3502(d).7 Appe||ant argues that because the hammer used to
break the window was found inside the pharmacy, it was “intended to be
possessed therein." Essentially, Appe||ant argues that the possession of the
hammer was the crime Appe||ant had intended to commit during the
burglary. Appe||ant's Brief at 9, 20-21.

A person commits the offense of burglary if:

[w]ith the intent to commit a crime therein, the person enters a
building or occupied structure, or separately secured or occupied
portion thereof that is not adapted for overnight
accommodations in which at the time of the offense no person is
present.

18 Pa.C.S. § 3502(a)(4). With regard to PIC,

A person commits a misdemeanor of the first degree if he
possesses any instrument of crime with intent to employ it
criminally.

18 Pa.C.S. § 907. An instrument of crime is further defined as anything
used for criminal purposes and possessed by the actor under circumstances

not manifestly appropriate for lawful uses it might have. 18 Pa.C.S. § 907.

 

7 “A person may not be sentenced 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. § 3502(d).

_5_

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It is clear from the language of the statutes that PIC and burglary do
not merge, as burglary requires entry into a structure and PIC does not.
See 42 Pa.C.S. § 9765. Indeed, as noted above, Appe||ant admits as much.
However, Appe||ant attempts to argue that 18 Pa.C.S. § 3502(d) applies to
this case because Appe||ant broke into the pharmacy with the intent to

possess the hammer therein. Appe||ant baldly states that:

Possession could have only occurred outside the pharmacy_but
that is not what happened here. The hammer was found inside
the pharmacy on the floor. This, by definition, required
possession of the hammer while inside the pharmacy during a
burglary. Therefore, the only reasonable inference remains that
the hammer was to be possessed after the illegal entry.

Appe||ant's Brief at 21. This argument is so strained as to defy belief.
Appe||ant was captured on surveillance video striking the pharmacy window
with the hammer and entering the pharmacy. TCO at 1-2. Appe||ant
possessed the hammer with the intent to use it in a criminal manner,
namely, to break the window and effectuate a burglary. The crime Appe||ant
intended to commit by burglarizing the pharmacy was theft: namely, of one
tablet of methadone and 287 tablets of morphine. TCO at 2-5. The trial
court, in merging Appe||ant's sentences for burglary and theft, made this
clear. We see no error in this ruling.

In the alternative, Appe||ant argues that Apprendi8 and its progeny

should apply to his case. He avers that because the trial court did not

 

8 Apprendi v. New Jersey, 120 s. ct. 2348 (2000).

_6_

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merge the sentences for burglary and PIC, his maximum sentence was
increased. No specific factual finding was made that “PIC was not intended

II

to be committed during the course of the burglary. Thus, he avers that his
sentence was illegal. Appe||ant's Brief at 22-23.

Appe||ant's attempts to apply Apprendi to the instant case are equally
unavailing. Apprendi held that any fact other than the fact of prior
conviction which increases the penalty for a crime beyond the prescribed
statutory maximum must be proven beyond a reasonable doubt and
submitted to a jury. Apprendi, 120 S. Ct. at 2363 (emphasis added). The
Pennsylvania Supreme Court has further held that Apprendi is not
implicated when a sentence imposed for a given conviction does not exceed
the applicable statutory maximum. Commonwealth v. Gordon, 942 A.2d
174, 182 (Pa. 2007) (citations omitted).

In the instant case, burglary is a felony of the second degree, with a
statutory maximum sentence of ten years. See 18 Pa.C.S. § 3502(c)(1); 18
Pa.C.S. § 1103. Appe||ant was sentenced to eighteen to thirty-six months'
incarceration, far below the statutory maximum. PIC is a misdemeanor of
the first degree, which carries a statutory maximum of five years. See 18
Pa.C.S. § 907; 18 Pa.C.S. § 1104. Appe||ant was sentenced to sixteen to
thirty-two months' incarceration, far below the statutory maximum. Even

Appe||ant's aggregate consecutive sentence does not exceed the statutory

maximum for a felony of the second degree.

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As we have noted above, the crimes of burglary and PIC are separate
and do not merge. Although Appe||ant's conviction for multiple crimes does,
undoubtedly, increase his term of sentence, it does not implicate Apprendi.

Accordingly, Appe||ant's sentences for burglary and criminal trespass,
and for PIC and burglary, should not merge; and the trial court's sentence
was correct. See Quintua, 56 A.3d at 402.

Judgment of sentence affirmed.

Judgment Entered.

 

J seph D. Seletyn, Es .
Prothonotary

Date: 11/8/2016

