J-S76034-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA,                 IN THE SUPERIOR COURT
                                                            OF
                                                       PENNSYLVANIA
                             Appellee

                        v.

    TAMIR HAMMETT,

                             Appellant                 No. 4 EDA 2017


              Appeal from the Judgment of Sentence May 18, 2017
               in the Court of Common Pleas of Delaware County
               Criminal Division at No.: CP-23-CR-0003586-2015


BEFORE: PANELLA, J., STABILE, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                             FILED MARCH 26, 2018

        Appellant, Tamir Hammett, appeals from the judgment of sentence

imposed on November 17, 2016, and amended by the order of May 18, 2017,

following his bench convictions of one count each of simple assault, terroristic

threats, stalking, criminal trespass, robbery, theft by unlawful taking,

receiving stolen property, disorderly conduct, and harassment.1 On appeal,

Appellant challenges both the discretionary aspects and the legality of

sentence. For the reasons discussed below, we affirm.




____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S.A. §§ 2701(a), 2706(a)(1), 2709.1(a)(1), 3503(a)(1),
3701(a)(1), 3921(a), 3925(a), 5503(a)(1), and 2709(a)(1), respectively.
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        We take the underlying facts and procedural history in this matter from

our independent review of the certified record.            On July 8, 2015, the

Commonwealth filed a criminal information charging Appellant with the

aforementioned offenses, as well as one count each of arson, risking a

catastrophe, and recklessly endangering another person.2 The charges arose

out of an incident on April 24, 2015, wherein Appellant sent numerous

threatening text messages to his ex-girlfriend (the victim).             (See N.T.

Preliminary Hearing, 6/10/15, at 5-9).3          Ultimately, Appellant came to the

victim’s residence, assaulted her in the presence of her children, and took her

keys. (See id. at 10-14). The victim was able to escape, but a few minutes

after she left the scene, Appellant called her and told her that her house was

on fire. (See id. at 15-17). The victim returned to the home, which was on

fire, and contacted the police and fire departments. (See id.).

        Following a bench trial on September 21, 2016, the trial court acquitted

Appellant of arson, risking a catastrophe, and recklessly endangering another

person, but convicted him of the remaining offenses. Following receipt of a

Pre-Sentence Investigation Report (PSI), on November 3, 2016, the trial court

sentenced Appellant to an aggregate term of incarceration of not less than

ninety nor more than one hundred and eighty months.



____________________________________________


2   18 Pa.C.S.A. §§ 3301, 3302, and 2705, respectively.

3   We note that the trial transcript is not included in the certified record.

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      On November 14, 2016, Appellant filed a counseled petition to modify

sentence. On November 17, 2016, the trial court granted the petition in part,

modifying the sentence to reflect credit for time served but denied the

challenges in the remainder of the petition.        The instant, timely appeal

followed.

      On December 22, 2016, the trial court ordered Appellant to file a concise

statement of errors complained of on appeal.           See Pa.R.A.P. 1925(b).

Appellant filed a timely Rule 1925(b) statement on January 11, 2017, alleging,

in part, that his conviction for receiving stolen property should have merged

with his robbery and theft convictions for sentencing. See Pa.R.A.P. 1925(b);

(see also Appellant’s Rule 1925(b) Statement, 1/11/17, at unnumbered page

2). On May 18, 2017, the trial court issued an amended sentencing order

vacating the sentence for receiving stolen property. On July 21, 2017, the

trial court issued an opinion. See Pa.R.A.P. 1925(a).

      On appeal, Appellant raises the following questions for our review:

             Whether the sentence imposed was harsh and excessive
      under the circumstances[?] There is a substantial question that
      the sentence is not appropriate per the sentencing code because
      it requires deeper consideration as to total confinement, whether
      partial confinement is indicated, whether correctional treatment
      can only be completed during incarceration, and whether a lesser
      sentence would deprecate the seriousness of the offense[?]

            Whether the elements of count 4 stalking, 13 disorderly
      conduct and 14 harassment are included in the elements of count
      1 simple assault, as charged in the bills of information[?] Failure
      to apply merger was error.

(Appellant’s Brief, at 10) (unnecessary italicization and capitalization omitted).

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      In his first claim, Appellant challenges the discretionary aspects of his

sentence. (See Appellant’s Brief, at 17-21). Our standard of review is settled.

             Sentencing is a matter vested in the sound discretion of the
      sentencing judge, and a sentence will not be disturbed on appeal
      absent a manifest abuse of discretion. In this context, an abuse
      of discretion is not shown merely by an error in judgment. Rather,
      the appellant must establish, by reference to the record, that the
      sentencing court ignored or misapplied the law, exercised its
      judgment for reasons of partiality, prejudice, bias or ill will, or
      arrived at a manifestly unreasonable decision.

Commonwealth v. Gonzalez, 109 A.3d 711, 731 (Pa. Super. 2015), appeal

denied, 125 A.3d 1198 (Pa. 2015) (citation omitted).

      On appeal, to the extent that it can be determined from Appellant’s

vague argument, he claims that the sentence was harsh and excessive

because the trial court did not consider a sentence of less than total

confinement. (See Appellant’s Brief, at 17; see also id. at 17-21). However,

Appellant waived this claim.

      We note, “[i]ssues challenging the discretionary aspects of sentence

must be raised in a post-sentence motion or by presenting the claim to the

trial court during the sentencing proceedings.       Absent such efforts, an

objection to a discretionary aspect of a sentence is waived.” Commonwealth

v. McAfee, 849 A.2d 270, 275 (Pa. Super. 2004), appeal denied, 860 A.2d

122 (Pa. 2004) (citations and internal quotations marks omitted).

      Here, while Appellant did file a post-sentence motion for modification of

sentence, the only issues challenging the discretionary aspects of sentence

concerned the trial court’s decision to impose consecutive sentences. (See

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Motion for to Modify Sentence, 11/14/16, at unnumbered page 2). It is settled

that an appellant waives any discretionary aspects of sentence issue not raised

in a post-sentence motion; also, an appellant cannot raise an issue for the

first time on appeal. See Commonwealth v. Mann, 820 A.2d 788, 794 (Pa.

Super. 2003), appeal denied, 831 A.2d 599 (Pa. 2003) (finding claim

sentencing court did not put sufficient reasons to justify sentence on record

waived where issue was not raised in post-sentence motion); see also

Pa.R.A.P. 302(a).     Thus, Appellant waived his discretionary aspects of

sentence claim.

      In his second issue, Appellant contends that his sentence is illegal

because the trial court sentenced him on stalking, disorderly conduct, and

harassment, charges that he believes merge with simple assault for purposes

of sentencing. (See Appellant’s Brief, at 22-27). Specifically, Appellant states

that all four charges arose out of the same set of facts and included identical

elements. (See id.). We disagree.

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

implicating the legality of Appellant’s sentence.”         Commonwealth v.

Baldwin, 985 A.2d 830, 833 (Pa. 2009). We have stated:

      The issue of whether a sentence is illegal is a question of law;
      therefore, our task is to determine whether the trial court erred
      as a matter of law and, in doing so, our scope of review is plenary.
      Additionally, the trial court’s application of a statute is a question
      of law that compels plenary review to determine whether the court
      committed an error of law.




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Commonwealth v. Williams, 871 A.2d 254, 262 (Pa. Super. 2005) (citations

and quotation marks omitted).    Section 9765 of the Judicial Code, which

governs the merger of sentences, 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.A. § 9765. When interpreting Section 9765, our Supreme Court

has directed that the courts apply an elements-based test when determining

questions of merger at the time of sentencing:

           A plain language interpretation of Section 9765 reveals the
     General Assembly’s 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. . . .

Baldwin, supra at 837 (footnote omitted).    We have explained:

     [T]he threshold question is whether Appellant committed one
     solitary criminal act. The answer to this question does not turn
     on whether there was a break in the chain of criminal activity.
     Rather, the answer turns on whether the actor commits multiple
     criminal acts beyond that which is necessary to establish the bare
     elements of the additional crime[.] If so, then the defendant has
     committed more than one criminal act. This focus is designed to
     prevent defendants from receiving a volume discount on crime[.]

Commonwealth v. Orie, 88 A.3d 983, 1020 (Pa. Super. 2014), appeal

denied, 99 A.3d 925 (Pa. 2014) (quotation marks omitted).




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      As stated above, Appellant complains that his sentences for stalking,

harassment, and disorderly conduct should have merged with his sentence for

simple assault. To commit stalking, an individual must:

      (1) engage[] in a course of conduct or repeatedly commit[] acts
      toward another person, including following the person without
      proper authority, under circumstances which demonstrate either
      an intent to place such other person in reasonable fear of bodily
      injury or to cause substantial emotional distress to such other
      person; or

      (2) engage[] in a course of conduct or repeatedly communicate[]
      to another person under circumstances which demonstrate or
      communicate either an intent to place such other person in
      reasonable fear of bodily injury or to cause substantial emotional
      distress to such other person.

18 Pa.C.S.A. § 2709.1(a)(1)-(2).

      A person commits harassment when: “with intent to harass, annoy or

alarm another, the person . . . strikes, shoves, kicks or otherwise subjects the

other person to physical contact, or attempts or threatens to do the same[.]”

18 Pa.C.S.A. § 2709(a)(1). A person is guilty of disorderly conduct when:

“with intent to cause public inconvenience, annoyance or alarm, or recklessly

creating a risk thereof, he . . . engages in fighting. . .”     18 Pa.C.S.A. §

5503(a)(1). Lastly, a person commits simple assault when he:

      (1) attempts to cause or intentionally, knowingly or recklessly
      causes bodily injury to another;

      (2) negligently causes bodily injury to another with a deadly
      weapon;

      (3) attempts by physical menace to put another in fear of
      imminent serious bodily injury[.]


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18 Pa.C.S.A. § 2701(a)(1), (2), and (3).

      Each of these statutes contains elements that simple assault does not.

Harassment requires an intent to annoy or harass which simple assault does

not. See Commonwealth v. Hoffman, 594 A.2d 772, 775 (Pa. Super. 1991)

(holding that harassment does not merge with simple assault for purposes of

sentencing).    Disorderly conduct requires a person to create a hazardous or

physically offensive condition, an element that simple assault lacks. Stalking

requires a course of conduct that results in fear or substantial distress, which

is not an element of simple assault.    Since each of these offenses contains

separate statutory elements, they do not merge for purpose of sentencing.

See Baldwin, supra at 837; see also 42 Pa.C.S.A. § 9765.            Appellant’s

challenge to the legality of sentence lacks merit.

      Appellant’s claims are either waived or without merit. Accordingly, we

affirm the judgment of sentence.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/26/18




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