J-S53022-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                         Appellee

                    v.

VICTOR DELOATCH

                         Appellant                   No. 69 MDA 2015


         Appeal from the Judgment of Sentence September 9, 2013
               In the Court of Common Pleas of York County
            Criminal Division at No(s): CP-67-CR-0000532-2012


BEFORE: DONOHUE, J., OTT, J., and MUSMANNO, J.

CONCURRING AND DISSENTING MEMORANDUM BY OTT, J.:

                                               FILED DECEMBER 30, 2015

      I agree with Majority’s determination that there was sufficient

evidence to support Deloatch’s convictions on the charges of criminal

conspiracy to commit forgery and criminal attempt to acquire controlled

substances by misrepresentation.     However, I must respectfully disagree

with the Majority’s conclusion that Deloatch’s sentence is illegal. Therefore,

I respectfully concur and dissent.

      The Majority determined the trial court’s imposition of separate,

consecutive sentences for Deloatch’s convictions of two inchoate crimes –

criminal conspiracy to commit forgery and criminal attempt to acquire

controlled substances by misrepresentation – violates Section 906 of the
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Crimes Code.    See Majority Memorandum at 12-13.       For the reasons that

follow, I disagree.

      Section 906 prohibits the conviction of “more than one of the inchoate

crimes of criminal attempt … or criminal conspiracy for conduct designed to

commit or to culminate in the commission of the same crime.” 18 Pa.C.S. §

906. As this Court explained in Commonwealth v. Welch, 912 A.2d 857

(Pa. Super. 2006):

      “Section 906 was designed to prevent multiple inchoate charges
      that carry with them the same criminal intent.” Commonwealth
      v. Davis, 704 A.2d 650, 653 (Pa. Super. 1997). Under section
      906, “inchoate crimes merge only when directed to the
      commission of the same crime, not merely because they arise
      out of the same incident.” Commonwealth v. Graves, 510 Pa.
      423, 508 A.2d 1198 (1986) (emphasis added).

Id. at 859 (emphasis in original).   See, i.e., Commonwealth v. Brown,

486 A.2d 441, 445 (Pa. Super. 1984) (vacating separate sentence imposed

for conviction of conspiracy to commit burglary pursuant to Section 906,

when defendant was also convicted and sentenced for attempted burglary).

      Contrary to the Majority’s conclusion, I find Deloatch’s convictions for

criminal conspiracy and criminal attempt were directed to different

underlying crimes, i.e., conspiracy to commit forgery (18 Pa.C.S. §

4101(a)(2))    and    attempt   to    acquire   controlled   substances    by

misrepresentation (35 P.S. § 780-113(a)(12)).       Although I acknowledge

Deloatch attempted to acquire the controlled substances by using a forged

prescription during the same incident, I do not agree that fact alone dictates

a finding that he was convicted of the same underlying crimes. Rather, our

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Supreme Court has made clear:                  “[I]nchoate crimes merge only when

directed to the commission of the same crime, not merely because they

arise out of the same incident.”           Commonwealth v. Graves, 508 A.2d

1198, 1198 (Pa. 1986) (holding Section 906 did not preclude defendant’s

conviction of criminal conspiracy to commit aggravated assault and criminal

solicitation to commit murder when “[t]he conspiracy was for the purpose of

furthering an assault with several co-defendants upon three police officers;

the solicitation to murder had as its object the death of one of the officers.”).

       Therefore, because I find Section 906 does not preclude separate

sentences for these crimes, I would affirm the judgment of sentence.1

Accordingly, I concur and dissent.




____________________________________________


1
  I would also conclude the crimes do not merge pursuant to 42 Pa.C.S. §
9765, because each crime contains an element the other does not. See
Commonwealth v. Baldwin, 985 A.2d 830, 833 (Pa. 2009) (Section 9765
prohibits merger “unless two distinct facts are present: 1) the crimes arise
from a single criminal act; and 2) all of the statutory elements of one of the
offenses are included in the statutory elements of the other.”).




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