J-S09020-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    LEONARD W. BOCCHICCHIO                     :
                                               :
                          Appellant            :   No. 805 WDA 2018

             Appeal from the Judgment of Sentence April 27, 2018
    In the Court of Common Pleas of Blair County Criminal Division at No(s):
                           CP-07-CR-0000486-1982


BEFORE:      PANELLA, P.J., LAZARUS, J., and STRASSBURGER*, J.

MEMORANDUM BY LAZARUS, J.:                               FILED MARCH 18, 2019

        Leonard W. Bocchicchio appeals from his judgment of sentence, entered

in the Court of Common Pleas of Blair County, following his convictions of first-

degree murder        1   and robbery.2   Bocchicchio, a juvenile at the time of the

crime, was tried and convicted by a jury in 1983 and was sentenced to the

mandatory term of life imprisonment without the possibility of parole. That

sentence was vacated pursuant to Miller v. Alabama, 567 U.S. 460 (2012),

and Commonwealth v. Batts, 66 A.3d 286 (Pa. 2013).                 Following a re-

sentencing hearing, Bocchicchio was sentenced to a term of 35 years’ to life

incarceration, followed by a consecutive sentence of 24 to 48 months’

confinement for his robbery conviction. Upon careful review, we affirm.

____________________________________________


1   18 Pa.C.S.A. § 2502(a).

2   18 Pa.C.S.A. § 3701(1)(i).
____________________________________
* Retired Senior Judge assigned to the Superior Court.
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       We briefly recount the underlying facts of this matter. On December 6,

1980, Bocchicchio and four others met at the Station Mall in Altoona and

decided to “cruise” around in one person’s car. They stopped at the Penn

Classic Bowling Lanes to allow a 15-year-old girl in the car to call her mother

and provide her whereabouts.           Because it was after 11 p.m., Bocchicchio

accompanied the young woman into the bowling alley because she was

reluctant to enter alone given the late hour. Upon entering, the young woman

asked the bowling alley’s owner, Elwood Figard, if she could use the telephone.

Figard led her to a room behind the counter to use the telephone. After being

unable to reach her mother, the young woman exited the room and, while

walking towards the exit, observed Bocchicchio throw a bowling ball at Figard’s

head. She then observed Bocchicchio run behind the counter to where Figard

lay, raise his hand over his head, and bring it down towards Figard’s head.

See Trial Court Opinion, 5/6/87, at 1-2); N.T. Re-Sentencing, 4/25/18, at 7-

9.3

       A few minutes after the young woman exited the bowling alley,

Bocchicchio came running from the bowling alley’s exit with a bowling ball in

his hands, which he then threw into a nearby grassy area. Bocchicchio then

returned to the car and made a statement that the group should leave because

he had just killed a man. During the ride back to Altoona, Bocchicchio began



____________________________________________


3 At the re-sentencing hearing, the Honorable Elizabeth A. Doyle incorporated
into the record the Opinion of the original trial court.

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counting money from a moneybag and offered to share the proceeds with the

car’s other occupants. See N.T. Re-Sentencing, 4/25/18, at 7-9.

     On April 8, 1983, a jury found Bocchicchio guilty of the above offenses.

On April 9, 1983, the jury recommended a sentence of life imprisonment

without the possibility of parole for first-degree murder.   Bocchicchio filed

post-trial and supplemental post-trial motions. While these motions were

pending, the original trial judge resigned from the bench in December 1986.

The case was then assigned to the Honorable Bertram B. Leopold, who denied

Bocchicchio’s post-trial motions on May 6, 1987. After the death of Judge

Leopold in July 1987, the Honorable Thomas G. Peoples, President Judge of

the Court of Common Pleas of Blair County, sentenced Bocchicchio to life

imprisonment for the first-degree murder conviction, and a consecutive

sentence of 10 to 20 years’ imprisonment for robbery.

     As noted above, Bocchicchio’s initial sentence for first-degree murder,

life imprisonment without the possibility of parole, was vacated as

unconstitutional pursuant to Miller. On April 26, 2018, the sentencing court

imposed a new sentence of 35 years’ to life imprisonment for first-degree

murder and a consecutive term of 24 to 48 months’ confinement for robbery.

On May 2, 2018, Bocchicchio filed a pro se motion to modify sentence, arguing

that the sentence imposed for his robbery conviction was illegal because it

should have merged with his sentence for first-degree murder. On May 3,

2018, the sentencing court denied Bocchicchio’s motion. On May 29, 2018,

Bocchicchio filed a notice of appeal. On May 30, 2018, the sentencing court

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

complained of on appeal and he timely complied.

      Bocchicchio raises the following issue on appeal: “Did the sentencing

court err in sentencing [Bocchicchio] to a term of 24 to 48 months’

[imprisonment for robbery], to run consecutive to his [life] sentence for first-

degree murder.” Brief of Appellant, at 4.

      Before we may reach the merits of Bocchicchio’s appeal, we must first

determine if his sole issue was preserved for appellate review pursuant to Rule

1925(b). In its August 6, 2018 opinion, the trial court observed Bocchicchio

“does not state in what way the trial court’s sentence is an illegal sentence.

If the trial court were to attempt to address this claim, it would have to

speculate upon the legal theory” that forms the basis for Bocchicchio’s claim.

Trial Court Opinion, 8/6/18, at 3. The issue as stated in Bocchicchio’s Rule

1925(b) statement is as follows: the “trial court erred in sentencing

[Bocchicchio] to a term of 24 to 48 months’ [confinement] for his robbery

conviction, said sentence was to run consecutive to sentence for murder,

because it was an illegal sentence.” Id. The trial court went on to address

Bocchicchio’s claim, finding imposition of a consecutive sentence appropriate,

and finding no illegality with respect to merger.

      First, Bocchicchio appears to contend the trial court erred in imposing

consecutive sentences. Such a claim challenges the discretionary aspects of

his sentence. There is no absolute right to appeal the discretionary aspects

of a sentence. Commonwealth v. Mouzon, 812 A.2d 617, 621 (Pa. 2002).

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Before this Court can address such a discretionary challenge, an appellant

must comply with the following requirements:

       [W]e conduct a four-part analysis to determine: (1) whether
       appellant has filed a timely notice of appeal; (2) whether the issue
       was properly preserved at sentencing or in a motion to reconsider
       and modify sentence; (3) whether appellant's brief has a fatal
       defect; and (4) whether there is a substantial question that
       the sentence appealed from is not appropriate under the
       Sentencing Code.

Commonwealth v. Buterbaugh, 91 A.3d 1247, 1265-66 (Pa. Super. 2014).

Bocchicchio has complied with these requirements.4

       Allowance of an appeal raising such a claim will be granted only when

the appellate court with initial jurisdiction over such claims determines that

there is a substantial question that the sentence is not appropriate under the

Sentencing Code. Mouzon, 812 A.2d at 621.          A substantial question exists

only when the “appellant advances a colorable argument that the sentencing

judge’s actions were either: (1) inconsistent with a specific provision of the

Sentencing Code; or (2) contrary to the fundamental norms which underlie

the sentencing process.” Commonwealth v. McNabb, 819 A.2d 54, 55-56

(Pa. Super. 2003). However, we will find that a substantial question exists

where an appellant sets forth a plausible argument that the sentence violates

a particular provision of the Sentencing Code or is contrary to the fundamental

norms underlying the sentencing process. Id. at 56.
____________________________________________


4 Here, Bocchicchio did not file a Pa.R.A.P. 2119(f) statement in his brief, but
the Commonwealth has not objected.           Accordingly, we decline to find
Bocchicchio’s discretionary claim waived on that basis. See Commonwealth
v. Krum, 533 A.2d 134, 138-139 (Pa. Super. 1987) (en banc).

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Here, Bocchicchio has failed to raise a substantial question to invoke this

Court’s jurisdiction over the discretionary aspects of his sentence. A court’s

exercise of discretion in imposing a sentence concurrently or consecutively

does not ordinarily raise a substantial question.     See Commonwealth v.

Mastromarino, 2 A.3d 581, 587 (Pa. Super. 2010). Rather, the imposition

of consecutive rather than concurrent sentences will present a substantial

question in only “the most extreme circumstances, such as where the

aggregate sentence is unduly harsh, considering the nature of the crimes and

the length of imprisonment.” Commonwealth v. Lamonda, 52 A.3d 365,

372 (Pa. Super. 2012).

      Even if we were to reach the merits of this claim, we would find no abuse

of discretion.   This Court has held that when imposing a sentence, the

sentencing court “must consider the factors set out in 42 Pa.C.S.A. § 9721(b),

that is, protection of the public, gravity of the offense in relation to impact on

victim and community, and rehabilitative needs of the defendant.          And, of

course, the court must consider the sentencing guidelines.” Commonwealth

v. Fullin, 892 A.2d 843, 847-48 (Pa. Super. 2006).

      Bocchicchio was re-sentenced for his convictions of first-degree murder

and robbery. The sentencing court heard testimony from Bocchicchio, inmates

previously incarcerated with Bocchicchio, guards responsible for supervising

Bocchicchio, a report from a defense psychologist stating that Bocchicchio has

a low propensity for future violence, and a detailed account of his family




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history, including childhood abuse, and intellectual capacity. Specifically, the

sentencing court stated the following:


      [Bocchicchio] brutally murdered a 75-year-old man with a bowling
      ball and stole his money. There can be no more serious crime. In
      mitigation, [Bocchicchio] committed this crime when he was 17-
      years-old. The expert witness testified that the human brain is not
      fully formed until the age of 25. Further, [Bocchicchio] was
      sexually and physically abused by his stepfather who also
      accompanied him in many robberies.

      Also, the [sentencing court] finds that in considering the facts of
      the offense, the murder, the fact that a bowling ball was used
      mitigates for [Bocchicchio] in that it argues against premeditation;
      [he] didn’t have a weapon in the car that he carried into the
      bowling alley to use on the victim[.]

      So in crafting this sentence, the [c]ourt has taken into account all
      the material presented in the sentencing proceeding; all the
      content of all exhibits; the case law previously cited by the court;
      the testimony of Mr. Bocchicchio which the [c]ourt also takes as
      allocution by Mr. Bocchicchio . . . the [c]ourt sentence will be
      based on all of the above and the [c]ourt’s belief that the
      sentences of incarceration for Mr. Bocchicchio are not merely
      punitive, but instead are rehabilitative and can continue to be
      rehabilitative and prepare him for eventual release.

N.T. Sentencing, 4/26/18, at 39-42. Regarding the consecutive sentence for

the robbery conviction, the sentencing court stated the “Commonwealth

thought in sentencing separately on the robbery is that [it] was a separate

offense, you know there was a murder committed and there was the robbery

committed and the [c]ourt finds that it’s appropriate to pronounce sentence

on both of them[.]” Id. at 44. The sentencing court placed significant reasons

on the record that informed the basis for the sentence.



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      Second, Bocchicchio avers the sentencing court imposed an illegal

sentence because his robbery conviction should have merged with his first-

degree murder conviction for sentencing purposes. This claim is a challenge

to the legality of his sentence.   For the following reasons, Bocchicchio is

entitled to no relief.

      Crimes do not merge unless they arise from a single criminal act and all

the statutory elements of one offense are included in the elements of the

other. Commonwealth v. Williams, 920 A.2d 887, 889 (Pa. Super. 2007);

42 Pa.C.S.A. § 9765.      A review of the criminal statutes under which

Bocchicchio was convicted reveals no errors. It is not the case that all of the

statutory elements of first-degree murder are included in the statutory

elements of robbery, as would be required for merger. See Commonwealth

v. Baldwin, 985 A.2d 830, 833 (Pa. 2009). First-degree murder occurs when

“(1) a human being was unlawfully killed; (2) the defendant was responsible

for the killing; and (3) the defendant acted with malice and a specific intent

to kill.” Commonwealth v. Martin, 101 A.3d 706, 718 (Pa. 2014). A person

is guilty of robbery if “in the course of committing a theft, he . . . inflicts

serious bodily injury upon another.” 18 Pa.C.S.A. § 3701(a)(1)(i).

      A conviction for first-degree murder does not require proof that a

defendant intended to commit a theft and, conversely, the crime of robbery

certainly does not require proof a human being was unlawfully killed. Our

courts have consistently held the crimes of robbery and first-degree murder


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do not merge for sentencing purposes. See Commonwealth v. Breakiron,

571 A.2d 1-35 (Pa. 1990); see also Commonwealth v. Harper, 499 A.2d

331, 337 (Pa. Super. 1985).        Since the two crimes did not merge for

sentencing purposes, the sentencing court did not impose an illegal sentence.

Therefore, Bocchicchio is entitled to no relief.

      Judgment of sentence affirmed.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/18/2019




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