J-S27043-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

VINCENT PARKER,

                            Appellant                 No. 826 MDA 2015


            Appeal from the Judgment of Sentence January 6, 2015
               In the Court of Common Pleas of Juniata County
             Criminal Division at No(s): CP-34-CR-0000079-2014

BEFORE: SHOGAN, J., DUBOW, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.:                        FILED APRIL 06, 2016

        This is an appeal from the judgment of sentence imposed after a jury

convicted Appellant of burglary, graded as a first-degree felony, and theft by

unlawful taking, graded as a second-degree felony.1 We affirm.

        The pertinent facts and procedural history may be summarized as

follows:    On the evening of December 12, 2013, the victim drove to

Harrisburg to pick up Elizabeth Taylor, an acquaintance, who agreed to

spend the evening with him. After checking into a hotel room and engaging

in sexual activity, Ms. Taylor informed the victim that she wished to return

to her home. The victim agreed to take her, however, since it was around

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1
    18 Pa.C.S.A. §§ 3502 and 3921(a), respectively.




*Former Justice specially assigned to the Superior Court.
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midnight, he did not want to drop her off at her home because it was in an

unsafe area of Harrisburg. The two agreed that the victim would drive her

to a Burger King where a taxi would be called to take Ms. Taylor to her

home. They arrived at the Burger King parking lot at approximately 1:00

a.m., and, after about ten minutes, the taxi had not arrived. According to

the victim, Ms. Taylor began to perform oral sex on him when he was

abruptly pulled from the vehicle by Appellant, who the victim recognized

only by his street name of “Pastor Phil,” and an altercation ensued. Leaving

the victim lying in the parking lot, Appellant and Ms. Taylor left the area in

the victim’s vehicle.

      Appellant drove to the victim’s mobile home in Thompsontown, Juniata

County.   Upon arriving at the victim’s home, Appellant exited the vehicle

while Ms. Taylor remained inside.    Using a key from the victim’s key ring,

Appellant entered the mobile home.         Approximately fifteen to twenty

minutes later, Ms. Taylor exited the vehicle and argued with Appellant. They

then proceeded to the victim’s other vehicle parked on the property, and

drove back to Harrisburg.

      After receiving treatment at a local Harrisburg hospital for the injuries

he suffered during the altercation, the victim called a friend who drove him

back to his mobile home.     Upon their arrival, the victim noticed that the

vehicle he had driven to Harrisburg was parked at the property, and that his

other vehicle was missing. He also noticed that the door to his mobile home


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was ajar even though he had locked it before leaving with Ms. Taylor the

night before. The two men decided not to enter the mobile home in case

anyone remained inside, and contacted the state police. Upon entering the

residence, Trooper Banks Bennett and the victim proceeded to a back

bedroom that was completely ransacked—the bed had been flipped over,

and drawers were left hanging open. The victim informed Trooper Bennett

that multiple firearms were missing, as well as cash and other personal

items.   The victim informed the trooper of the previous incident in

Harrisburg, and opined that “Pastor Phil” and Ms. Taylor were the

perpetrators of the crime.

      Trooper Bennett entered information regarding the victim’s vehicle as

stolen, the vehicle was later found, and Ms. Taylor was taken into custody.

Trooper Bennett later spoke with Ms. Taylor, who confirmed that she was

with Appellant when he entered the victim’s mobile home, and that Appellant

was known as “Pastor Phil.” After further investigation, both Appellant and

Ms. Taylor were charged in Juniata County with burglary and theft by

unlawful taking.

      Ms. Taylor testified for the Commonwealth at Appellant’s jury trial, and

later entered a guilty plea to the crimes charged against her.         At the

conclusion of the jury trial, Appellant was convicted of burglary, graded as a

first-degree felony, and theft by unlawful taking, graded as a second-degree

felony. On January 6, 2015, the trial court sentenced Appellant to a term of


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three years to eight years of imprisonment for his burglary conviction, and a

consecutive term of four years to eight years of imprisonment for his theft

conviction, resulting in an aggregate seven to sixteen year term of

incarceration.   Following the denial of his post-sentence motion, Appellant

filed this timely appeal.   Both Appellant and the trial court have complied

with Pa.R.A.P. 1925.

      Appellant raises the following issues:

            1. Did the trial court illegally impose separate and
               consecutive sentences on the Burglary and Theft By
               Unlawful Taking offenses, in that the Theft offense
               merged with the Burglary offense for sentencing
               purposes?

            2. Even if the Burglary and Theft By Unlawful Taking
               offenses did not merge for sentencing purposes, was
               the sentence imposed on the Theft By Unlawful
               Taking offense illegal in that it exceeded the
               statutory maximum?

See Appellant’s Brief at 4. We address Appellant’s issues together.

      Because    the   issue   of   whether   multiple   convictions   merge   for

sentencing purposes is a question implicating the legality of sentence, our

standard of review is plenary. Commonwealth v. Jenkins, 96 A.3d 1055,

1056 (Pa. Super. 2014) (citation omitted).          Additionally, we note that

challenges to the legality of sentence are non-waivable.               See, e.g.,

Commonwealth v. Robinson, 931 A.2d 15, 24 (Pa. Super. 2007).

      Section 9765 of the Judicial Code discusses the merger concept, and

provides as follows:



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           § 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 to the higher graded offense.

42 Pa.C.S.A. § 9765. Thus, under this section, “merger is appropriate only

when two distinct criteria are satisfied: (1) the crimes arise from a single

criminal act; and (2) all of the statutory elements of one of the offenses are

included within the statutory elements of the other.” Jenkins, 96 A.3d at

1056 (citation omitted).

         At sentencing the parties discussed the issue of merger with the trial

court.    Defense counsel first opined that “both offenses [arose] out of the

same action; and they should be molded so as to merge for sentencing

purposes as a single offense in Juniata County.”      N.T., 1/6/15, at 4.   The

Commonwealth disagreed, stating that the convictions resulted from “two

separate incidents - - or two separate crimes, the Burglary and the Theft.”

Id. at 5. The following exchange then occurred:

               THE COURT: Well, on the merger, I mean, there is two
           different scenarios we are looking [at] here. I mean,
           Burglary with the intent to commit a crime therein, if that
           crime is Theft, I think there might be a merger issue. But
           some of the stuff we are looking at here was taken
           outside, like the vehicle, which is a separate offense than
           the Burglary.

              But that was all included in the one count of a Theft, is
           that correct?

              [THE COMMONWEALTH]: That’s correct.


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            THE COURT: So there was some stuff - - the Theft is
        also alleged as the underlying offense in the Burglary; but
        yet some of the Theft stuff, like the vehicle, was not
        alleged in the home.

           [THE COMMONWEALTH]: That’s correct. They were all
        included within the one Theft offense, which was the
        moveable property; the - - the vehicle, the firearms, cash,
        other items.

N.T., 1/6/15, at 5-6. The trial court then asked defense counsel if he had

anything to add, and counsel informed the court of his belief that the trial

court “has the discretion to get - - to merge these two offenses.” Id. at 7.

The court concluded the discussion by stating, “I think I have the - - ability

to merge or run concurrent regardless on this. I don’t know about merge[r],

but I think I have the ability to run concurrent or consecutive.” Id. After

hearing from Appellant, the trial court then imposed the consecutive

sentences enumerated above.

     In his Rule 1925(b) statement of errors complained of on appeal,

Appellant asserted that his sentence was illegal because the burglary and

theft charges “stemm[ed] from the same transaction (an alleged entry into

the alleged victim’s residence and alleged taking therefrom of certain items

of personalty), [and therefore] the two sentences [sic] should have merged

for sentencing purposes.”    Pa.R.A.P. 1925(b), 6/2/15.     Within his brief,

however, Appellant raises two alternative bases for challenging the legality




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of his aggregate sentence.2 First, Appellant claims that, “without a specific

finding as to what items of property [Appellant] was guilty of stealing, the

[trial] court engaged in impermissible speculation in finding that the verdict

was for a Felony 2nd Degree Theft of firearms, the only property the grading

of which would prevent the statutory merger of the Theft with the Burglary

for sentencing.” Appellant’s Brief at 7. Alternatively, Appellant asserts that,

if the crimes do not merge based upon the trial court’s reasoning that the

theft of the automobile was a separate incident, his theft sentence is still

illegal because the four to eight year sentence imposed exceeds the

statutory maximum for theft of an automobile, a third-degree misdemeanor.

See id. Appellant’s claims are meritless.

       As stated above, section 9765 has two separate criteria; the crimes

must arise from a single act, and all of the statutory elements of one of the

offenses must be included within the statutory elements of the other.

Jenkins, supra. Here, it is clear that burglary and theft do not share the

same statutory elements.         Compare 18 Pa.C.S.A. § 3502(a) (providing a

person is guilty of burglary if with the intent to commit the crime therein a

person unlawfully enters a building) with 18 Pa.C.S.A. § 3921(a) (providing

a person is guilty of theft if he unlawfully takes moveable property of


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2
  Although Appellant has altered his claim of illegality on appeal, as noted
above, such challenges are non-waivable. Robinson, supra.




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another with intent to deprive him thereof). Thus, Section 9765 does not

require merger in this case.

       Nevertheless,     Appellant     acknowledges   that   the   burglary   statute

provides direction for when the crimes of burglary and theft should merge:

          (d) Multiple convictions.—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.A. § 3502(d).3         Contrary to Appellant’s assertion, the trial court

did not need to resort to speculation to determine the grading of the theft

offense. The Commonwealth charged Appellant with, and the jury convicted

him of, theft graded as a second-degree felony for stealing multiple items,

including firearms. See 18 Pa.C.S.A. § 3903(a)(2) (providing that theft is a

second-degree felony if the property stolen is a firearm). Thus, pursuant to

Section 3502(d), the trial court properly sentenced Appellant for both

convictions. Additionally, we note that, because the maximum sentence for

a second-degree felony conviction is ten years, see 18 Pa.C.S.A. § 1103(2),

Appellant’s four to eight-year sentence for theft is not illegal.




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3
  Neither the parties nor the trial court addressed this statutory section at
the time of sentencing.




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     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/6/2016




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