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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

  COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA

               v.


  RASHEEN CUPITT

                     Appellant             :   No. 2012 EDA 2018
            Appeal from the PCRA Order Entered June 15, 2018
  In the Court of Common Pleas of Philadelphia County Criminal Division at
                      No(s): CP-51-CR-0011768-2007

BEFORE: BENDER, P.J.E., OLSON, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY OLSON, J.:                                FILED JULY 24, 2019
      Appellant, Rasheen Cupitt, appeals from the order entered on June 15,

2018 which denied his petition filed pursuant to the Post -Conviction Relief Act

(PCRA), 42 Pa.C.S.A. § 9541-9546. We affirm.

      The PCRA summarized the facts and procedural history in this case as

follows:

      On July 19, 2006, at 1:00 a.m., Richard Wagner and two friends,
      Daryl Walton and Katie Maher, were sitting in Mr. Wagner's parked
      truck on the 100 block of Comly Street, Philadelphia, when
      [Appellant] and two accomplices crept up behind them.
      [Appellant] and his accomplices removed guns from a duffle bag,
      and [Appellant] pointed a rifle at Mr. Walton in the front passenger
      seat. [Appellant] ordered Mr. Walton and Mr. Wagner to strip
      naked and hand over their belongings. [Appellant] and his
      accomplices took clothes, jewelry, cash, wallets, cell phones, a
      pocketbook, and prescription medication from the three victims.
      [Appellant] and his accomplices then forced themselves into the
      truck and ordered Mr. Wagner to drive them all to a destination
      located just   a   short distance away.      When they arrived,
      [Appellant] and one of his accomplices took off with the victims'
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     belongings while the remaining accomplice remained with the
     victims and continued to aim his handgun at them. When Mr.
     Walton begged for the return of a photograph of his mother that
     was in the wallet [the perpetrators] stole, [Appellant's] accomplice
     replied, "F**k you. I shoulda offed both your b***h asses and
     leave them right here." The accomplice then took the keys to the
     victim's truck and left.
     Ms. Maher, the only clothed victim, went to the nearby home of
     Mr. Wagner's uncle and asked him to call the police. Officer
     Shawn King arrived at the scene, interviewed the victims and
     issued a flash information describing their assailants.
     Officer David Dawson and his partner responded. Standing in
     front of [a location along] Malta Street, half a block from where
     the victims had been stranded, the officers saw three males
     matching the robbers' description. [Appellant], dressed all in
     black, was one of them. By the time the officers got out of their
     patrol car and approached the house, [Appellant] and the other
     two individuals had gone inside. Officer Dawson recovered
     Richard Wagner's cell phone and state identification card from the
     top step, where [Appellant] stood moments earlier.
     Diana Kellam answered the officers' knock on the door. She gave
     them permission to search the house and led them to the
     basement steps. [Appellant] and Mrs. Kellam's son, co-defendant
     William Kellam, cowered in the basement below. The officers
     announced themselves and asked [Appellant] and Kellam to come
     upstairs.   When they complied, Officer Dawson noticed the
     [Appellant] had changed from the all -black clothing he had worn
     moments earlier to a white T-shirt and pajama bottoms. Officer
     King brought the victims to the house, where they positively
     identified [Appellant] and Kellam as two of the men who had
     robbed them. When he was arrested, [Appellant] refused to give
     his name.
     The police then searched the basement. Officer Dawson found
     [Appellant's] discarded black T-shirt and pants. Mr. Wagner's BIC
     lighter, which had been stolen during the robbery, was in one of
     the pants pockets. Officer Mike Frisco, who had since arrived to
     assist the other officers, found two firearms secreted in the ceiling
     rafters. One was a silver .32 caliber handgun loaded with seven
     live rounds. The other was a .22 caliber rifle with a sawed-off
     barrel and stock and loaded with six live rounds. The victims
     positively identified the firearms as those used in robbery.

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     Following a bench trial, th[e trial c]ourt found [Appellant] guilty of
     three counts of robbery, one count of person not to possess, use,
     manufacture, control, sell or transfer firearms, one count of
     firearms not to be carried without a license, three counts of theft
     by unlawful taking or disposition, one count of carrying firearms
     on public streets or public property in Philadelphia, one count of
     possessing instruments of crime, and three counts of recklessly
     endangering another person. On March 19, 2009, th[e trial c]ourt
     sentenced [Appellant] to an aggregate term of twenty to forty
     years' state incarceration and fifteen years' probation.'
     Specifically, [Appellant] was sentenced to consecutive terms of
     five to ten years' incarceration for each count of robbery and for
     [persons not to possess firearms]; a concurrent term of three and
     one-half to seven years' imprisonment [for firearms not to be
     carried without a license]; a concurrent term of two and one-half
     to five years' imprisonment [for possession of a firearm on the
     public streets of Philadelphia]; and consecutive terms of five
     years' probation for each of the three theft charges. No further
     penalty was imposed on the remaining counts. [Appellant] filed a
     pro se motion for reconsideration of his sentence, which was
     subsequently denied.
     [This] Court affirmed [Appellant's] judgment[] of sentence on
     December 30, 2009 and [Appellant] did not seek allocator.
     On January 3, 2011, [Appellant] timely filed a pro se petition
     under the [PCRA].      After several continuances and changes in
     court appointed PCRA counsel, th[e PCRA c]ourt appointed
     Attorney Jennifer Tobin as PCRA counsel for [Appellant] on August
     8, 2016. Attorney Tobin filed a counseled amended PCRA petition
     on June 9, 2017 and a supplemental amended petition on June
     16, 2017 raising two claims: (1) appellate counsel was ineffective
     for failing to perfect a challenge to the discretionary aspects of
     [Appellant's] sentence and (2) the [s]entencing [o]rder did not
     reflect what th[e trial court] stated on the record at [Appellant's]
     March 19, 2009 sentencing hearing. The Commonwealth filed a
     motion to dismiss [Appellant's amended petition] on October 30,
     2017, and [Appellant] responded on December 8, 2017.
     On February 16, 2018, th[e PCRA c]ourt issued an amended
     sentencing order that addressed the clerical errors in [Appellant's]
     sentencing [o]rder that had been identified in [Appellant's
     amended PCRA petition. Thereafter], on February 20, 2018, [the
     PCRA court] sent notice of [its] intent to dismiss the remainder of
     [Appellant's amended petition] without a hearing. [Appellant]

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      filed a response on April 11, 2018, and on June 5, 2018, the
      Commonwealth filed a brief statement in support of its [dismissal
      motion]. Although th[e PCRA court afforded relief on Appellant's
      second claim, the court determined on June 15, 2018 that
      Appellant's first claim lacked merit and failed to raise any issues
      of material fact and, therefore, was subject to dismissal without a
      hearing].2 On July 11, 2018, [Appellant] appealed th[e PCRA
      c]ourt's June 15, 2018 [o]rder dismissing [Appellant's a]mended
      [p]etition. [The parties and the PCRA court have satisfied the
      requirements of Pa.R.A.P. 1925.]


      1 This case constituted [Appellant's] seventeenth arrest as an
      adult, seventh conviction, seventh commitment, and sixth
      violation of probation.
      2 A written Order was subsequently filed on June 18, 2018.

PCRA Court Opinion, 9/10/18, at 1-4 (certain citations omitted).

      Appellant raises a single claim for our review:

      Did   appellate     counsel   provide   constitutionally   ineffective
      assistance when he failed to preserve [Appellant's] excessive
      sentence challenge for appellate review by failing to include it in
      [a] Rule 1925(b) [concise s]tatement, thereby waiving this issue?

Appellant's Brief at 3.

      Appellant's sole claim is that the PCRA court erred in denying him an
evidentiary hearing and in refusing reinstatement of his appellate rights.
Specifically, Appellant asserts that direct appeal counsel was ineffective in
waiving review of a discretionary sentencing challenge where counsel failed to

include the claim in a Rule 1925(b) concise statement. Appellant maintains
that he possesses a meritorious challenge to the discretionary aspects of his

sentence because the consecutive terms of his punishment were manifestly

excessive in view of the fact that only one criminal episode occurred and

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Appellant directed his conduct toward only a single victim. The PCRA court
determined that Appellant failed to raise a substantial question, or a claim
likely to succeed on the merits, since his consecutive, standard range
sentences did not result in a manifestly excessive punishment that was
disproportionate to Appellant's role in the offense.     Additionally, because

Appellant raised no material fact, and his claims were wholly devoid of merit,

the court concluded that he was not entitled to an evidentiary hearing.

      We carefully reviewed the certified record, the submissions of the
parties, and the opinion of the PCRA. Based upon our review, we are satisfied

that the PCRA court correctly denied relief. Moreover, since the PCRA court

adequately and accurately addressed the claim raised by Appellant, we adopt

its opinion as our own. Accordingly, the parties are directed to attach the
PCRA court's opinion to all future filings pertaining to the disposition of this
appeal.

      Order affirmed.'



' Our review of the record reveals that the trial court imposed three,
consecutive five-year probationary sentences for Appellant's theft convictions
and directed that Appellant's 15 -year probationary term should commence
after his imprisonment for robbery and firearms offenses.           Appellant,
therefore, received separate punishments for his theft and robbery
convictions. Whether Appellant's theft and robbery convictions merge for
sentencing purposes is a question implicating the legality of his punishment.
See Commonwealth v. Jenkins, 96 A.3d 1055 (Pa. Super. 2014), appeal
denied, 104 A.3d 3 (Pa. 2014).




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Section 9765 of the Pennsylvania Sentencing Code provides as follows
regarding the merger of crimes for sentencing purposes:

      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. Accordingly, merger is appropriate only when two
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. Id.

Although we have not located a definitive, published decision that addresses
the propriety of merging theft and robbery convictions since the adoption of
42 Pa.C.S.A. § 9765 and the issuance of Commonwealth v. Baldwin, 985
A.2d 830 (Pa. 2009), we note that appellate courts in Pennsylvania generally
have held, in past cases, that robbery and theft convictions merge for
sentencing purposes and that separate sentences are not permitted. See
Commonwealth v. Humpheys, 532 A.2d 836, 844 (Pa. Super. 1987)
("conviction for theft by receiving stolen property was subsumed into the
robbery [conviction] for sentencing purposes"); see also Commonwealth v.
Yancey, 447 A.2d 1041, 1043 (Pa. Super. 1982) (same); Commonwealth
v. Brazzle, 416 A.2d 536, 539 (Pa. Super. 1979) ("theft is a necessary
ingredient of robbery").

A strict application of § 9765 could, however, lead to a different result. Theft
requires a completed taking of property (see 18 Pa.C.S.A. § 3921(a)) and,
therefore, contains an element not contained in robbery. Moreover, robbery
contains an element not necessary for theft since robbery requires some use
of force or threat thereof. See 18 P.C.S.A. § 3701(a). Since theft and robbery
arguably contain elements which the other offense does not, a rigid application
of § 9765 plausibly suggests that robbery and theft would not merge. See 42
Pa.C.S.A. § 9765 (merger inappropriate 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").

We may not resolve the merger issue presented in this case, however. Merger
is an issue that implicates the legality of a sentence and one which we may
raise sua sponte. Commonwealth v. Wolfe, 106 A.3d 800, 801 (Pa. Super.


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Judgment Entered.




  seph D. Seletyn,
Prothonotary


Date: 7/24/19




2014). Nevertheless, our case law is equally clear that the failure to raise a
legality of sentencing claim in a PCRA petition, or otherwise before the PCRA
court, precludes consideration of such a claim for the first time on appeal.
See Commonwealth v. Ousley, 21 A.3d 1238, 1242 (Pa. Super. 2011)
(legality of sentencing claim involving merger doctrine could not be addressed
for first time on appeal where claim was not presented in PCRA petition or
otherwise litigated before PCRA court), appeal denied, 30 A.3d 487 (Pa. 2011).
Because Appellant did not challenge the legality of his sentence in        his
amended petition or otherwise before the PCRA court, we cannot address the
merger issue for the first time on appeal.
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