J-S76035-16


                                  2016 PA Super 309

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

LUCIANO MARTINEZ

                            Appellant                 No. 2118 EDA 2015


             Appeal from the Judgment of Sentence June 29, 2015
             In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0009700-2014


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

OPINION BY STEVENS, P.J.E.:                       FILED DECEMBER 29, 2016

        Luciano Martinez (“Appellant”) appeals from the judgment of sentence

entered in the Court of Common Pleas of Philadelphia County, which sitting

as finder of fact in his waiver trial found him guilty of robbery, persons not

to possess a firearm, carrying a firearm without a license, theft by unlawful

taking, theft by receiving stolen property, possession of an instrument of

crime, carrying a firearm on public streets of Philadelphia, simple assault,

recklessly endangering another person, and terroristic threats.     Appellant

contends that the Commonwealth introduced insufficient evidence to support

his terroristic threats conviction and that the court imposed an illegal

sentence by imposing separate sentences for the crimes of robbery,

____________________________________________


*
    Former Justice specially assigned to the Superior Court.
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terroristic threats, simple assault, and recklessly endangering another

person. We affirm in part and reverse in part.

      The trial court aptly provides a pertinent factual history of the case as

follows:

      On August 8, 2014, at approximately 8:55 p.m., complainant
      and his friend[, who were on their way home to Bucks County
      from a contracting job, decided to stop at a] pizza restaurant
      located at the corner of Orthodox and Torresdale Streets in
      Philadelphia, PA. N.T., 2/24/15 at 19. Because the restaurant
      did not have a public restroom, complainant left the pizza
      restaurant and walked across the street to find a private location
      to relieve himself. Id. at 20. Complainant stopped in an alley
      next to a corner store located at 2033 Orthodox Street…. Id. at
      19, 44.

      Appellant approached complainant and asked [him] if he needed
      anything. Id. at 21. Complainant told appellant that he did not
      need anything from appellant and that he was in the alley “just
      looking for a place to go to the bathroom.” Id. Appellant then
      asked complainant, “what do you got?” Id. at 22. Complainant
      told appellant that he “did not have anything.” Id. At that
      moment, appellant pulled out a silver revolver and pressed it
      against complainant’s cheek. Id. at 21-22. Appellant them
      slammed complainant against the hood of a nearby motor
      vehicle and rummaged through complainant’s pockets. Id. at
      22. Appellant took fifty dollars ($50) and a cellular phone from
      complainant and ran away. Id. at 22-23.

Trial Court Opinion, filed 2/10/16, at 3-4.

      Later that evening, police arrested Appellant and found him in

possession of complainant’s cell phone during a search incident to arrest, but

they found neither complainant’s money nor a handgun on either his person

or at his residence. Id. at 33, 35, 37, 86. A February 4, 2015, bench trial

resulted in convictions on all counts relating to Appellant’s attack of


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complainant, and the court subsequently sentenced Appellant to a six to

twelve year period of incarceration for robbery to which the following

concurrent sentences were also imposed: four to eight years for possession

of a firearm prohibited; two to four years for firearms not to be carried

without license; nine to eighteen months for carrying firearms in public in

Philadelphia; one to two years for possession of an instrument of crime; one

to two years for terroristic threats; one to two years for simple assault; and

one to two years for the reckless endangerment of another person.          This

timely appeal followed.

      Appellant presents the following two questions for our review:

      1. Was not the evidence insufficient to support appellant’s
         conviction for terroristic threats where no verbal threats were
         uttered by appellant?

      2. Did not the trial court err by imposing separate sentences for
         the crimes of robbery, terroristic threats, simple assault and
         recklessly endangering another person, where the latter three
         offenses each merged with robbery for purposes of
         sentencing, thereby resulting in an illegal sentence that must
         be vacated?

Appellant’s brief at 3.

      In his first issue, Appellant argues a conviction for terroristic threats

may not be sustained solely on evidence that he uttered the question “what

do you got?” moments before pointing a gun at complainant and robbing

him. The statute requires the communication of a threat to commit a crime

of violence with intent to terrorize, Appellant maintains, and the evidence at

bar was devoid of any such communication. We disagree.


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      When presented with a challenge to the sufficiency of the evidence,

this court’s well-settled standard of review is as follows:

      In reviewing the sufficiency of the evidence, we must determine
      whether the evidence, and all reasonable inferences deducible
      therefrom, viewed in the light most favorable to the
      Commonwealth as verdict winner, are sufficient to establish all of
      the elements of the offenses beyond a reasonable doubt.

In re L.A., 853 A.2d 388, 391 (Pa.Super. 2004) (citation omitted).

      The   crime   of   terroristic   threats   is   committed   when   a   person

“communicates, either directly or indirectly, a threat to commit any crime of

violence with intent to terrorize another.” 18 Pa.C.S.A. § 2706(a)(1). An

express or specific threat is not necessary to sustain a conviction for

terroristic threats. Commonwealth v. Reynolds, 835 A.2d 720 (Pa.Super.

2003).   Consequently, “[i]t is unnecessary for an individual to specifically

articulate the crime of violence which he or she intends to commit where the

type of crime may be inferred from the nature of the statement and the

context and circumstances surrounding the utterance of the statement.”

Commonwealth v. Sinnott, 976 A.2d 1184, 1187-188 (Pa.Super. 2009)

(quotations and citations omitted), aff’d in part and rev’d in part, 30 A.3d

1105 (Pa. 2011).

      “[T]he harm sought to be prevented by the statute is the psychological

distress that follows from an invasion of another's sense of personal

security[,]” In re B.R., 732 A.2d 633, 636 (Pa.Super. 1999). Nevertheless,

whether the person threatened actually believes the threat will be carried

out is irrelevant, as such a factor is not an element of the offense.”

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Commonwealth v. Reynolds, 835 A.2d 720, 730 (Pa.Super. 2003)

(citation omitted).

      The complainant provided the following pertinent testimony about his

encounter with Appellant:

      PROSECUTOR:          Approximately how far away was the
      defendant from you when you were having this conversation?

      COMPLAINANT:            No more than three feet.

      Q:   And you indicated that he came up and asked you what
      you needed?

      A:    Yes, ma’am.

      Q:    Did you know what he was talking about?

      A:    I had an idea of what he was talking about but it wasn’t
      my purpose so I just said nothing. I’m just looking for a place to
      go to the bathroom.

      Q:    And when you told him you were looking for a place to go
      to the bathroom, tell His Honor exactly what he did.

      A:    That’s when he proceeded to say, [‘]what do you got[?’]
      and I said [‘]I don’t have anything[’] and he pulled a gun out
      and he had slammed me up against the hood of a green car and
      started rumbling through my pocket, trying to get what I had.

      ***
      Q:    And where was the gun in relation to you?

      A:    In my cheek – my right cheek.

N.T. 2/24/15, at 21-22, 23.

      Here, it is reasonable to infer from the totality of circumstances that

Appellant’s question, posed in a dark alley to complainant after he had



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already indicated he wished to be left alone, was intended both to serve

notice that complainant would not be left alone and to place him in a

resultant state of fear and submission. When complainant, instead, rebuffed

him a second time, Appellant immediately acted on his implied threat of

force by placing a gun against complainant’s face to effectuate the robbery.1

Accordingly, because evidence of Appellant’s words and conduct established

beyond a reasonable doubt a threat to commit a crime with the intent to

terrorize his victim, we reject Appellant’s challenge to the sufficiency of the

evidence offered to prove terroristic threats were made.

       In his remaining issue, Appellant argues that the imposition of

separate sentences for the crimes of robbery, terroristic threats, simple

assault, and recklessly endangering another person amounted to an illegal

sentencing scheme, as the court was bound to merge the latter three crimes

as lesser-included offenses of robbery.          A claim that crimes should have

merged for sentencing purposes raises a challenge to the legality of the
____________________________________________


1
  It is of no moment that Appellant did not explicitly inform complainant of
the nature of the crime he threatened to commit. The combination of
Appellant’s statements and actions taking place in a dark, secluded alley
amounted to a threat to commit a crime of violence. See Commonwealth
v. Hudgens, 582 A.2d 1352 (Pa.Super. 1990) (holding no need to inform
victim of specific crime intended where nature of threat and surrounding
circumstances allowed inference of threat to commit murder or aggravated
assault); Commonwealth v. White, 335 A.2d 436 (Pa.Super. 1975)
(holding threat to commit crime of rape proven by circumstances that
defendant told victim he was “going to grab her” and proceeded to carry her
to abandoned building, pinned her to wall, and lifted skirt before victim’s cry
for help prompted neighbor’s assistance).



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sentence.2 Therefore, our standard of review is de novo and our scope of

review is plenary.”         Commonwealth v. Quintua, 56 A.3d 399, 400

(Pa.Super. 2012).

       Appellant was charged with and convicted of the following pertinent

offenses under the Crimes Code:

       § 3701. Robbery

       (a) Offense defined.—

       (1) A person is guilty of robbery if, in the course of committing a
       theft, he:
       ...
       (ii) threatens another with or intentionally puts him in fear of
       immediate serious bodily injury[;]

       § 2706. Terroristic threats

       (a) Offense defined.—A person commits the crime of
       terroristic threats if the person communicates, either directly or
       indirectly, a threat to:

       (1) commit any crime of violence with intent to terrorize
       another[;]

       § 2705. Recklessly endangering another person.




____________________________________________


2
  We note that this issue is raised for the first time in Appellant's Brief, as
Appellant did not include it in his Pa.R.A.P.1925(b) Concise Statement of
Errors Complained of on Appeal. However, issues regarding the legality of a
sentence are non-waivable. Commonwealth v. Dinoia, 801 A.2d 1254,
1257 (Pa.Super. 2002). Accordingly, this Court may review Appellant's
claim even though it has not been properly preserved.




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      A person commits a misdemeanor of the second degree if he
      recklessly engages in conduct which places or may place another
      person in danger of death or serious bodily injury[;] and

      § 2701. Simple Assault

      (a)     Offense defined. Except as provided under section 2702
              (relating to aggravated assault), a person is guilty of
              assault if he:
      (1)     attempts to cause or intentionally, knowingly or recklessly
              causes bodily injury to another.

18 Pa.C.S.A. §§ 3701(a)(1)(ii), 2706(a)(1), 2705, and 2701(a)(1).

      Whether these offenses merge turns on Section 9765 of our

Sentencing Code, which provides:

      § 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 on the higher graded
      offense.

42 Pa.C.S.A. § 9765.

      “The statute's mandate is clear. It 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.” Commonwealth v. Baldwin, 985 A.2d 830, 833

(Pa. 2009).     Accord Commonwealth v. Wade, 33 A.3d 108 (Pa.Super.

2011) (holding Section 9765 prohibits merger of sentences unless strict two-

part test met).

      When considering whether there is a single criminal act or
      multiple criminal acts, the question is not “whether there was a

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       ‘break in the chain’ of criminal activity.” The issue is whether
       “the actor commits multiple criminal acts beyond that which is
       necessary to establish the bare elements of the additional crime,
       then the actor will be guilty of multiple crimes which do not
       merge for sentencing purposes.”

Commonwealth v. Pettersen, 49 A.3d 903, 912 (Pa.Super. 2012).

       In determining whether two or more convictions arose from a single

criminal act for purposes of sentencing, we must examine the charging

documents filed by the Commonwealth.             Commonwealth v. Jenkins, 96

A.3d 1055, 1060 (Pa.Super. 2014) (holding, consistent with our Supreme

Court’s jurisprudence, “We must determine whether [defendant’s] actions . .

. constituted a single criminal act, with reference to elements of the crime as

charged by the Commonwealth.”) (internal quotation marks and citation

omitted).

       In Jenkins, a three-judge panel agreed3 that merger of robbery4 and

simple assault convictions was not applicable to the otherwise lesser and

greater-included offenses5 as charged in that case where the charging

____________________________________________


3
  Though not joining the majority decision, Judge Strassburger concurred
that the “convictions do not merge for sentencing purposes because they are
not predicated upon ‘a single criminal act.’ 42 Pa.C.S. § 9765.” Id. at
1064.
4
  The defendant in Jenkins was charged with robbery at 18 Pa.C.S. §
3701(a)(1)(iv), which proscribes inflicting bodily injury upon another or
threatening another with or intentionally putting him in fear of immediate
bodily injury during the course of a theft.
5
  The panel agreed that, “[w]ere it the case that Jenkins’ [sic] had been
convicted of both simple assault and robbery upon the basis of a single
(Footnote Continued Next Page)


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documents and the victim’s testimony listed an act in support of the robbery

that was not included among the acts forming the basis for simple assault.

Specifically, the bodily injury elements to both the robbery and simple

assault charges were based on initial blows to the victim’s face that put him

to the ground.         Only the robbery charge, however, was supported by

additional evidence that defendant then placed his boot on the prostrate

victim’s face to restrain him, an act which the victim testified was both

frightful and painful.

      The panel observed that the events listed in the information and

described by the victim at trial would, therefore, establish the bodily injury

element of robbery without regard to the facts that supported the charge of

simple assault. The panel reasoned:

      “Had the Commonwealth listed only the assaultive conduct that
      formed the basis of the simple assault charge against Jenkins at
      the robbery charge, we would conclude that Jenkins did not
      commit “multiple criminal acts beyond that which is necessary to
      establish the bare elements of the additional crime.

      ***
      However, the Commonwealth’s description of the conduct
      forming the basis of the robbery charge against Jenkins also
      included the Defendants’ conduct in restraining Caracillo on the
      ground. Caracillo’s testimony indicates that the Defendants
      restrained him by holding a foot to his head in a manner that
      exacerbated his existent facial injuries. N.T. at 100. This
      additional physical restraint caused Caracillo substantial pain.
      Id. These events would establish the “bodily injury” element of
                       _______________________
(Footnote Continued)

criminal act, we would likely order Jenkins’ resentencing because simple
assault appears to be a lesser included offense of robbery.” Id. at 1062



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       robbery, even in the absence of the facts that established
       Jenkins’ conviction for simple assault.

Id. at 1062.      Accordingly, the panel concluded that the crimes were the

result of multiple criminal acts precluding merger of the convictions for

purposes of sentencing.

       Our recent decision in Commonwealth v. Kimmel, 125 A.3d 1272

(Pa.Super. (2015)) (en banc), concluded that the dictates of Jenkins were

satisfied where the criminal complaint and information set forth generic

charges of DUI and felony fleeing, while the affidavit of probable cause

supplied the factual narrative of Appellant’s DUI stop and subsequent flight-

by-vehicle from the scene of the stop.             Id. at 1276-77.   Viewing these

documents as a whole and understanding them to delineate separate

criminal acts, which were later reflected in the trial testimony, see Id. at

1276, the majority held that the Commonwealth established the factual

predicates to avoid merger pursuant to Jenkins.6
____________________________________________


6
   Concurring in the result, Judge Olson departed from the majority’s
reasoning that other records could supply the factual account necessary to
discern that charges were based on separate criminal acts:

       The information charged generically that [defendant] committed
       DUI and fleeing, without specifying when the crimes occurred.
       However, it is clear that Appellant’s post-stop actions constituted
       both a DUI (because Appellant operated his vehicle while
       intoxicated) and fleeing (because Appellant departed from a
       signaled police detention). Because of the generic nature of the
       allegations set forth in the information, I cannot say with
       certainty, as this Court could in Jenkins, that there were two
       separate criminal acts.

(Footnote Continued Next Page)


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      Applying pertinent authority to the present matter, it is apparent from

the criminal information, complaint, and affidavit of probable cause that the

Commonwealth did not allege criminal acts that constituted terroristic

threats as distinct or delineated from the conduct that constituted robbery.

Indeed, the information offers only a generic recitation of the offenses and

the statutory elements of each, while the factual accounts in both the

complaint    and   the      affidavit   of    probable   cause   describe   Appellant’s

“approach” of the complainant and robbery by gunpoint in the next moment

as a seamless event occurring in the course of a theft.

      Unlike in Jenkins and Kimmel, therefore, neither the charging

information nor supporting documents of record describe the operative facts

in such a way as to distinguish the specific conduct underlying the offenses

of robbery and terroristic threats, respectively.            We may not conclude,

therefore, that the offenses were based on two discrete criminal acts for

                       _______________________
(Footnote Continued)

      In reviewing the information in this case, the total lack of facts
      prevents me from concluding that Appellant was charged with a
      DUI, followed by a stop, followed by a charge for fleeing while
      DUI. Nor can I say with certainty that the jury necessarily found
      this version of the events proven beyond a reasonable doubt. In
      the absence of precise allegations (similar to those in Jenkins)
      asserting that Appellant’s DUI offense arose from his pre-stop
      operation of a motor vehicle, it is just as conceivable that the
      Commonwealth charged Appellant with DUI, and fleeing while
      DUI, based entirely on his conduct following the traffic stop by
      [the police officer].

Id. at 1280, 1281 (Olson, J. concurring).



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purposes of avoiding merger at sentencing. Compare Commonwealth v.

Melvin, 548 A.2d 275, 280–281 (Pa.Super. 1988) (terroristic threats did not

merge with robbery where, after defendant completed robbery, he ordered

people remaining in store to get into back room or he would shoot them.

“Although the terroristic threat and the robbery occurred during the same

episode, each act was a separate and distinct injury....”).

      We must, then, turn to the second part of the Section 9765 test and

examine whether all of the statutory elements of terroristic threats as

charged are subsumed by the statutory elements of robbery. We find that

they are.

      Specifically, the relevant elements of terroristic threats comprise the

communication of a threat to commit a crime of violence with the intent to

cause terror. Robbery, as charged in this case, requires threatening serious

bodily injury or intending to place a victim in fear of serious bodily injury.

Though the two statutes do not employ identical words, it would be

championing a distinction without a difference to conclude that threatening

serious bodily injury or intending to cause fear of serious bodily injury was

not the functional equivalent of a threat of violence intended to cause terror.

Particularly where, as here, both offenses arose from the same act, we do

not discern from these statutes the legislative intent to permit separate

sentences.    We must, therefore, reverse judgment of sentence in this

respect, as Appellant’s terroristic threats and robbery convictions merged for

purposes of sentencing.

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      In reviewing whether Appellant’s conviction for REAP merges with his

conviction for robbery, however, a comparison of the respective statutes

leads to the conclusion that each offense requires proof of an element that

the other does not, and, therefore, cannot merge for sentencing purposes.

Indeed, among the elements of REAP is the requirement that the defendant

possessed the “actual present ability to inflict harm.” See Reynolds, supra

at 727-28. This evidentiary burden exceeds that required for robbery under

Section 3701(a)(1)(ii), which only requires proof that the defendant

threatened another with, or intentionally placed a person in fear of,

immediate serious bodily injury whether or not the ability to cause such

injury was actual. Moreover, REAP does not concern itself with the victim’s

state of mind, while robbery under Section 3701(a)(1)(ii) requires proof that

the victim was placed in fear of serious bodily injury.    Appellant’s merger

argument with respect to REAP and robbery is, therefore, unavailing.

      Appellant’s conviction for simple assault, likewise, does not merge with

his Section 3701(a)(1)(ii) robbery conviction when comparing the two

statutes under a Section 9765 analysis.          Appellant’s simple assault

conviction required evidence that he caused or attempted to cause

complainant bodily injury, while his robbery conviction required no proof of

injury or attempted injury but only that he threatened complainant with or

intentionally placed him in fear of serious bodily injury. Conversely, robbery

required proof that the proscribed conduct occurred during the course of a

theft, while simple assault required no such proof.       Between Appellant’s

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robbery and simple assault convictions, where all statutory elements of one

conviction were not contained within the statutory elements of the other, the

trial court properly declined to merge the convictions for purposes of

sentencing.

      Accordingly, we reverse the judgment of sentence for terroristic

threats at count nine, as it merges with robbery at count one. We need not

remand for re-sentencing, however, as we have not upset the sentencing

scheme consisting entirely of concurrent sentences. See Commonwealth

v. Thur, 906 A.2d 552, 570 (Pa.Super. 2006) (holding if appellate court can

vacate illegal sentence without upsetting the trial court’s overall sentencing

scheme, it need not remand for resentencing); Commonwealth v. Klein,

795 A.2d 424, 430-31 (Pa.Super. 2002) (holding “where a case requires a

correction of sentence, this [C]ourt has the option of either remanding for

resentencing or amending the sentence directly.”).           The judgment of

sentence as corrected in this opinion is affirmed in all other respects.

      Convictions affirmed.    Judgment of sentence affirmed in part and

reversed in part. Jurisdiction relinquished.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/29/2016



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