J-S05028-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :    IN THE SUPERIOR COURT OF
                                               :         PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    ANTRON TALLEY                              :
                                               :
                          Appellant            :    No. 1030 WDA 2017

              Appeal from the Judgment of Sentence May 24, 2017
               In the Court of Common Pleas of Allegheny County
              Criminal Division at No(s): CP-02-CR-0001397-2014


BEFORE:      OLSON, J., OTT, J., and STRASSBURGER, J.

MEMORANDUM BY OTT, J.:                                     FILED JULY 09, 2018

        Antron Talley appeals from the judgment of sentence entered May 24,

2017, in the Allegheny County Court of Common Pleas, after a jury convicted

him of assault by prisoner, aggravated assault (attempting to cause or

intentionally, knowingly, or recklessly causing serious bodily injury to a

correctional officer), aggravated assault (attempting to cause or intentionally

or knowingly causing bodily injury to a correctional officer), and simple

assault.1    The trial court imposed an aggregate term of eight to 16 years’

imprisonment. On appeal, Talley contends his sentence is illegal based on the

merger doctrine. Based on the following, we affirm.

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   Retired Senior Judge assigned to the Superior Court.

1  18 Pa.C.S.        §§    2703(a),   2702(a)(2),   2702(a)(3),   and   2701(a)(1),
respectively.
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       In its opinion, the trial court fully and correctly set forth the relevant

facts and procedural history of this case. See Trial Court Opinion, 9/20/2017,

at 1-8. Therefore, we need not restate them herein. Nevertheless, we briefly

note that, on December 19, 2013, Talley, an inmate at the Allegheny County

Jail, physically assaulted the victim, Jason Arlotta, while Arlotta was engaged

in his duties as a correctional officer. See id. at 4.

       On April 18, 2017, Talley was convicted of the above enumerated

offenses. On May 24, 2017, Talley was sentenced as follows: (1) on Count

1, assault by prisoner, he was sentenced to a term of two to four years’

confinement, followed by six years of probation; and (2) on Count 2,

aggravated assault (attempting to cause or intentionally, knowingly, or

recklessly causing serious bodily injury to a correctional officer), he was

sentenced to a consecutive term six to twelve years’ incarceration, followed

by eight years of probation.2 On May 26, 2017, Talley filed a post-sentence

motion, which the trial court denied on July 13, 2017. The next day, Talley

filed this appeal.3

       Talley now raises one issue for our review:


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2 Talley’s two probation sentences are to be served concurrently with each
other. Talley received no further penalty on the remaining two counts.

3  That same day, the trial court ordered Talley to file a concise statement of
errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Following an
extension of time, Talley filed a concise statement on August 17, 2017. The
trial court issued an opinion pursuant to Pa.R.A.P. 1925(a) on September 20,
2017.

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      Did the [trial] court err and/or abuse its discretion when
      sentencing Mr. Talley to consecutive terms on Counts 1 and 2 of
      the information, as both crimes arise from one criminal act and all
      elements of one offense are included in the second offense,
      requiring merger of the charges for sentencing purposes?

Talley’s Brief at 7.   Specifically, Talley argues his sentences for assault by

prisoner and aggravated assault (attempting to cause or intentionally,

knowingly, or recklessly causing serious bodily injury to a correctional officer)

should merge for sentencing purposes. Id. at 15-21.

      “When reviewing the legality of a sentence, our standard of review is de

novo and our scope of review is plenary.” Commonwealth v. Seskey, 170

A.3d 1105, 1107 (Pa. Super. 2017).

      Merger of sentences is controlled by 42 Pa. C.S. § 9765:

      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. § 9765. “Accordingly, 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.”     Commonwealth v. Kimmel, 125 A.3d

1272, 1276 (Pa. Super. 2015) (en banc) (citation omitted).

      As noted above, Talley was convicted and sentenced of assault by

prisoner and aggravated assault. Assault by prisoner is defined in 18 Pa.C.S.

§ 2703(a):


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       A person who is confined in or committed to any local or county
       detention facility, jail or prison or any State penal or correctional
       institution or other State penal or correctional facility located in
       this Commonwealth is guilty of a felony of the second degree if
       he, while so confined or committed or while undergoing
       transportation to or from such an institution or facility in or to
       which he was confined or committed intentionally or knowingly,
       commits an assault upon another with a deadly weapon or
       instrument, or by any means or force likely to produce serious
       bodily injury. A person is guilty of this offense if he intentionally
       or knowingly causes another to come into contact with blood,
       seminal fluid, saliva, urine or feces by throwing, tossing, spitting
       or expelling such fluid or material when, at the time of the offense,
       the person knew, had reason to know, should have known or
       believed such fluid or material to have been obtained from an
       individual, including the person charged under this section,
       infected by a communicable disease, including, but not limited to,
       human immunodeficiency virus (HIV) or hepatitis B.

       Aggravated assault of a correctional officer is defined pursuant to 18

Pa.C.S. § 2702(a)(2):

       A person is guilty of aggravated assault if he . . . attempts to cause
       or intentionally, knowingly or recklessly causes serious bodily
       injury to any of the officers, agents, employees or other persons
       enumerated in subsection (c) or to an employee of an agency,
       company or other entity engaged in public transportation, while in
       the performance of duty[.]

18 Pa.C.S. § 2702(a)(2).4          Additionally, 18 Pa.C.S. § 2301 provides the

following definitions of phrases pertinent to Sections 2702 and 2703:

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4   Moreover, we note Subsection 3702(c)(9) states, in relevant part:

       The officers, agents, employees and other persons referred to in
       subsection (a) shall be as follows: . . .

          (9) Officer or employee of a correctional institution, county
          jail or prison, juvenile detention center or any other facility



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       “Bodily injury.” Impairment of physical condition or substantial
       pain.

       “Deadly weapon.” Any firearm, whether loaded or unloaded, or
       any device designed as a weapon and capable of producing death
       or serious bodily injury, or any other device or instrumentality
       which, in the manner in which it is used or intended to be used, is
       calculated or likely to produce death or serious bodily injury.

       “Serious bodily injury.”        Bodily injury which creates a
       substantial risk of death or which causes serious, permanent
       disfigurement, or protracted loss or impairment of the function of
       any bodily member or organ.

18 Pa.C.S. § 2301.

       After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinion of the Honorable Beth

A. Lazzara, we conclude that Talley’s issue merits no relief. The trial court

opinion comprehensively discusses and properly disposes of this question:

       While the two offenses arose from the same criminal act, the
       offenses were not subject to merger at sentencing because all of
       the statutory elements of Assault by Prisoner offense are not
       included within the statutory elements of Aggravated Assault, or
       vice versa. See 42 Pa. C.S. §9765. To be sure, the crime of
       Assault by a Prisoner under §2703(a) requires the defendant to
       be a prisoner, but Aggravated Assault — attempting to
       cause/causing serious bodily injury to an enumerated person
       under §2702(a)(2), does not require the defendant to be a
       prisoner. The Assault by a Prisoner statute also does not require
       that the assault be committed upon an enumerated person; for
       example, the offense can be established if the assault is
       committed upon another inmate. On the other hand, Aggravated
____________________________________________


          to which the person has been ordered by the court pursuant
          to a petition alleging delinquency under 42 Pa.C.S. Ch. 63
          (relating to juvenile matters).

Id. § 2702(c)(9).

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       Assault under §2702(a)(2), requires that the assault be
       committed or attempted on an enumerated person. Thus, the
       Assault by a Prisoner statute focuses on the [d]efendant’s status
       as a prisoner, while Aggravated Assault under §2702(a)(2)
       focuses on the victim’s status as an “enumerated person” under
       §2702(a)(2) and §2702(c). Moreover, Aggravated Assault under
       §2702(a)(2) can be established with a mere attempt, while
       Assault by a Prisoner requires a defendant to actually commit the
       assault.

       Although [Talley] cites the recent case of Commonwealth v.
       Shawn Brown, 159 A.3d 531 (Pa. Super. 2017),[5] in support of
       his merger argument, nothing about that case, or its holding,
       alters the conclusion that Assault by a Prisoner under §2703 and
       Aggravated Assault under §2702(a)(2) do not merge at
       sentencing. Indeed, the Brown case simply held that the offenses
       of Rape of a Child (18 Pa. C.S.A. §3121(c)) and Involuntary
       Deviate Sexual Intercourse with a Child (18 Pa. C.S.A. §3123(b)),
       merged for sentencing purpose when they are based on one
       underlying act of oral sex. Brown, supra, at 533-34. In reaching
       this conclusion, the Superior Court still analyzed the offenses
       pursuant to the merger statute set forth in 42 Pa.C.S.A. §9765.
       Id. at 532-33.

       Accordingly, because all of the statutory elements of Assault by a
       Prisoner are not included within the statutory elements of
       Aggravated Assault under §2702(a)(2), the offenses were not
       subject to merger for purposes of sentencing, and the Defendant’s
       challenge to the legality of his sentence is without merit.




____________________________________________


5 Talley cites to this same case in his appellate brief. See Talley’s Brief at
24.




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Trial Court Opinion, 9/20/2017, at 24-26 (some internal quotation marks

omitted).6 Accordingly, with respect to Talley’s sole issue on appeal, we affirm

this issue on the basis of the trial court’s opinion.7

       Judgment of sentence affirmed.

       Judge Strassburger joins the memorandum.

       Judge Olson concurs in the result.




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6 In his statement of questions presented, Talley asked whether the trial court
“abuse[d] its discretion” with respect to his sentencing. Talley’s Brief at 7. At
the beginning of his argument and in his conclusion, Talley repeats this
phrase. Id. at 15, 23. However, except for these passing references, Talley
presents no argument that the trial court abused its discretion when imposing
his sentence, and his argument is limited to the legality of his sentence. See
generally id. The Pennsylvania Supreme Court has stated:

       where an appellate brief fails to provide any discussion of a claim
       with citation to relevant authority or fails to develop the issue in
       any other meaningful fashion capable of review, that claim is
       waived. It is not the obligation of this Court, even in a capital
       case, to formulate [a]ppellant’s arguments for him.

Commonwealth v. Johnson, 985 A.2d 915, 924 (Pa. 2009), cert. denied,
562 U.S. 906 (2010). As Talley fails to cite any applicable law in support of
his contention or to develop any additional argument, any challenge to the
discretionary aspects of his sentence does not merit relief. Assuming Talley
had presented a developed argument that the trial court abused its discretion
in imposing sentence, his claim would still collapse because he did not properly
preserve this challenge by failing to include a concise statement of the reasons
relied upon for allowance of appeal in his brief. See Pa.R.A.P. 2119(f);
Commonwealth v. Sauers, 159 A.3d 1, 15–16 (Pa. Super.), appeal denied,
170 A.3d 1057 (Pa. 2017).

7   Although Talley raised additional claims regarding his Pa.R.Crim.P. 600
motion and motion to amend information, he has abandoned these issues by
failing to raise them in his appellate brief. See Johnson, supra.

                                           -7-
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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/9/2018




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