J-S74044-16


    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA

                  v.


    DAVID BRACETTY

                       Appellant               :   No. 2655 EDA 2015

               Appeal from the Judgment of Sentence August 21, 2015
                In the Court of Common Pleas of Philadelphia County
                Criminal Division at No(s): CP- 51 -CR- 0012080 -2014


BEFORE:        OTT, RANSOM, JJ., STEVENS, P.J.E.*

MEMORANDUM BY RANSOM, J.:                             FILED NOVEMBER 08, 2016

         David    Bracetty appeals from the August 21, 2015 judgement of

sentence imposed following         a   non -jury trial finding him guilty of robbery,

theft by unlawful taking, receiving stolen property and simple assault.             1   The

trial    court imposed     a   sentence of two       and   one -half to     five years'

incarceration, followed by two years' probation for robbery to run concurrent

with two five -year terms of probation imposed for theft by unlawful taking

and receiving stolen property. We affirm in part and vacate in part.

         We briefly summarize the relevant facts and procedural history as

follows.       On August 8, 2014, around       6:00 p.m., Appellant's ex- girlfriend

( "the   Victim ") was standing on the corner with their three -year -old daughter

and      a   friend.   See Notes of Testimony, 5/29/2015, at              7 -8   ( "N.T.   ").



1   Respectively, 18 Pa.C.S. §§ 3701(a)(1)(iv), 3921(a), 3925(a), 2701(a).


*Former Justice specially assigned to the Superior Court.
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Appellant approached the Victim and did not want the Victim's friend to go

into the apartment. See N.T. at 10. The Victim was on her cellphone at the

time. See    id.   at 7 -8. Appellant "became belligerent and started grabbing at

[the Victim's cellphone]."     Id.   at 8, 21. Appellant "hit the Victim in the face

with the [electronic] tablet he was holding and continued to grab at her

phone." Trial Ct. Op., 03/22/2016, at 2; N.T. at           7 -9, 20.   The Victim hung

up her call and proceeded to dial 911.           See Trial Ct. Op., 03/22/2016, at 2;

N.T. at 10, 21.      As the Victim was on the phone with the police, Appellant

"eventually overpowered her and took her cellphone."                    Trial Ct. Op.,

03/22/2016, at 3.        Thereafter, according to the Victim, she lay on the

ground in   a   fetal position, and Appellant kicked her in the stomach two or

three times. See Trial Ct. Op., 03/22/2016, at 3; N.T. at 11.

      Around 7:34 p.m., the Victim provided an "informative" statement to

Officer Silva, who prepared          a   domestic violence report to document the

incident.   See N.T. at 24, 27 -28, 29 -32; Official Domestic Violence Rpt.,

8/8/14.     The report indicates that the Victim did not report any specific

injuries and that she did not have any "visible injury" at that time.           Id.   at

33.

      The Victim's mother testified that Appellant took two bricks and broke

her car and house windows between 6:00 and 7:00 p.m. on the same




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evening. See id. at 38 -39,         47.2   Around 9:00 p.m., Officer Semet received

a   call about "a person with   a   gun" in the mother's neighborhood.        Id.   at 54.

When he arrived, the mother approached the Officer and reported Appellant

for breaking the windows.       Id.    at 53.       Officer Semet located Appellant two

blocks away from the mother's house and placed him under arrest.                    Id.   at

55.   When searched, Appellant did not have the Victim's cellphone.                 Id.   at

55 -56.     "The Victim never recovered her cellphone."                 Trial Ct. Op.,

3/22/2016, at   3.

       Around 12:15 a.m., on August 9, 2014, Detective King interviewed the

Victim, at which time he observed          a   bite mark on the Victim's breast, as well

as scrapes and bruises on her feet and arms, apparently suffered during the

earlier incident with Appellant. See id. at 56 -60.3

       According to Appellant, the Victim embellished her story. He testified

that he had moved out of Victim's apartment four days before the incident

and that he approached the Victim because he wanted to go to the store

with his three -year -old daughter.             Id.   at 78, 83 -84.   The trial judge,

however, found the Victim's story more credible. N.T. at 85. Appellant was


2 According to the mother, Appellant "was staying with [the Victim] in the
apartment but they were fighting all of the time." N.T. at 45. Despite
Appellant's objection based on inconsistencies in the mother's story, the trial
judge allowed the testimony. See id. at 48.

3 Contrary to his normal practice, Detective King did not photograph the
Victim's injuries, nor did he record his observations in his report. See id. at
57, 59.


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convicted of robbery, theft by unlawful taking, receiving stolen property, and

simple assault. Sentencing occurred on August 21, 2015.

        On August 28,       2015, Appellant pro se filed an appeal from the

judgment of sentence without consulting counsel.                  Unaware of the appeal,

trial counsel filed   a   motion for reconsideration of sentence on August 31,

2015.

        On October 30, 2015, Appellant         timely filed   a   court -ordered Pa.R.A.P.

1925(b) statement, challenging the sufficiency and weight of the evidence.

On   January    7,    2016,   the trial   court denied Appellant's motion for

reconsideration      of sentence.     See Trial Ct.           Order,    1/7/2016 (citing

Pa.R.Crim.P. 720(B)(3)(c) (denying post- sentence motion by operation of

law after one hundred and twenty days)).4

        In this Court, Appellant filed an application to quash the pending, pro

se appeal and        remand to preserve sentencing issues.               See Appellant's

Application for Remand, 1/12/2016. This Court denied the petition without

prejudice as to Appellant's right to raise additional issues in           a   supplemental



4  We accept his appeal as properly filed on January 7, 2016.            See
Commonwealth v. Cooper, 27 A.3d 994, 1008 (Pa. 2011). ( "The merely
premature pro se appeal did not divest the trial court of jurisdiction to act
upon the timely post- sentence motion later filed by appellee's own counsel
in accordance with Criminal Rule 720(A). ").     "Under the circumstances,
where the proper, counseled appeal was quashed administratively, the
subsequently- assigned Superior Court panel should have treated the
premature appeal as if it had been filed after denial of the post- sentence
motion in accordance with Pa.R.A.P. 905(a)(5)." Id. at 1008.


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Pa.R.A.P.      1925(b) statement.          See Sup. Ct. Order, 2655 EDA 2015,

2/3/2016.         Subsequently, Appellant filed an amended Pa.R.A.P. 1925(b)

statement, further preserving          a   challenge to discretionary aspects of his

sentence. The trial court filed    a   responsive opinion on March 22, 2016.5

         Appellant contends that the trial court should not have imposed

separate sentences on the theft and robbery charges because they arose out

of the same incident and because the theft charges should have merged with

robbery.       See Appellant's Brief at 8 -9.      Specifically, Appellant raises the

following issue:

         Did the trial court err when it failed to merge the robbery and
         theft convictions for purposes of sentencing and thus the
         sentences imposed on the theft convictions are illegal and must
         be vacated?

Appellant's brief at 2.

         "A claim that crimes should have merged for sentencing purposes

raises   a   challenge to the legality of the sentence. Therefore, our standard of

review    is de   novo and our scope of review is plenary." Commonwealth v.

Cianci, 130 A.3d 780, 782 (Pa. Super. 2015) (quoting Commonwealth v.

Quintua,      56 A.3d 399, 400 (Pa. Super. 2012), appeal denied, 70 A.3d 810

(Pa. 2013) (citation      omitted)). "[W]here      a   case requires   a   correction of   a


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



5Appellant has abandoned the issues preserved in his amended Pa.R.A.P.
1925(b) statement.


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or amending the sentence directly." Commonwealth v. Walls, 449 A.2d

690, 696 (Pa. Super. 1982).

      We discern two errors in Appellant's sentence.       First, "the statutory

definitions of the crimes of theft and receiving render it logically impossible

that one person be both the thief and receiver of the same item[.]"

Commonwealth       v. Tesse/, 500 A.2d 144, 151 (Pa. Super. 1985) (citing

Commonwealth v. Simmons, 36 A.2d 624, 631               (Pa. Super. 1975)).    A

person may be charged with violating Sections 3921(a) and 3925(a) based

on a single criminal act, however, "a      judgment of sentence can only be

imposed on one or the other." Simmons, 336 A.2d at 631; see 18 Pa.C.S.

§§ 3921(a), 3925(a).6

      Here, the trial court imposed concurrent, five -year terms of probation

for theft by unlawful taking and receiving stolen property.7      Based on the

facts of this case, it is clear that Appellant took unlawful control of the


6 Theft by unlawful taking occurs when the accused "takes, or exercises
unlawful control over, movable property of another with intent to deprive
him thereof." 18 Pa.C.S. § 3921(a). Receiving stolen property occurs when
a person "intentionally receives, retains, or disposes of moveable property of
another knowing that it has been stolen." Id. at § 3925 (defining
"receiving" as acquiring possession).

7In support of the theft by unlawful taking charge, the trial court states "it is
absolutely clear from Victim's testimony that Appellant unlawfully took her
cell phone without her permission." Trial Ct. Op., 3/22/2016, at 6. In
support of the receiving stolen property charge, the trial court states "it is
absolutely clear that Appellant received and retained the Victim's cell phone
without intent to return it to her and he had knowledge that the cell phone
was stolen." Id. at 5 -6.


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Victim's cellphone.          However, the fact that Appellant stole the phone

precludes the imposition of           a   sentence for the crime of receiving stolen

property.        See Simmons, 336 A.2d at 631; Tessel, 500 A.2d at 151.

Accordingly, the trial court erred and we vacate that the portion of

Appellant's sentence imposed for receiving stolen property.

      Second, Appellant's merger claim has merit.             To determine whether

convictions merge for sentencing purposes, we apply the following test:

"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. Jenkins, 96 A.3d 1055, 1056                    (Pa. Super.

2014) (citing 42 Pa.C.S.        §    9765); Commonwealth v. Baldwin, 985 A.2d

830, 833 (Pa. 2009); Commonwealth v. Payne, 868 A.2d 1257, 1263 (Pa.

Super. 2005).       If merger   is   appropriate under the elements based approach,

the higher -graded offense subsumes the lower- graded offense for sentencing

purposes.        See Cianci, 130 A.3d at 782; Commonwealth v. Coppedge,

984 A.2d 562, 564 (Pa. Super. 2009) (citing 42 Pa.C.S.A.          §   9765).

      Here, the trial court addressed the sufficiency of evidence regarding

the theft in the following manner:

      In review of the evidence, it is absolutely clear from [the]
      Victim's testimony that Appellant unlawfully took her cell phone
      without permission. He forcibly took the phone from her during
      a physical altercation. The Victim never had the phone returned
      to her.


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Trial Ct. Op. at 6. Regarding the robbery, the trial court noted:

      In review of the evidence, it is absolutely clear that Appellant in
      the course of committing a theft, inflicted bodily injury on the
      Victim and physically removed her phone by force. The Victim
      testified that during the altercation with ... Appellant, ... Appellant
      proceeded to hit the Victim with a tablet while he was grabbing
      for her phone.

Id. at    5   (discussing, thereafter, additional evidence supporting Appellant's

separate conviction for simple assault).          Based        upon the trial court's

description of the evidence sufficient to convict Appellant of these two

crimes, we conclude that these crimes arise from           a   single criminal act, thus

satisfying the first criterion of the merger test. Jenkins, 96 A.3d at 1056.

         In our view, the elements -based criterion of the merger test is also

satisfied. To satisfy this criterion, we must "focus[] solely on the elements

of the offenses for which     a   criminal defendant has been convicted." Id. at

1058. Here, Appellant was convicted of robbery, graded as               a   felony of the

second degree.

      A person is    guilty of robbery if, in the course of committing a
      theft, he ...    inflicts bodily injury upon another or threatens
         another with or intentionally puts him in fear of immediate bodily
         injury.

18 Pa.C.S. §     3701(a)(1)(iv) (emphasis added); see Cianci, 130 A.3d at 782

( "relevant    question in merger analysis now    is   whether person can commit

one crime without also committing other crime and vice -versa, regardless of

whether crimes arose from same set of facts. ").                  Appellant was also

convicted of theft by unlawful taking, graded as       a   first -degree misdemeanor.


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        A person is  guilty of theft if he unlawfully takes, or exercises
        unlawful control over, movable property of another with intent to
        deprive him thereof.

Id. at    §   3921(a).   We conclude that the statutory elements of    "theft by

unlawful taking," as defined in Section 3921(a), are necessary to establish

the relevant statutory element of robbery, i.e., "in the course of committing

a   theft."   18 Pa.C.S. §   3701(a)(1)(iv).

        For these reasons, Appellant's conviction for   theft by unlawful taking

must merge for sentencing purposes into           his   conviction for robbery.

Accordingly, we vacate that portion of Appellant's sentence imposed for theft

by unlawful taking.8

        Judgment of sentence for robbery affirmed.      Judgments of sentence

for receiving stolen property and theft by unlawful taking vacated.




8
  The Commonwealth asserts that Appellant "committed at least six separate
acts of criminal violence against [the Victim] when he stole her cell phone.
Commonwealth's Brief at 7.         According to the Commonwealth, these
separate acts preclude merger in Appellant's case. Id. at 8. We disagree.
Appellant's robbery and theft charges arise from a single act of thievery
during which Appellant inflicted bodily injury upon the Victim. To the extent
Appellant committed additional acts of violence, such acts are irrelevant to
our merger analysis, as made clear by the trial court opinion. See Trial Ct.
Op. at 5 -6 (discussing the sufficiency of evidence for robbery and theft), 7
(discussing the sufficiency of the evidence for simple assault).


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Judgment Entered.




J: sephD. Seletyn,
Prothonotary


Date: 11/8/2016




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