J-A04001-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT
                                                               OF
                                                          PENNSYLVANIA
                             Appellee

                        v.

    NATASHA MARIE STOVER

                             Appellant                   No. 839 MDA 2017


          Appeal from the Judgment of Sentence imposed April 27, 2017
                   In the Court of Common Pleas of York County
                Criminal Division at No: CP-67-CR-0004644-2015


BEFORE: STABILE, NICHOLS, AND RANSOM,* JJ.

MEMORANDUM BY STABILE, J.:                               FILED APRIL 23, 2018

        Appellant, Natasha Marie Stover, appeals from the judgment of

sentence imposed on April 27, 2017 in the Court of Common Pleas of York

County following her entry of a guilty plea to criminal conspiracy to commit

homicide and related offenses. Appellant contends the trial court abused its

discretion in imposing its sentence. Appellant also contends the trial court

erred in imposing sentences for two inchoate crimes. Following review, we

affirm.

        In its Rule 1925(a) opinion, the trial court provided the following factual

background:



____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
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       On and between December 1, 2014 and April 19, 2015,
       [Appellant] and her co-defendant (and boyfriend at the time)
       Marcus Bordelon (“Bordelon”) agreed and planned to murder
       Samantha Young (“Young”). In April 2015, Marcus Bordelon
       murdered Young, who was his ex-girlfriend and mother of his
       young child. Although Appellant was not present at the killing,
       her text messages with Bordelon indicated that she had wanted
       to be there. Evidence included test messages exchanged between
       Appellant and Bordelon on and between the above dates which
       extensively detailed the plot to kill Samantha Young as well as
       James Horn (“Horn”).2 Appellant had bought a bag of lime for the
       murder, and after Young’s murder, Appellant moved Young’s car.
          2
            James Horn was the victim’s boyfriend at the time of the murder. The
          text messages between Bordelon and Stover first discussed planning
          James Horn’s murder. However, this was not accomplished despite their
          extensive planning. It should be noted that James Horn was not
          murdered and is not a victim in this case.

Trial Court Rule 1925(a) Opinion, 7/14/17, at 1 (additional footnote omitted).

       The trial court summarized the procedural background as follows:

       Appellant pled guilty to one count conspiracy to commit criminal
       homicide, one count obstructing the administration of law and one
       count criminal conspiracy to obstruct the administration of law.
       For this case, Appellant was sentenced to twelve years and six
       months to twenty-five years incarceration with twelve (12)
       months probation to run consecutive to the prison sentence.

Id. at 2.1

       Appellant filed a timely appeal from her judgment of sentence. Both

Appellant and the trial court complied with Pa.R.A.P. 1925. Appellant now

asks us to consider two issues in this appeal:

____________________________________________


1 On the obstruction and conspiracy to commit obstruction counts, the trial
court imposed identical sentences of 12 months’ probation, noting that the
sentences would run concurrently with each other but consecutive to
Appellant’s sentence for conspiracy to commit homicide. Notes of Testimony
(“N.T.”), Sentencing, 4/27/17, at 63-64.

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      1. Whether the lower court abused its discretion at the time of
         sentencing?

      2. Whether the lower court erred/abused its discretion when it
         sentenced [Appellant] to 12 months probation on the criminal
         conspiracy to obstruct consecutive to the criminal conspiracy
         to commit a homicide charge?

Appellant’s Brief at 4.

      Appellant’s first issue presents a challenge to the discretionary aspects

of sentence. “A challenge to the discretionary aspects of sentencing is not

automatically reviewable as a matter of right.” Commonwealth v. Grays,

167 A.3d 793, 815 (Pa. Super. 2017) (citation omitted). Before we can reach

the merits of a discretionary aspects challenge,

      [w]e conduct a four part analysis to determine: (1) whether
      appellant has filed a timely notice of appeal, see Pa.R.A.P. 902
      and 903; (2) whether the issue was properly preserved at
      sentencing or in a motion to reconsider and modify sentence, see
      [Pa.R.Crim.P. 720]; (3) whether appellant's brief has a fatal
      defect, Pa.R.A.P. 2119(f); and (4) whether there is a substantial
      question that the sentence appealed from is not appropriate under
      the Sentencing Code, 42 Pa.C.S.A. § 9781(b).

Id. at 815-16 (quoting Commonwealth v. Evans, 901 A.2d 528, 533 (Pa.

Super. 2006) (citations omitted)).    Here, Appellant filed a timely notice of

appeal, satisfying the first prong of the test.    However, Appellant has not

satisfied the second prong of the test.

      A review of the docket reveals that Appellant did not file any post-

sentence motions. Further, a review of the sentencing transcript reveals that

the issue was not properly preserved at sentencing. As this Court reiterated



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in Commonwealth v. Griffin, 65 A.3d 932 (Pa. Super. 2013), “[i]ssues

challenging the discretionary aspects of a sentence must be raised in a post-

sentence motion or by presenting the claim to the trial court during the

sentencing proceedings. Absent such efforts, an objection to a discretionary

aspect of a sentence is waived.”      Id. at 936 (quoting Commonwealth v.

Lamonda, 52 A.3d 365, 371 (Pa. Super. 2012) (emphasis in original)

(additional citation omitted).     Because Appellant failed to preserve a

discretionary aspects of sentence issue either in a post-sentence motion or at

the time of sentencing, she was waived her discretionary aspects of

sentencing issue on appeal.

      In her second issue, Appellant challenges the legality of the sentence

for criminal conspiracy to obstruct that the trial court imposed consecutive to

the sentence for criminal conspiracy to commit homicide.           Unlike the

discretionary aspects of sentence issues, a challenge to the legality of

sentence can never be waived. See, e.g., Commonwealth v. Kline, 166

A.3d 337, 340 (Pa. Super. 2017) (citation omitted).

      “Issues relating to the legality of a sentence are questions of law. Our

standard of review over such questions is de novo and our scope of review is

plenary.” Id. at 340-41 (quoting Commonwealth v. Wolfe, 106 A.3d 800,

802 (Pa. Super. 2014), aff’d, 140 A.3d 651 (Pa. 2016) (parentheses, ellipses

and additional citations omitted)).




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      Appellant’s legality of sentence issue is based on 18 Pa.C.S.A. § 906,

which provides that “[a] person may not be convicted of more than one of the

inchoate crimes of criminal attempt, criminal solicitation or criminal conspiracy

for conduct designed to commit or culminate in the commission of the same

crime.”    Appellant argues that “[t]he charge for criminal conspiracy

Obstruction was part of the Criminal Conspiracy to commit homicide.”

Appellant’s Brief at 50. We disagree.

      In Commonwealth v. Welch, 912 A.2d 857 (Pa. Super. 2006), this

Court addressed a similar challenge to imposition of sentences for two

inchoate crimes: attempted murder and conspiracy to commit robbery.

Rejecting Welch’s argument, we explained:

      “Section 906 was designed to prevent multiple inchoate charges
      that carry with them the same criminal intent.” Commonwealth
      v. Davis, 704 A.2d 650, 653 (Pa. Super. 1997). Under section
      906, “inchoate crimes merge only when directed to the
      commission of the same crime, not merely because they arise out
      of the same incident.” Commonwealth v. Graves, 510 Pa. 423,
      508 A.2d 1198 (1986) (emphasis added).                 See, e.g.,
      Commonwealth v. Brown, 336 Pa. Super. 628, 486 A.2d 441,
      445 (finding that appellant’s sentences for attempted burglary and
      conspiracy to commit burglary violate section 906, because they
      arise from conduct directed to the commission of the same crime);
      Commonwealth v. Ford, 315 Pa. Super. 281, 461 A.2d 1281,
      1289 (1983) (stating that appellant’s sentences for attempted
      murder, conspiracy to commit murder and possession of an
      instrument of crime are barred under section 906, because the
      facts of the case demonstrated “that the offenses were
      perpetrated with one objective in mind-the (attempted) killing” of
      the victim).

Id. at 859. Further,




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      the attempt to commit murder and conspiracy to commit robbery
      are independent crimes, each with their own separate factual
      basis and criminal purpose; that is, the objective of the attempted
      murder was to kill Mondragon while the objective of the conspiracy
      was to steal an ATV. Therefore, the trial court did not violate
      section 906 when it sentenced Welsh for both the conspiracy to
      commit robbery and attempted murder. See Commonwealth v.
      Waters, 255 Pa. Super. 107, 386 A.2d 159, 159-60 (1978)
      (finding that sentences for conspiracy to commit burglary/theft
      and attempted murder do not violate section 906 where the
      appellant burglarized a residence and attempted to murder an
      occupant within that residence).

Id.

      Similarly, Appellant’s convictions for criminal conspiracy to commit

murder and criminal conspiracy to obstruct represent independent crimes,

each with its own factual basis and criminal purpose. At its most basic level,

Appellant’s conviction for conspiracy to commit murder involved the planning

of Samantha Young’s murder.       Her conviction for conspiracy to obstruct

involved actions taken after the murder was committed in an attempt to

conceal and/or alter evidence relating to the murder.

      The distinction between the two crimes is apparent from a reading of

relevant portions of the information filed in this case on August 19, 2015. The

three counts to which Appellant entered a guilty plea and for which she was

sentenced were Count 2, 5 and 6, which read as follows:

      COUNT 2: CRIMINAL CONSPIRACY TO MURDER IN THE FIRST
      DEGREE[,] 18 Pa.C.S.A. 903(a)(1) 18 Pa.C.S.A. 2502(a) -- Felony
      1st DEGREE
      The Actor, with the intent of promoting or facilitating the
      commission of a crime, conspired and agreed with another person
      or persons, specifically Marcus James Bordelon that they or one
      or more of them would engage in conduct which constituted a

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     crime or an attempt to commit the crime of MURDER IN THE FIRST
     DEGREE, and said defendant or other persons did commit an act
     in furtherance thereof.

     COUNT 5: OBSTRUCTING ADMINISTRATION OF LAW OR OTHER
     LAW ENFORCEMENT[,] 18 Pa.C.S.A. 5101 -- Misdemeanor 2nd
     DEGREE
     The Actor intentionally obstructed, impaired or perverted the
     administration of law or other governmental function by force,
     violence, physical interference or obstacle, breach of official duty,
     or any other unlawful act, namely, by acting to conceal and/or
     alter evidence in the death of Samantha Marie Young.

     COUNT     6:   CRIMINAL      CONSPIRACY     to    OBSTRUCTING
     ADMINISTRATION OF LAW OR OTHER LAW ENFORCEMENT[,] 18
     Pa.C.S.A. 903(a)(1) 18 Pa.C.S.A. 5101 -- Misdemeanor 2nd
     DEGREE
     The Actor, with the intent of promoting or facilitating the
     commission of a crime, conspired and agreed with another person
     or persons, specifically Marcus James Bordelon, that they or one
     or more of them would engage in conduct which constituted a
     crime or an attempt to commit the crime of OBSTRUCTING
     ADMINISTRATION OF LAW OR OTHER LAW ENFORCEMENT, and
     said defendant or other persons did commit an act in furtherance
     thereof.

Information, 8/19/15, at 1-2.

     Appellant’s convictions of conspiracy to commit homicide and conspiracy

to obstruct related to separate crimes and Section 906 does not preclude the

imposition of sentences for independent crimes. Welch, supra. Therefore,

the trial court did not violate Section 906, and consequently did not commit

error of law, when it sentenced Appellant for both conspiracy to obstruct and

attempted homicide.

     Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 04/23/18




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