J-A05002-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    STEPHON LAVAUGHN HARDIK                    :
                                               :
                       Appellant               :   No. 16 WDA 2019

       Appeal from the Judgment of Sentence Entered December 4, 2018
    In the Court of Common Pleas of Erie County Criminal Division at No(s):
                          CP-25-CR-0003527-2017


BEFORE:      BENDER, P.J.E., BOWES, J., and PELLEGRINI, J.*

MEMORANDUM BY BENDER, P.J.E.:                              FILED MAY 13, 2020

        Appellant, Stephon Lavaughn Hardik, appeals from the judgment of

sentence of an aggregate term of 54-108 months’ incarceration, followed by

7 years’ probation, imposed following his conviction for multiple drug-related

offenses related to his manufacturing of methamphetamines.            Appellant

contests the sufficiency of the evidence supporting his convictions, as well as

the decision by the trial court to admit evidence of a presumptive drug test of

a substance obtained during a controlled buy.          He also presents several

challenges to his sentence and, relatedly, in a joint motion with the

Commonwealth, he requests that we remand for resentencing. After careful

review, we affirm with respect to Appellant’s sufficiency and evidentiary




____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
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issues.   However, we must vacate Appellant’s judgment of sentence and

remand for resentencing.

      The trial court summarized the procedural history of this case and the

facts adduced at Appellant’s jury trial as follows:

      In early 2017, the Pennsylvania Office of the Attorney General
      (“AG”) received information from a source that methamphetamine
      was being manufactured at Appellant’s residence … in Erie,
      Pennsylvania. The AG’s office and local law enforcement began
      conducting surveillance and spot checks on the property. During
      the surveillance, vehicles were observed pulling up to the
      residence, picking up Appellant, leaving the property, and
      returning with Appellant approximately two to four minutes later.

      On or about July 23, 2017, the AG’s office arranged for a
      controlled buy between Appellant and a confidential informant
      (“CI”), [“MSB”]. That day, [MSB] contacted Appellant by phone
      and asked to purchase methamphetamine, telling Appellant to
      meet her in the McDonald’s parking lot. Law enforcement agents
      followed [MSB] to McDonald’s and parked close by.             Law
      enforcement observed Appellant arrive by vehicle, park beside
      [MSB], exit his vehicle, enter [MSB]’s vehicle, exit [her] vehicle,
      and leave the parking lot. Agents from the AG’s office followed
      [MSB] back to the AG’s office where she handed over a baggie
      containing a “white powdered chunk” that was field[-]tested and
      came up positive for the presumptive presence of
      methamphetamine. Meanwhile, local law enforcement followed
      Appellant’s vehicle[,] which returned back to [his] residence….

      On or about July 27, 2017, the AG’s office secured a search
      warrant for Appellant’s home…. Appellant and his girlfriend, [KW],
      were inside the home at the time the search warrant was
      executed. Upon searching the garage, agents discovered a hidden
      sliding door and false rear wall. The agents found [Richard] Grassi
      in the hidden room, which contained sleeping quarters, a small
      coffee table, and a closed circuit television monitor broadcasting
      a live stream of a security camera located inside a fence on the
      property.

      The AG special operations group, with assistance from the
      Pennsylvania State Police Clandestine Lab Team, conducted a


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        search of the premises. Multiple surveillance cameras were found
        in and around the residence. In the garage, agents found four
        suspected one-pot bottles and one suspected one-pot in a baggie;
        [prilled] ammonium nitrate…; three boxes and eighteen empty
        blister packs of pseudoephedrine cold medication; drain cleaner
        containing lye; empty lithium battery packages and strips of
        lithium; crushed camp fuel containers and a receipt for camp fuel;
        used coffee filters; tubing; a pipe cutter and pliers; an air purifying
        respirator; and two cell phones. In the attic of the residence,
        agents found Appellant’s wallet and driver’s license; clear liquid
        organic solvents; tubing; funnels; a gas can; a glass vase; a bottle
        containing muriatic acid; plastic pop bottles; used coffee filters; a
        receipt for allergy medication; [and] three cell phones. Two
        plastic containers containing suspected methamphetamine,
        marijuana, and glass smoking pipes were also located in the attic.
        In the basement, agents found a food processor; allergy
        medication; ammonium nitrate prills; containers of lye; a gas can;
        containers of tubing; used coffee filters; glassware and
        plasticware containing residue; glass pipes; small baggies; a
        funnel; a smoking bong; and pipe cutters, pliers[,] and vice
        grips[.] Plastic containers containing small white chunks of
        residue and a bag of marijuana [were] also found in the
        basement.2
           2 The Commonwealth presented the testimony of Brett A.
           Bailor, a forensic scientist with the Erie Regional Crime
           Laboratory. Mr. Bailor was qualified as an expert witness
           without objection by Appellant. Mr. Bailor provided
           extensive testimony regarding the results of testing on the
           evidence recovered from Appellant’s home. The test results
           revealed the presence of methamphetamine as well as other
           solvents and residue used in the manufacture of
           methamphetamine.

        Appellant was arrested on-site. After he was placed in the back
        of the patrol car, Agent Heather Dunkle of the AG’s office
        approached Appellant and asked if there were any safety concerns
        within the residence such as dangerous chemicals or active one-
        pots. Appellant first responded in the negative; however, upon
        receiving his [Miranda[1]] rights and Agent Dunkle informing him
        [that] items indicative of methamphetamine manufacturing had

____________________________________________


1   Miranda v. Arizona, 384 U.S. 436 (1966).

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     been seen inside the residence, Appellant admitted there was one
     active one-pot.

     On October 11, 2018, after a trial by jury, Appellant was convicted
     of Operating a Methamphetamine Lab; Unlawful Delivery or
     Unlawful Manufacturing; Possession of Liquefied Ammonia Gas,
     Precursors and Chemicals; Possession (methamphetamine); and
     Possession of Drug Paraphernalia.3
        3 35 Pa.C.S.[] § 780-113.4(a)(1); 35 Pa.C.S.[] § 780-
        113(a)(30); 35 Pa.C.S.[] § 780-113.1(a)(3); 35 Pa.C.S.[] §
        780-113(a)(16); and 35 Pa.C.S.[] § 780-113(a)(32),
        respectively.    Count Four: Conspiracy—Manufacture,
        delivery, or possession with intent to manufacture or
        deliver, was withdrawn.

     On December 4, 2018, Appellant was sentenced to an aggregate
     period of 54 months to 108 months of incarceration as follows:

        Count One—Operating a Methamphetamine Lab: 30 months
        to 60 months of incarceration, consecutive to any other
        state sentence currently being served.

        Count Two—Unlawful Delivery or Unlawful Manufacturing:
        [24] months to [48] months of incarceration, consecutive to
        Count One.

        Count    Three—Possession          of     Liquefied    Ammonia
        Gas/Precursors/Chemicals:      7        years    of   probation,
        consecutive to Count Two.

        Count Five—Possession (methamphetamine): Merged with
        Count One[.]

        Count Six—Possession of Drug Paraphernalia: Merged with
        Count One[.]

     On December 14, 2018, Appellant filed a post-sentence motion
     seeking an arrest of judgment[,] … a new trial[,] and a
     modification of the sentence. On December 17, 2018, the post-
     sentence motion was denied. On December 28, 2018, Appellant
     filed a Notice of Appeal. On January 2, 2019, the court directed
     the Appellant to file a [Pa.R.A.P.] 1925(b) [s]tatement … within
     21 days. On January 16, 2019, Appellant’s new counsel filed a
     Motion for Extension of Time to allow him to review the trial
     transcripts before filing the [Rule 1925(b) statement]. On January


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      24, 2019, this court granted Appellant an extension of twenty-one
      (21) days from the filing of the transcripts.

      On February     4,   2019,   Appellant   filed   his   [Rule   1925(b)
      statement].

Trial Court Opinion (“TCO”), 7/5/19, at 1-5 (some citations and footnotes

omitted).

      Appellant now presents the following questions for our review:
       I.   Whether or not the fact that Appellant’s sentence was based
            on the wrong prior record score renders his sentence illegal
            requiring that his case be remanded to the trial court for
            resentencing that is consistent with guidelines that
            cor[re]spond with his accurate score?

      II.   Whether Appellant’s convictions on count 1 and count 2 of
            the information should have merged for the purpose of
            sentencing?

     III.   Whether the trial court committed a reversible error when it
            admitted testimony about a narcotics identification test
            (“NIK test”)?

      IV.   Whether or not the Commonwealth presented sufficient
            evidence to prove [A]ppellant’s guilt beyond a reasonable
            doubt as to the convictions [at counts 1 and 2]?

Appellant’s Brief at 3-4 (unnecessary capitalization omitted).        For ease of

disposition, we will address Appellant’s claims in reverse order.

      In Appellant’s fourth question for our review, he asserts two distinct but

related claims that the evidence was insufficient to support his convictions for

1) operating a methamphetamine lab (“OML”), 35 Pa.C.S. § 780-113.4; and

2) unlawfully manufacturing a controlled substance (“MCS”), 35 Pa.C.S. §

780-113(a)(30). Appellant asserts that the uncontradicted testimony of Mr.

Grassi established that he was solely responsible for the methamphetamine




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manufacturing    operation   discovered   at   Appellant’s   residence,   thereby

ostensibly rendering the evidence insufficient for both claims.

      The trial court determined that Appellant waived these claims due to the

vagueness with which he raised them in his Pa.R.A.P. 1925(b) statement. See

TCO at 6. The Commonwealth explicitly adopted the trial court’s reasoning

for rejecting Appellant’s sufficiency claims. See Commonwealth’s Brief at 3.

We agree.

      In Appellant’s Rule 1925(b) statement, he presented the following

claim: “Appellant argues that the Commonwealth failed to present sufficient

evidence to find [him] guilty beyond a reasonable doubt of the above[-]listed

convictions.”   Appellant’s Rule 1925(b) statement, 2/4/19, at 4 ¶ 1

(unnumbered pages).      Rule 1925(b)(4)(ii) provides that a Rule 1925(b)

statement “shall concisely identify each error that the appellant intends to

assert with sufficient detail to identify the issue to be raised for the judge.”

Pa.R.A.P. 1925(b)(4)(ii) (emphasis added). Generally, if an appellant “wants

to preserve a claim that the evidence was insufficient, then the 1925(b)

statement needs to specify the element or elements upon which the evidence

was insufficient. This Court can then analyze the element or elements on

appeal.” Commonwealth v. Williams, 959 A.2d 1252, 1257 (Pa. Super.

2008) (quoting Commonwealth v. Flores, 921 A.2d 517, 522 (Pa. Super.

2007) (superseded by statute and overruled in part on other grounds)

(emphasis omitted)). A failure to do so may result in waiver. Id.




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      Here, a jury convicted Appellant of six separate criminal offenses. As is

plain from his Rule 1925(b) statement, Appellant challenged the sufficiency of

all six offenses, but failed to specify a single element of any offense that had

not been proven at trial.     Moreover, the nature of Appellant’s sufficiency

claim—as now presented to this Court—is not at all obvious from the record

below. Notably, although the trial court attempted to provide an alternative

analysis on the merit of Appellant’s claim(s) after initially finding waiver, it did

not address Appellant’s assertion that Mr. Grassi’s testimony alone ostensibly

established the insufficiency of the evidence.       This is precisely why Rule

1925(b)(4)(ii) demands adequate specificity in a Rule 1925(b) statement.

Accordingly, we conclude that Appellant waived his sufficiency claim(s)

because of the vagueness of his Rule 1925(b) statement.

      Even had Appellant not waived his sufficiency claims, we would deem

them meritless. Our standard of review of sufficiency claims is well-settled:

             A claim challenging the sufficiency of the evidence is a
      question of law. Evidence will be deemed sufficient to support the
      verdict when it establishes each material element of the crime
      charged and the commission thereof by the accused, beyond a
      reasonable doubt. Where the evidence offered to support the
      verdict is in contradiction to the physical facts, in contravention to
      human experience and the laws of nature, then the evidence is
      insufficient as a matter of law. When reviewing a sufficiency
      claim[,] the court is required to view the evidence in the light most
      favorable to the verdict winner giving the prosecution the benefit
      of all reasonable inferences to be drawn from the evidence.

Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000) (internal

citations omitted).



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       As we must view the evidence in a light most favorable to the

Commonwealth, we assume that the jury did not find Mr. Grassi’s testimony

credible, at least insofar as it tended to absolve Appellant. “It is a basic tenet

of our system of jurisprudence that issues of credibility are properly left to the

trier of fact for resolution.” Commonwealth v. Whack, 393 A.2d 417, 419

(Pa. 1978). Moreover, there was ample evidence of Appellant’s culpability for

this crime,2 including his own admission (after he was Mirandized) that a batch

of methamphetamines was under production at the time of his arrest. See

TCO at 3. Accordingly, even had Appellant not waived his sufficiency claims,

we would deem them meritless.

       In Appellant’s third claim, he argues that the trial court committed

reversible error by admitting evidence of the result of the NIK test conducted

after the controlled buy that occurred on or about July 23, 2017. Appellant

asserts that by testifying to the results of that test, Agent Nicholas VanDamia

“was permitted to testify about a topic that is outside the general knowledge

of a layperson.” Appellant’s Brief at 28. Appellant argues that there was no

colloquy to establish Agent VanDamia’s expertise, nor any evidence presented




____________________________________________


2 The trial court thoroughly summarized the evidence supporting Appellant’s
conviction for each offense in its Rule 1925(a) opinion, and concluded that the
evidence was sufficient with respect to each offense. See TCO at 7-9
(detailing the evidence supporting Appellant’s conviction for OML); id. at 9-
10 (reviewing the evidence supporting Appellant’s conviction for MCS). We
would herein adopt the trial court’s sufficiency analysis as our own.

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regarding general acceptance of the NIK test. Appellant further contends that

by

      allowing the jury to hear this uncorroborated testimony, the [t]rial
      [c]ourt erroneously exposed the jury to unreliable evidence
      offered by a witness[] who had not been qualified as an expert
      competent to offer such evidence. This error likely colored the
      jury’s perception of Appellant and negatively affected their
      deliberations on the charges against him.

Id. at 29-30.

      The trial court determined that this claim was also waived due to

vagueness. See TCO at 14. Appellant presented this issue in his Rule 1925(b)

statement as follows: “Appellant argues that the [t]rial [c]ourt erred and/or

committed an abuse of discretion in denying … Appellant’s objection to

allowing Agent Nicholas VanDamia of the [AG]’s office to testify to the results

of the NIK test following an alleged controlled buy from … Appellant to a

confidential informant.” Appellant’s Rule 1925(b) statement at 4 ¶ 1. The

trial court found this too vague because Appellant provided “no reference to

why this was an error.” TCO at 14. We agree with the trial court. Appellant

failed to provide any indication in his Rule 1925(b) statement as to why Agent

VanDamia’s testimony regarding the NIK test was legally inadmissible and,

consequently, this issue was waived.

      Moreover, when Appellant’s trial counsel objected, he argued that the

substance purchased during the controlled buy had only been field tested, and

that no official testing had been conducted on the substance.        See N.T.,

10/11/18, at 35-36. Thus, Appellant appeared to challenge the result of the


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NIK test at trial (although he presented no citation to any legal authority as

to why such evidence was inadmissible). In Appellant’s brief, however, he

now alleges that Agent VanDamia was not qualified as an expert. These are

substantively different claims. Thus, Appellant has also waived this claim for

failing to present it in the first instance before the lower court. See Pa.R.A.P.

302(a) (“Issues not raised in the lower court are waived and cannot be raised

for the first time on appeal.”).

       In any event, had Appellant not waived this claim, we would still deem

it meritless, as we agree with the trial court that the admission of Agent

VanDamia’s testimony regarding the NIK test result was harmless error,3 even

assuming that testimony was inadmissible. As the trial court explained:


____________________________________________


3 The harmless error standard has been defined by our Supreme Court as
follows:
       In the event of an erroneous admission of evidence, a verdict can
       still be sustained if the error was harmless. An error is harmless
       if it could not have contributed to the verdict, or stated conversely,
       an error cannot be harmless if there is a reasonable possibility the
       error might have contributed to the conviction. We have found
       harmless error where:
          (1) the error did not prejudice the defendant or the
          prejudice was de minimis;

          (2) the erroneously admitted evidence was merely
          cumulative of other untainted evidence which was
          substantially similar to the erroneously admitted evidence;
          or

          (3) the properly admitted and uncontradicted evidence of
          guilt was so overwhelming and the prejudicial effect of the



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       Assuming arguendo it was error to admit testimony about the NIK
       test, it was harmless error. First, the testimony offered regarding
       the NIK test was very limited. The Commonwealth clearly
       established the test was presumptive and no further lab tests
       confirmed the result. On cross-examination, Appellant freely
       questioned Agent VanDamia regarding the limitations of the NIK
       test, particularly regarding the fact that the test sometimes
       produced false positives. [N.T., 10/11/18, at] 39-40. Further, the
       Commonwealth elicited from Agent VanDamia that the real
       purpose of the NIK test was not to establish the substance
       obtained from the controlled buy was in fact methamphetamine
       but rather to build up information to permit the police to obtain a
       search warrant for Appellant’s property. Appellant was never
       charged in connection with the controlled buy; Appellant was only
       charged as a result of the drugs and paraphernalia found at the
       residence. There was no prejudice to Appellant in the admission
       of the very brief testimony regarding the NIK test and Appellant’s
       claim must be dismissed.

TCO at 16-17.       We agree with the trial court.   Whatever unfair prejudice

resulted from the brief mention of the results of the NIK test was offset by

further testimony regarding the limitations of the test. Moreover, we would

add that the “properly admitted and uncontradicted” evidence of Appellant’s

guilt was overwhelming. Poplawski, 130 A.3d at 716. Thus, had Appellant

not waived this claim, we would still conclude that any evidentiary error

stemming from Agent VanDamia’s testimony about the results of the NIK test

was harmless.

       In Appellant’s second claim, he asserts that his sentences for OML and

MCS should have merged. He argues that both offenses arose “from a single

____________________________________________


          error was so insignificant by comparison that the error could
          not have contributed to the verdict.

Commonwealth v. Poplawski, 130 A.3d 697, 716 (Pa. 2015) (citations
and quotation marks omitted).

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act, at the same location, on the same day[,]” and that both offenses

“articulate essentially the same elements.”           Appellant’s Brief at 24.

Appellant’s merger claim “raises a challenge to the legality of his sentence.”

Commonwealth v. Kiley, 216 A.3d 1123, 1127 (Pa. Super. 2019).

“Therefore, our standard of review is de novo and our scope of review is

plenary.” Id.

           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. § 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.
      Id.

Commonwealth v. Jenkins, 96 A.3d 1055, 1056 (Pa. Super. 2014).

      The Controlled Substance, Drug, Device and Cosmetic Act (“the Act”)

provides that a “person commits the offense of [OML] if the person knowingly

causes   a   chemical   reaction   involving   ephedrine,   pseudoephedrine     or

phenylpropanolamine, or any other precursor or reagent substance … for the

purpose of manufacturing methamphetamine or preparing a precursor or

reagent substance for the manufacture of methamphetamine.” 35 P.S. § 780-

113.4(a)(1) (emphasis added).          The Act also prohibits MCS, or “the



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manufacture … or possession with intent to manufacture … a controlled

substance….” 35 P.S. § 780-113(a)(30) (emphasis added).

      A jury convicted Appellant of both charges, and the trial court sentenced

him to separate, consecutive sentences for each offense.       The trial court

concluded that these offenses did not merge for sentencing purposes,

reasoning that not all the statutory elements of one offense are included in

the other, because the offenses have distinct mens rea elements. See TCO

at 18-19. The trial court was silent as to whether both offenses arose from

the same criminal act. The Commonwealth relies entirely on the trial court’s

analysis. See Commonwealth’s Brief at 3.

      The trial court’s merger analysis was flawed. Initially, the court was

correct to note that the offenses contain distinct mens rea elements. Proof of

OML requires that a person knowingly manufactures methamphetamine,

whereas proof of MCS requires that a person intentionally manufactures the

same substance under the factual predicates of this case.      35 P.S. § 780-

113.4(a)(1); 35 P.S. § 780-113(a)(30). The trial court further acknowledged

that the Crimes Code “is clear that an intentional act subsumes the culpability

of a knowing act, but a knowing act does not subsume the culpability of an

intentional act.” TCO at 19 (citing 18 Pa.C.S. § 302(e)). However, the Court

then hastily concluded that merger must not apply. Id.

      To the contrary, the fact that the intentional act of manufacturing

methamphetamine       subsumes      a   knowing     act   of    manufacturing

methamphetamine is precisely why all of the statutory elements of OML are

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included within the statutory elements of MCS, in satisfaction of the elements

test set forth in 42 Pa.C.S. § 9765. While not every commission of OML will

also result in the commission of MCS, every MCS offense involving the

manufacturing of methamphetamine will necessarily satisfy the elements of

OML, because every intentional act of producing the substance is also a

knowing act of producing the same. Indeed, this Court recently held that OML

is a lesser-included offense of MCS when arising out of the same criminal act

of producing methamphetamine, although it did not specifically analyze the

mens rea elements of the two offenses. See Commonwealth v. Kiley, 216

A.3d 1123, 1128–29 (Pa. Super. 2019). Nevertheless, Kiley is binding on this

Court, and due to the fact that the trial court’s elements-test analysis is

unsound, we would conclude that it does not call Kiley into question in any

event.

        Thus, merger applies here if Appellant’s commission of the crimes of

OML and MCS arose from the same criminal act. Although the trial court did

not analyze that portion of the merger test, it is plain from the record that

both offenses stem from the discovery of Appellant’s methamphetamine

manufacturing operation during the search of his home on or about July 27,

2017.     Accordingly, the factual predicates of both offenses are the same

conduct in the case sub judice and, therefore, the offenses should have

merged for sentencing purposes. Appellant’s separate sentences for OML and

MCS are illegal. Thus, we must remand for resentencing.




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      Finally, Appellant asserts that the trial court applied an incorrect prior

record score in the calculation of the guideline sentencing ranges for his

offenses. The Commonwealth agrees, see Commonwealth’s Brief at 3, and

joined Appellant’s motion to remand for resentencing, which is currently

pending before this Court.     Indeed, the trial court also found this claim

meritorious. See Memorandum Order, 7/5/19, at 1-2. Accordingly, no further

analysis is needed, and we have already concluded that a remand for

resentencing is required in this case due to Appellant’s illegal sentence. The

joint motion to remand for resentencing is granted.

      In sum, we conclude that Appellant’s sufficiency claim is waived and,

even if it had not been waived, it is meritless. Appellant’s evidentiary claim is

also waived, but, in any event, meritless. However, Appellant is entitled to a

new sentencing hearing because his sentences for OML and MCS should have

merged, and because his prior record score was incorrectly calculated.

      Judgment of sentence vacated.           Case remanded for resentencing.

Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/13/2020




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