J-S27041-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    MCKINLEY WILLIAM BERRY                     :
                                               :
                       Appellant               :   No. 1794 WDA 2018

             Appeal from the PCRA Order Entered December 3, 2018
       In the Court of Common Pleas of Butler County Criminal Division at
                        No(s): CP-10-CR-0000288-2016


BEFORE:      OLSON, J., OTT, J., and COLINS*, J.

MEMORANDUM BY COLINS, J.:                                FILED JUNE 25, 2019

       Appellant, McKinley William Berry, pro se, appeals from the order

entered December 3, 2018, that dismissed his first petition filed under the

Post Conviction Relief Act (“PCRA”)1 without a hearing. We affirm.

       This Court previously fully and correctly set forth the relevant facts and

procedural history of this case as follows:

       Appellant and his co-conspirators . . . attempt[ed] to rob drug
       dealers . . . [T]he Commonwealth offered a plea agreement to
       Appellant. That agreement would dismiss all other charges and
       permit Appellant to plead guilty to “burglary, robbery, and criminal
       conspiracy to commit aggravated assault.” N.T., 1/24/2017, at
       3-4. In addition, the Commonwealth and Appellant agreed to a
       sentence of five to ten years of incarceration for burglary, a
       consecutive three-and-a-half to seven years of incarceration for
       robbery, and a concurrent five to ten years of incarceration for
       criminal conspiracy. The trial court accepted the plea agreement
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1   42 Pa.C.S. §§ 9541–9546.



*    Retired Senior Judge assigned to the Superior Court.
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     and scheduled sentencing for March 2, 2017.         The trial court
     imposed the agreed-upon sentence that day.

     On May 26, 2017, Appellant filed pro se a post-sentence motion.
     The trial court denied that motion, and Appellant timely filed pro
     se a notice of appeal. Appellant filed a request with this Court to
     withdraw that appeal, and on July 19, 2017, this Court
     discontinued the appeal. On July 20, 2017, Appellant pro se filed
     a PCRA petition. On July 25, 2017, the PCRA court, not realizing
     the prior appeal was discontinued, dismissed Appellant’s PCRA
     petition without prejudice.

     On October 20, 2017, Appellant filed pro se another PCRA petition.
     Counsel was appointed, and she filed a petition to withdraw and
     no-merit letter pursuant to Commonwealth v. Turner, 544 A.2d
     927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d 213
     (Pa. Super. 1988) (en banc). On December 20, 2017, the PCRA
     court entered an order pursuant to Pa.R.Crim.P. 907 (Rule 907
     notice), which granted counsel’s petition to withdraw and provided
     Appellant 20 days to file a response. Appellant did not respond,
     and on January 19, 2018, the PCRA court dismissed Appellant’s
     petition.

     Appellant timely filed a notice of appeal. On February 12, 2018,
     the PCRA court ordered Appellant to file a concise statement of
     errors complained of on appeal within 21 days pursuant to
     Pa.R.A.P. 1925(b). Appellant did not file a statement, and on
     March 9, 2018, the PCRA court issued an opinion concluding that
     Appellant had waived all issues on appeal for failing to file timely
     a concise statement. See PCRA Court Opinion, 3/9/2018.

     On March 16, 2018, Appellant pro se filed an application for relief
     with this Court, claiming that he did not receive a copy of the
     concise statement order, and requesting that he be permitted to
     file his concise statement. On March 23, 2018, this Court entered
     an order directing the PCRA court to determine whether it had
     served Appellant with a copy of its concise statement order. This
     Court suspended the briefing schedule and retained jurisdiction.
     Meanwhile, on March 19, 2018, Appellant filed a concise
     statement.

     On April 17, 2018, the PCRA court filed an opinion stating that the
     concise statement order was not mailed to Appellant’s proper
     address until March 5, 2018; thus, it concluded Appellant’s
     March 19, 2018 concise statement was timely filed. PCRA Court
     Opinion, 4/17/2018, at 1. The PCRA court, however, also learned

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       that Appellant was never served the Rule 907 notice, which
       granted counsel’s petition to withdraw and permitted Appellant to
       file a response. Thus, the PCRA court request[ed] that this Court
       remand the case to permit Appellant to file a response to the Rule
       907 notice. Id. at 2. . . . [W]e agree[d] with the PCRA court that
       remand is necessary . . .

       Accordingly, we vacate[d] the January 19, 2018 order dismissing
       Appellant’s PCRA petition and remand[ed] for the PCRA court to
       re-file and send its Rule 907 notice to Appellant.

Commonwealth v. Berry, No. 170 WDA 2018, unpublished memorandum at

1-5 (Pa. Super. filed September 5, 2018) (footnotes omitted).

       Upon remand, on November 2, 2018, the PCRA court re-entered its

notice of intent to dismiss all claims without a hearing pursuant to

Pa.R.Crim.P. 907, and, on November 14, 2018, Appellant filed a response. On

December 4, 2018, the PCRA court dismissed Appellant’s petition.             On

December 18, 2018, Appellant filed this timely appeal.2

       Appellant presents the following issues for our review:

       1.    Was the lower court in error to rely upon Appellant’s
       negotiated plea as a means to justify sentencing counsel’s
       coercing Appellant to agree to the terms of the consecutive
       sentences in violation of 42 Pa.C.S.A. § 9765, in contrast to this
       Court’s decision in Commonwealth v. Diaz, 867 A.2d 1285 (Pa.
       Super. 2005); that burglary and robbery merger for sentencing
       purposes, even in a negotiated plea agreement case, to justify not
       agreeing to re-sentence Appellant?

       2.    Was the lower court in error to claim; “...even if the crimes
       were merged, the court is not required to sentence accordingly”
       despite this Court’s ruling in Diaz Id. when Appellant’s plea was


____________________________________________


2 Appellant filed his statement of errors complained of on appeal on
January 10, 2019. The trial court entered its opinion on February 27, 2019.


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      based upon both burglary and robbery as an overall single act to
      accomplish a particular goal?

      3.    Was the lower court in error to claim, “...statutory law and
      decisional law provides that robbery does not merger with
      burglary” in contrast to this Court’s ruling noted in Diaz Id. to
      again decline re-sentencing Appellant to concurrent sentences for
      said offenses?

      4.    Was the lower court in error to deny Appellant’s assertion
      that sentencing and appellate counsel was not ineffective for not
      pursuing Appellant’s consecutive sentences challenges as noted
      herein, within accordance to this Court’s ruling in Diaz Id.?

Appellant’s Brief at 3 (emphasis in original) (suggested answers and

unnecessary capitalization omitted) (some additional formatting).

      “We review the denial of PCRA relief to decide whether the PCRA court’s

factual determinations are supported by the record and are free of legal error.”

Commonwealth v. Medina, 2019 PA Super 119, *8 (filed April 17, 2019)

(quoting Commonwealth v. Brown, 196 A.3d 130, 150 (Pa. 2018)).

      Appellant’s first three issues concern his argument that the trial court

erred in declining to apply the merger doctrine to his charges of burglary and

robbery.   Whether Appellant’s burglary and robbery convictions merge for

sentencing is a question implicating the legality of Appellant’s sentence and is

thus cognizable under the PCRA. See 42 Pa.C.S. § 9543(a)(2)(vii) (eligibility

for relief under PCRA includes claims of “imposition of a sentence greater than

the lawful maximum”).

      Section 9765 of the Judicial Code controls the 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

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     offense. Where crimes merge for sentencing purposes, the court
     may sentence the defendant only on the higher graded offense.

42 Pa.C.S. § 9765.

     A plain language interpretation of Section 9765 reveals the
     General Assembly’s intent to preclude the courts of this
     Commonwealth from merging sentences for two offenses that are
     based on a single criminal act unless all of the statutory elements
     of one of the offenses are included in the statutory elements of
     the other. . . .

     However, our Supreme Court has long recognized that “the same
     facts may support multiple convictions and separate sentences for
     each conviction except in cases where the offenses are greater
     and lesser included offenses.” Commonwealth v. Anderson,
     538 Pa. 574, 650 A.2d 20, 22 (1994). The Court in Anderson
     noted its continuing concern to avoid giving criminals a “volume
     discount” on crime. Id.

Commonwealth v. Calhoun, 52 A.3d 281, 284-85 (Pa. Super. 2012).

     Preliminarily, we note that Appellant’s reliance on Commonwealth v.

Diaz, 867 A.2d 1285 (Pa. Super. 2005), is misplaced, because Diaz states

that burglary and theft by unlawful taking merge for sentencing purposes, not

burglary and robbery. Id. at 1286.

     There is no dispute in the current action that Appellant’s convictions for

burglary and robbery arose out of the same set of facts. Nevertheless, it is

well-settled that “robbery does not merge with burglary” for sentencing

purposes. Commonwealth v. Danzy, 340 A.2d 494, 496 (Pa. Super. 1975).

     Robbery . . . is not a lesser-included offense of Burglary, nor is
     Burglary a lesser-included offense of Robbery. They are two
     separate and distinct crimes, the one, Robbery, being primarily
     concerned with the physical person of the victim, and the other,
     Burglary, being primarily concerned with the entering into a
     building. . . . [T]he Burglary offense does not merge into the
     Robbery offense.


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Commonwealth v. Dockins, 326 A.2d 505, 507 (Pa. Super. 1974).

       We recognize that both Danzy and Dockins are over four decades old

and that the statutory definitions of burglary and robbery have changed within

that time.3 Appellant pleaded to burglary pursuant to 18 Pa.C.S. § 3502(a)(1)

(effective 2014 to 2017), which, at the time he committed his crimes stated:

“A person commits the offense of burglary if, with the intent to commit a crime

therein, the person enters a building or occupied structure, or separately

secured    or   occupied     portion    thereof   that   is   adapted   for   overnight

accommodations in which at the time of the offense any person is present[.]”

Appellant pleaded to robbery pursuant to 18 Pa.C.S. § 3701(a)(1)(iv)

(effective 2014 to present), which states: “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[.]” Under these then-current definitions, all of the statutory elements

of burglary are not included in the statutory elements of robbery and vice

versa. Hence, pursuant to 42 Pa.C.S. § 9765, burglary and robbery do not

merge for sentencing purposes, and the conclusions of Danzy and Dockins

remain sound.




____________________________________________


3Our research has failed to uncover and Appellant has filed to provide us with
any more recent case law on the question of whether burglary and robbery
merge for sentencing purposes.

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      For the reasons given above, we conclude that Appellant’s first three

challenges raised on appeal are meritless. As “[c]ounsel will not be deemed

ineffective for failing to raise a meritless claim[,]” Commonwealth v. Sneed,

45 A.3d 1096, 1115 (Pa. 2012), Appellant’s counsel cannot be deemed

ineffective for failing to raise this merger claim, and Appellant’s final issue on

appeal is likewise without merit.

      Having discerned no error of law, we affirm the order below.           See

Medina, 2019 PA Super 119, *8.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/25/2019




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