J-S39044-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,          :       IN THE SUPERIOR COURT OF
                                       :             PENNSYLVANIA
                Appellee               :
                                       :
           v.                          :
                                       :
LARRY THOMAS,                          :
                                       :
                Appellant              :           No. 1404 EDA 2014

   Appeal from the Judgment of Sentence entered on December 19, 2013
            in the Court of Common Pleas of Philadelphia County,
                Criminal Division, No. CP-51-CR-0006620-2013

BEFORE: BOWES, OTT and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                        FILED JULY 17, 2015

     Larry Thomas (“Thomas”) appeals from the judgment of sentence

imposed following his convictions of possession of a controlled substance

(“simple possession”) and possession with intent to deliver a controlled

substance (“PWID”). See 35 P.S. §§ 780-113(a)(16), (30). We reverse and

remand for resentencing.

     On May 3, 2013, a narcotics police officer arrested Thomas after

observing him perform a hand-to-hand exchange with Helen James

(“James”) on Union Street in Philadelphia.   A search revealed $301.00 in

U.S. currency on Thomas’s person and two bags of cocaine on James’s

person.
J-S39044-15


        Following a non-jury trial, the Honorable Sean F. Kennedy (“Judge

Kennedy”) found Thomas guilty of simple possession and PWID. 1               On

December 19, 2013, Judge Kennedy sentenced Thomas to one to two years

in prison for the PWID conviction, and three years of probation for the

simple possession conviction, to run consecutively.      Thomas filed a timely

Post-Sentence Motion challenging the legality of his sentence. The Motion

was denied by operation of law.

        Thomas filed a timely Notice of Appeal.    On May 12, 2014, the trial

court ordered Thomas to submit a concise statement of errors complained of

on appeal, in accordance with Pa.R.A.P. 1925(b). Thomas filed a timely Rule

1925(b) Concise Statement, and the trial court filed an Opinion.

        Thomas raises the following issue on appeal: “Did the [trial] court [err

by] issuing separate sentences to [Thomas] for possession with intent to

deliver a [controlled] substance and possession of a controlled substance

when the two offenses should have merged for purposes of sentencing[?]”

Brief for Appellant at 6.

        Thomas argues that the offenses should have merged for the purposes

of sentencing, and requests that the case be remanded to the trial court for

resentencing.    Id. at 10, 12.    The Commonwealth agrees with Thomas’s

argument and does not oppose resentencing. Brief for Appellee at 5.




1
    Judge Kennedy acquitted Thomas of criminal conspiracy.


                                   -2-
J-S39044-15


      “A claim that the trial court imposed an illegal sentence by failing to

merge sentences is a question of law. Accordingly, our standard of review is

plenary.”    Commonwealth v. Duffy, 832 A.2d 1132, 1137 (Pa. Super.

2003) (citation omitted).

      Convictions for separate crimes may merge where “the crimes arise

from a single criminal act and all the statutory elements of one offense are

included in the statutory elements of the other offense.” See 42 Pa.C.S.A.

§ 9765.     Further, where crimes merge for sentencing purposes, “the court

may sentence the defendant only on the higher graded offense.”            Id.

Simple possession is a lesser-included offense to PWID when both charges

arise from the same criminal act. See Commonwealth v. Johnson, 501

A.2d 1119, 1123 (Pa. Super. 1985).

      Here, Thomas’s convictions arose from a single criminal act, the sale of

drugs to James. See Trial Court Opinion, 12/12/14 at 5 (stating that “there

was no doubt that [Thomas’s] convictions for PWID and simple possession

arose from one criminal act”).     Thus, the trial court erred in imposing

separate, consecutive sentences for simple possession and PWID. See Id.

Therefore, because the trial court’s error affects the sentencing scheme, we

reverse the judgment of sentence and remand for resentencing. See Id. at

6.

      Judgment of sentence reversed.      Case remanded for resentencing.

Jurisdiction relinquished.



                                  -3-
J-S39044-15


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/17/2015




                          -4-
