Com. v. Bracetty, D.
2655 EDA 2015
| Pa. Super. Ct. | Nov 8, 2016Background
- On Aug. 8, 2014 appellant David Bracetty approached his ex-girlfriend (the Victim) while she stood with their child; a physical struggle ensued in which he took her cellphone and struck/kicked her.
- Victim reported the incident to police the same evening; officers documented a domestic violence report and later observed bite marks, scrapes, and bruises.
- Appellant was arrested later that night for related property damage; the Victim’s cellphone was never returned.
- After a non-jury trial, appellant was convicted of robbery (18 Pa.C.S. §3701(a)(1)(iv)), theft by unlawful taking (§3921(a)), receiving stolen property (§3925(a)), and simple assault (§2701(a)).
- Trial court imposed concurrent prison/probation terms; appellant appealed arguing the theft-related convictions should merge with robbery (illegal/duplicative sentencing).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether theft by unlawful taking must merge with robbery for sentencing | Commonwealth contended robbery and theft are distinct because robbery includes force and theft is the underlying taking; thus separate sentences are appropriate | Bracetty argued both convictions arise from the same criminal act and the elements of theft are subsumed by robbery, so theft must merge into robbery | Court held theft by unlawful taking merges into robbery; vacated sentence for theft (merged into robbery) |
| Whether receiving stolen property sentence can stand alongside theft conviction | Commonwealth argued receiving reflects retention/disposition of the phone after theft and supports separate sentence | Bracetty argued one cannot be both thief and receiver of the same item; duplicate convictions illegal | Court held receiving stolen property sentence could not stand where evidence showed appellant stole the phone; vacated receiving stolen property sentence |
Key Cases Cited
- Commonwealth v. Tessel, 500 A.2d 144 (Pa. Super. 1985) (explains logical impossibility of being both thief and receiver of same property)
- Commonwealth v. Simmons, 336 A.2d 624 (Pa. Super. 1975) (holding sentence may be imposed for either theft or receiving, not both, when based on same act)
- Commonwealth v. Jenkins, 96 A.3d 1055 (Pa. Super. 2014) (sets two-part merger test: same criminal act and element inclusion)
- Commonwealth v. Cianci, 130 A.3d 780 (Pa. Super. 2015) (discusses merger/Elements-based approach and standard of review)
- Commonwealth v. Walls, 449 A.2d 690 (Pa. Super. 1982) (authorizes appellate court to amend sentence directly or remand for resentencing)
- Commonwealth v. Baldwin, 985 A.2d 830 (Pa. 2009) (cited regarding merger analysis principles)